Scott Walker (left) and J.B. Van Hollen have asked a federal court to reinstate Wisconsin’s voter ID law. Credit: Journal Sentinel files

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Madison — Gov. Scott Walker and Attorney General J.B. Van Hollen are asking a federal court to reinstate Wisconsin's voter ID law, but they have not finalized a plan to comply with a different court's decision requiring the state to provide IDs to people who don't have birth certificates.

The state Supreme Court last month upheld the voter ID law, but the requirement to show photo ID at the polls remains blocked because a federal judge has found it violates the Voting Rights Act and U.S. Constitution.

A new court filing suggests the voter ID law is unlikely to be put in place for the Nov. 4 election, when the GOP governor faces Democrat Mary Burke. She opposes the voter ID law.

State officials say they need to know soon whether the law will be in effect so they can retrain poll workers and send out absentee ballots with the proper information. But the federal appeals court has said it won't rule on reinstating the voter ID law until at least Sept. 12 — around the time absentee ballots will be mailed out.

"I just can't imagine that this could be implemented by the November election without creating a huge mess," said Daniel Tokaji, an election law professor at Moritz College of Law at Ohio State University.

"I think it would be imprudent to put it mildly to try to implement this law pursuant to an order issued after Sept. 12. I think that's just asking for trouble."

The overlapping state and federal litigation has led to conflicting results, with some courts finding the voter ID law acceptable and others deeming it unconstitutional. Supporters of voter ID have to succeed in all cases to put the law back in place.

While the state Supreme Court ruling was a victory for Walker and Van Hollen, the justices included a provision in their decision that would require the state to change the way it gives out ID cards for voting.

In its decision, the Wisconsin Supreme Court rewrote a state rule to say the Department of Transportation must provide free IDs to people even if they cannot produce a birth certificate or other government documents to get them. That's because forcing people to have documents for voting that require government fees would amount to an illegal poll tax, the justices found.

So far, Van Hollen and officials in Walker's Department of Transportation have not said how they would do that.

"If the federal court injunction is lifted, we will implement a solution that is in compliance with the (state) court order," Transportation Secretary Mark Gottlieb said in a recent interview.

But Gottlieb did not provide specifics on how that could be accomplished.

On Tuesday, Walker signed off on allowing the DOT to write new administrative rules on the issue. The DOT estimates doing that will take 200 hours of staff time.

Walker and Republicans in the Legislature in 2011 approved the voter ID law, which says people can vote only if they show a driver's license, state ID card, passport, limited type of student ID, military ID, naturalization certificate or ID issued by a tribe based in Wisconsin.

Four legal challenges followed — two in state court and two in federal court — and the law has been blocked since March 2012.

The two challenges in state court were decided last month by the Wisconsin Supreme Court, with the justices upholding the law 5-2 in one case and 4-3 in the other.

U.S. District Judge Lynn Adelman heard the two federal cases together and in April struck down the law. Walker and Van Hollen appealed the cases to the U.S. 7th Circuit Court of Appeals in Chicago.

Van Hollen and Walker asked to lift the federal block on the voter ID even before the state Supreme Court acted, and renewed their request soon after the state's high court issued its decisions.

Adelman declined this month to put the voter ID law back in place. The appeals court on Thursday said it would not decide whether to put the law back in place until after hearing oral arguments Sept. 12.

That schedule gives Walker's administration more time to develop its plan for giving out ID cards.

The DOT's task is challenging. The agency will risk lawsuits if it does not provide IDs to people who lack key government documents, but officials also will want to make sure people are who they say they are.

"The Wisconsin DOT is put between a rock and a hard place," said Tokaji, the election law professor.

In an opinion earlier this month, Adelman wrote he did not believe the state Supreme Court's decision guaranteed people who don't have birth certificates can get IDs because DOT officials will have discretion in when to issue IDs.

Adelman said the state's high court had given only "cryptic" clues as to how the DOT could accomplish what it must.

"The Wisconsin Supreme Court did not ... set forth any standard that might guide the exercise of the (DOT) administrator's discretion," he wrote.

Karyn Rotker, an attorney with the American Civil Liberties Union of Wisconsin, said the voter ID law should not be put in place, particularly if the state has not spelled out a plan for providing IDs to those without birth certificates. Her organization is one of several that brought the challenge to the law in federal court.

"You would want to see the plan and see something in place before you lifted the injunction," she said. "Otherwise there would be a lot of chaos and deprivation of voting rights."

Rotker and Richard Saks, an attorney with the NAACP's Milwaukee branch, said they were concerned the DOT might make it too difficult to get IDs for those who don't have birth certificates. The NAACP was a plaintiff in one of the cases recently decided by the state Supreme Court.

"The question they have to grapple with is how rigorous a process they want to put people through to get an exception," Saks said.

For now, the focus is on whether the appeals court will put the voter ID law in place in time for the Nov. 4 election.

Ballots are expected to be printed after Sept. 5, after two recounts are completed from the Aug. 12 primaries. Once the ballots are printed, clerks can begin sending absentee ballots to those who request them; they must begin mailing them by Sept. 18 at the latest.

When they send out the absentee ballots, clerks will need to inform recipients whether they need to include copies of their IDs for their votes to count. Poll workers would also need to be trained soon on the voter ID requirements, according to the state Government Accountability Board, which oversees elections.

Van Hollen told the appeals court that state officials would ideally have a ruling on reinstating the voter ID law by Sept. 5. In his latest request, filed Friday, he asked that the court revive the law immediately after oral arguments on Sept. 12.

Wisconsin's case is being watched nationally, along with litigation from North Carolina and Texas.

The U.S. Supreme Court in 2008 upheld Indiana's voter ID law, but the nation's high court is expected to revisit the issue at some point because so many states have passed voter ID laws since then. Those laws differ in some ways from Indiana's and they are being attacked using different legal theories.