Wisconsin Spotlight: Legislation, Litigation, and Confusion

Six years ago, the Wisconsin legislature and Governor Scott Walker launched a campaign to enact a comprehensive voter suppression scheme that transformed virtually every element of Wisconsin’s election system.  This scheme overhauled Wisconsin’s laws governing absentee and early voting, election-day logistics, and voter registration, and it imposed “the single most restrictivephoto identification requirement in the country.  One Wisconsin judge described these laws as a cure worse than the disease.”  And that was just the beginning.  

Over the past six years, Wisconsin’s voting laws have been subjected to state and federal litigation.  Some of that litigation has stymied some of legislature’s suppressive efforts.  But even when that was the case, those decisions were challenged, reviewed, questioned, and sometimes reversed.  Consequently, through state and local elections, federal midterm elections, primaries and two U.S. presidential elections, what a Wisconsin resident must do to register and vote has been in flux.  Even today, litigation challenging Wisconsin’s voting laws is ongoing.  Whether, and which, eroded voting rights will exist in Wisconsin during the next election is unclear.  

This is guerilla lawmaking.  Wisconsin’s laws foster chaos and confusion rather than stability and integrity.  And for that reason, the Republican-controlled legislature, with the goal of suppressing the rights already-marginalized voters, wins even when it loses.  My point here is this: confusion is just as suppressive as the legislation itself.  To understand the consequences of the seesaw of legislation and litigation, let’s consider what happened in the courts in Wisconsin between 2011 and the 2016 presidential election.

The Legislation

On May 25, 2011, with a U.S. presidential election on the horizon, the Wisconsin legislature enacted an omnibus bill titled Act 23, the first in its series of new election laws.  Act 23’s requirements ranged from fundamental changes to painstaking technicalities.  It included Wisconsin’s first photo identification requirement, eliminated straight-ticket voting, halved the time when municipalities could offer in-person absentee voting, and tripled the durational residency requirement.  It required that university dorm lists used to satisfy the residency requirement for voter registration include citizenship information.  Act 23 also required that student IDs used to satisfy the identification requirement for casting a ballot contain a date of issuance, signature, and expiration date no more than two years after issuance.

Between November 2011 and April 2014, the legislature enacted seven additional voting laws.  Like Act 23, these laws ranged from sweeping restraints to mind-numbing technicalities.  For instance, one law eliminated municipalities’ ability to offer in-person absentee voting before 8 a.m., after 7 p.m., or on weekends.  Another required that poll observers stand between three and eight feet from where voters registered, presented ID, and received their ballot.

State Court Litigation

Prior to the 2012 spring primary, voting rights activists challenged Act 23’s photo ID requirement.  The requirement was enforced during Wisconsin’s spring primary in February 2012. One month after that primary, however, a state court judge temporarily barred the enforcement of the photo ID requirement, and a second state court judge permanently enjoined it about a week later.  Those injunctions prevented the enforcement of the photo ID requirement during the general election in November of 2012.  In other words, within the same election cycle, Wisconsin required voters to present a photo ID to cast a ballot and then did not require voters to present a photo ID to cast a ballot.  And at all times, Wisconsin voters had to follow all other nuances of Act 23.

The disorder didn’t end there.  On July 31, 2014, less than two weeks before a state primary election, the Supreme Court of Wisconsin overturned those state court decisions and upheld the photo ID law.  After reading headlines like, “Wisconsin Supreme Court upholds voter ID law,” a Wisconsin voter might reasonably think that he or she could not vote without a qualifying form of identification.  But because of litigation occurring simultaneously in federal court, that voter would be wrong.

Federal Litigation: Phase One (The 2014 Elections)

In addition to the state court litigation, activists brought parallel challenges to Act 23 in federal court.  On April 29, 2014, District Judge Lynn Adelman of the Eastern District of Wisconsin enjoined the enforcement of the photo ID requirement.  Because of Judge Adelman’s decision, the photo ID requirement was not in place during Wisconsin’s 2014 partisan primary.  But on September 12, 2014, the U.S. Court of Appeals for the Seventh Circuit stayed Judge Adelman’s injunction, and ultimately reversed it less than a month before the 2014 general election, clearing the way for the State to enforce the photo ID requirement.  

Once again, with headlines like, “Appeals panel reinstates Wisconsin’s voter ID law,” a voter might reasonably think that he or she could not vote that November without a qualifying photo ID.  But on October 9, 2014, the U.S. Supreme Court vacated the Seventh Circuit’s stay of the district court’s injunction.  For that reason, the photo ID requirement was not in place on November 4, 2014.   So, during the month before that election, whether voters had to present a qualifying photo ID to cast their ballot changed three times.  And the stakes were high that November: all of Wisconsin’s executive officers, including Governor Scott Walker, and Wisconsin’s eight U.S. Representatives were on the ballot.  

