Patrick Marley and Jason Stein

Milwaukee Journal Sentinel

MADISON - A panel of three federal judges opened up the possibility Tuesday that Wisconsin voters who have great difficulty getting photo IDs could cast ballots without them.

The unanimous decision by the 7th Circuit Court of Appeals panel keeps the voter ID law in place, but provides a potential way for those who can't get IDs to vote.

For now, such people can't vote, and the case now returns to U.S. District Judge Lynn Adelman in Milwaukee for further proceedings.

The opponents of the voter ID law hope to move quickly. Primaries for Congress and the Legislature are Aug. 9 and the fall election is Nov. 8.

Tuesday's ruling is targeted at those who have severe challenges getting photo IDs, such as people whose birth certificates contain errors or are no longer available.

"The right to vote is personal and is not defeated by the fact that 99 percent of other people can secure the necessary credentials easily," Appeals Judge Frank Easterbrook wrote for the panel.

Gov. Scott Walker and Republicans in the Legislature approved the voter ID law in 2011, but it was blocked for years by state and federal court decisions.

The 7th Circuit Court of Appeals and Wisconsin Supreme Court in separate litigation upheld the law in 2014, and it was in effect for elections this February and last week.

Those challenging the law in federal court tried to continue their case, shifting their focus to those who have difficulties in getting IDs. Adelman threw out that challenge in October, finding it couldn't continue under the federal appeals court's finding that the voter ID law is constitutional.

But the panel of appeals judges on Tuesday ruled that the case could continue for those voters who have challenges getting IDs. They noted instances where government agencies have lost birth certificates in fires or where people have been told they can't get an ID without a Social Security card and they can't get a Social Security card without an ID.

The three judges who issued Tuesday's ruling — Easterbrook, Diane Sykes and Michael Kanne — were all appointed by Republican presidents.

Easterbrook and Kanne were appointed by President Ronald Reagan. Sykes, a former Wisconsin Supreme Court justice, was appointed to the federal bench by President George W. Bush.

Easterbrook and Sykes also were on the panel that upheld the voter ID law in 2014.

The U.S. Supreme Court set a national precedent in 2008 when it upheld Indiana's voter ID law. Legal challenges continue because Wisconsin and other states have adopted voter ID laws more stringent than Indiana's.

For instance, Indiana's law allows people who can't get IDs to sign affidavits at the polls instead of showing IDs. Wisconsin has no such provision — a point the appeals judges noted Tuesday.

"Indeed, one may understand plaintiffs as seeking for Wisconsin the sort of safety net that Indiana has had from the outset," Easterbrook wrote.

"Under Wisconsin's current law, people who do not have qualifying photo ID ... cannot vote, even if it is impossible for them to get such an ID. Plaintiffs want relief from that prohibition, not from the general application of (the voter ID law) to the millions of persons who have or readily can get qualifying photo ID."

Sean Young, an American Civil Liberties Union attorney challenging the law, said his group would seek to establish a system for voters to sign affidavits to vote in Wisconsin.

"We're obviously thrilled with the court's ruling," he said.

Madison attorney Lester Pines said Tuesday's ruling could lead to a victory for a small subset of voters.

"The 7th Circuit has found that the district court has to allow for the presentation of evidence about the hurdles that some people have to obtaining photo ID that actually keep people from voting," said Pines, who is not involved in this case but represented the League of Women Voters of Wisconsin in a separate challenge against the law in state court.

Johnny Koremenos, a spokesman for Attorney General Brad Schimel, emphasized that the case now focuses on a small group of voters. He noted voters can get IDs for free from the state Department of Transportation.

"Given the overwhelming success of the DOT program, and the fact that our state's recent primary elections involved record turnouts, we are confident that we will prevail on the narrow issues that the court remanded on," Koremenos said in a statement.