The law's critics say some people who have voted for years won't be able to do so. First-in-nation voter ID trial begins

Voter ID advocates and opponents alike will be watching Wisconsin on Monday as a new federal trial on the state’s photo ID law begins.

The case is the first federal trial under the Voting Rights Act since the Supreme Court struck down part of the law in June, and it’s one of the first cases to challenge voter ID under what’s known as Section 2 of the VRA. Section 2, which was unaffected by the Supreme Court’s decision, prohibits procedures that discriminate based on race and other protected groups.


“I think that everyone’s going to be looking at what happens in Wisconsin,” said Rick Hasen, a University of California, Irvine, law and political science professor and author of Election Law Blog. “Whoever’s on the successful side will say, ‘See, we told you,’ and whoever’s on the losing side will either say the court got it wrong or point to factual differences [in their state], but it will be important because it’s one of the first Section 2 challenges to the voting ID law.”

The trial covers two challenges to the law, one brought by the group Advancement Project, which argues that the Wisconsin law is particularly burdensome on voters of color, and another brought by the American Civil Liberties Union, which focuses on minorities as well as elderly, student, low-income, disabled and homeless voters.

Advancement Project says a statistician working for them found 24.8 percent of registered Latino voters, 16.2 percent of registered African-American voters and 15.7 percent of registered Asian-American voters lack state ID, compared with 9.5 percent of registered white voters.

One of the significant problems with the law, the civil rights groups say, is that it requires a Wisconsin-issued ID, which in turn requires a birth certificate. Minority voters are far less likely to have access to their birth certificates, the groups say, and in some cases have to go to extraordinary measures to obtain them, if they can get them at all. Under the new laws, these voters, many of whom have participated in elections for years, will simply be unable to cast a ballot.

“One of our jobs is to sort of provide information to the court that for middle class or upper middle class people, especially people who don’t live in a city, everybody has a driver’s license, so if you go around with a driver’s license in your pocket, you don’t think anything of being required to show it. But there are lots of people who don’t have driver’s licenses and it’s difficult to get them,” said Advancement Project Programs Managing Director James Eichner, who is arguing the Wisconsin case in court.

“We have a number of witnesses in this case, especially African Americans, who were born in a time and in the South where African Americans weren’t born in hospitals, who can’t get birth certificates,” Eichner continued. “And there are people who are simply not able to get it — there is no birth certificate, or they were born in foster care and don’t know where they were born to obtain a birth certificate. It makes it harder for some people to vote and makes it impossible for some people to vote.”

On the other hand, supporters of the law say it’s essential to cutting down in-person voting fraud.

“I look forward to our department making the case in court next week that voter ID is constitutional. The votes of lawful voters should not be diminished by those casting unlawful ballots,” Wisconsin Attorney General J.B. Van Hollen said in a statement. “It is proper and legal for the state to require a person appearing at the polls to prove that he or she is, in fact, the eligible, registered elector whose vote is to be cast. Photo ID is one tool to help assure those who are qualified to vote can do so and those who are not entitled to vote do not and are held accountable.”

Hasen said the lawyers in the case have a twofold challenge: First, they must argue the facts of the case, as in whether minorities have been disproportionately affected by Wisconsin’s law. What many around the country are watching, though, is the second issue: how the law should be interpreted.

While Section 2 doesn’t require lawyers prove that lawmakers intended the law to be discriminatory, Hasen warns that purely showing a correlation between race and voter ID may not be enough.

“There are issues both under the facts and the law, and both are very important in this case, and anybody who tells you they know how this is going to come out, I would be very skeptical,” Hasen said. “So far there hasn’t been a successful challenge under Section 2 to a voter ID law, and everybody’s going to watch to see what standard the court uses and whether the tests that courts are going to develop to determine violations are going to make it easy or tough to prove them. My sense is that they’re going to make it pretty tough.”

University of Indiana law professor Michael Pitts, who has worked for the Justice Department’s voting division, cautioned though that the impact of one district court case can be minimal, especially given how each state’s laws on voter ID are unique.

“The problem with thinking that Wisconsin is going to set a benchmark for other cases is that every photo ID case seems to be different, not all photo ID laws are the same,” Pitts said. “It’s really unlikely that one district court case is going to set any kind of nationwide bellwether for the national case. If that case eventually works its way up to the Supreme Court and the Supreme Court makes a decision, then you might have something.

Hasen predicts, though, that at least one of the Section 2 cases currently working their way through the courts, including challenges in Texas and North Carolina, is likely to end up before the high court.

One added element of intrigue for some trial-watchers is that if the case were appealed, which is likely regardless of the outcome, it would end up before the 7th Circuit Court of Appeals, which decided another bellwether case on voter ID in Indiana that was upheld by the Supreme Court. The judge that authored that decision, Richard Posner, created a firestorm this month when he suggested his court decided the case wrong, which he later walked back to say he meant that had he had access to the same information he has today when he was deciding the case, he might have decided it differently.

There are 14 judges on the 7th Circuit, including Posner, that rotate into three-judge panels for standard appeals. Sometimes, attorneys can petition for an en banc hearing, which would involve all 14 judges.

Wisconsin’s law is currently not being enforced under a state court injunction, though a second state court injunction was recently struck down on appeal.