Federal Litigation: Phase Two (The Affidavit Requirement)

After vacating the Seventh Circuit’s stay of Judge Adelman’s decisions and preventing Act 23’s photo ID law from taking effect in 2014, the U.S. Supreme Court declined to hear the case on the merits.   Back in the district court, the plaintiffs asked Judge Adelman to consider the legality of Act 23’s photo ID requirement as applied to voters who were unable to obtain a satisfactory photo ID.  The plaintiffs sought an injunction allowing that category of voters to sign an affidavit attesting to their identity and difficulty obtaining a qualifying ID in lieu of presenting a qualifying ID.  Judge Adelman refused the plaintiffs’ request.  He concluded that the Seventh Circuit’s previous decision tied his hands on this issue: Act 23 was constitutional even without an affidavit option for voters unable to obtain an ID.

This decision, too, was appealed, and the Seventh Circuit disagreed with Judge Adelman’s interpretation.  The Seventh Circuit concluded that its previous decision “did not consider (let alone reject) any contention for relief on behalf of persons who just can’t get acceptable photo ID with reasonable effort.”  Judge Frank Easterbrook, writing for the three-judge panel, noted that the Supreme Court’s decision in Crawford v. Marion County Election Board did not decide that issue either.  Judge Easterbrook contrasted Indiana’s laws, at issue in Crawford, with Wisconsin’s.  Indiana’s photo ID requirement includes an affidavit option which allows a voter in Indiana “who contends that despite effort he has been unable to obtain a complying photo ID,” to “file an affidavit to that effect and have his vote provisionally counted.”  Wisconsin’s Act 23 contains no such safety net.  Thus, the constitutionality of a law that does not provide voters with that last-resort level of protection is unsettled.

So the Seventh Circuit sent the case back to Judge Adelman.  On remand, Judge Adelman followed Judge Easterbrook’s breadcrumbs and enjoined the enforcement of the law without an affidavit option for voters who do not possess and cannot reasonably obtain a qualifying ID.  But with a staggering shift in tone, the Seventh Circuit stayed that injunction pending appeal.  The court found that Judge Adelman’s decision would likely be reversed because it permitted registered voters “to declare by affidavit that reasonable effort would not produce a photo ID” in order to vote.  That decision put the photo ID requirement-without the affidavit option for voters who do not have and are unable to obtain a photo ID with reasonable effort-back on the table.  And that decision came less than three months before the 2016 presidential election.  

Federal Litigation: Phase Three (The 2016 Presidential Election)

In the months leading up to the 2016 presidential election, a second federal district court judge affected voting rights in Wisconsin.  Judge James Peterson of the Western District of Wisconsin struck portions of Wisconsin’s new election laws as unconstitutional.  Judge Peterson’s decision covered more than just the photo ID requirement: it struck the State’s limitations on the time and place of in-person absentee voting, the 28-day residency requirement, the prohibition on distributing absentee ballots by fax or email, among other things.

In this case, the Seventh Circuit refused to stay the district court decision.   So Judge Peterson’s decision, which expanded access to the ballot, remained in place for the 2016 presidential election.  But that Seventh Circuit decision came less than three months before election day and just 12 days after the Seventh Circuit’s contrary decision in the other federal case.  On August 10, 2016, Wisconsin voters saw headline stating, “Federal appeals court stays order that struck down parts of Wisconsin Voter ID,” and “Appeals court blocks voter ID changes.”  A week and a half later, those voters heard that a federal appeals court affirmed changes to the voter ID law.  How were Wisconsin voters expected to reconcile the apparent contradiction?

Objectively, Judge Peterson’s decision expanded access to the ballot in Wisconsin in 2016.  But from the perspective of a voter, trying to abide by this series of voting laws for the first time during a national election, following the ebb and flow of this litigation and legislation is baffling and backbreaking.  Voting should never be that hard.

What We Can Do About It

To be clear, this is not an indictment of civil rights litigation.  These laws make voting difficult-even impossible-for already marginalized populations and they should be challenged in court for that reason. But these suppressive voting measures are insidious in various ways.  Their suppressive effect is multiplied by the confusion that flows from the fluctuation.  So the actions we take to fight back must be as varied as the suppressive efforts themselves.  

Stay motivated, stay focused, and get involved.  Contribute to organizations, like The Franchise Project, that work to make voting less confusing and more accessible for everyone.  Contact your local clerk’s office, which controls the voting of logistics in most states, and ask about early voting hours and locations.  Ask them how they plan to communicate that information to voters.  Learn more about your state’s early voting laws and share what you learn.  Take action now.

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