Supreme Court Declines Challenge To Wisconsin’s Voter ID Law

Another setback for those opposed to Voter ID laws.

Voter ID Required Sign
Over the past year, Wisconsin’s strict Voter ID law has been the subject of both political and legal controversy, as well as the subject of multiple Court proceedings leading up to the 2014 elections. Just over a year ago, the law, which had been overwhelmingly passed by Wisconsin’s Republican-controlled state legislature and signed into law by Governor Scott Walker, was struck down by a Federal District Court Judge largely on the basis of academic studies which purported to find that the law would have a disproportionate impact on minorities and the poor. That decision stood until just months before the November elections, when the law was the subject of multiple appellate proceedings. First, a three Judge panel at the Court of Appeals for the Seventh Circuit reversed the District Court Judge’s imposition of a stay against enforcement of the law, meaning that the law would be in effect for the November elections notwithstanding arguments from several County Clerks that they were not prepared to enforce compliance with the law in such a short period of time and that absentee ballots that were covered by the new law had already been mailed to voters. Roughly a month later, the Supreme Court reversed the Seventh Circuit on the issue of the stay, relying largely on an old Supreme Court precedent regarding the appropriateness of forcing changes to election laws so close to Election Day. Several days before that decision, though, the same Seventh Circuit panel issued its opinion on the merits of the appeal of the District Court Judge’s ruling, reversing the lower court and finding that the law was in fact constitutional. As I noted at the time, it seemed likely that the Supreme Court would uphold the Court of Appeals if the case were brought before it.

Today, though, thee Supreme Court will not be taking up the review of Wisconsin’s Voter ID law, a move that can seems likely to be a setback for opponents of such laws across the country:

The U.S. Supreme Court on Monday denied a challenge to Wisconsin’s strict voter ID law, upholding a policy championed by the state’s Republican governor, and presidential hopeful, Scott Walker.

The law, which was ardently debated during last year’s Wisconsin gubernatorial election, was passed in 2011 and requires voters to show one of eight forms of identification, including a driver’s license and a military ID card. Identification issued by University of Wisconsin campuses are not accepted, though some other student cards are.

Since its passage, the Wisconsin provision has been the subject of multiple legal challenges centered around whether the state’s black and Hispanic populations make up a disproportionate share of the 300,000 Wisconsinites lacking adequate identification.

In 2014, the law was upheld by a panel arguing that the law is similar to Indiana’s, which was upheld by the Supreme Court in 2008, but the Supreme Court then blocked the law’s implementation before the 2014 midterm elections.

During a debate after the Supreme Court blocked the law, Walker said, “It doesn’t matter if there’s one, 100, or 1,000” instances of voter fraud. “Amongst us, who would be that one person who would like to have our vote canceled out by a vote that was cast illegally?”

His Democratic challenger, Mary Burke, called Walker’s comments “shocking,” claiming that the law could deny suffrage to thousands of Wisconsinites.

As I’ve said many times in the past, trying to draw conclusions about why the Supreme Court has declined to accept a case for review is one that is fraught with the danger that the person speculating will simply apply their own biases to the situation. At the most, all that this outcome means is that there were not four Justices on the Court who agreed to accept the appeal and, since the Justices Conferences are always confidential, we aren’t privy to the reasoning behind the rejection of particular cases, at least not until a Justices retires and, perhaps, chooses to share some secrets from behind the curtain. As I noted back in October, though, it seems fairly apparent that the odds in favor of the current Court striking down a Voter ID law like the one in Wisconsin are fairly low. It was only seven years ago, for example, that the Supreme Court upheld a similar law out of Indiana on a 6-3 vote, and the makeup of the Court has not changed sufficiently to cause anyone to think that the precedent established in that case is in any danger of being overruled. At most, the fact that Justice John Paul Stevents, who wrote the majority opinion in that case, was replaced by Elana Kagan may indicate that the 6-3 majority is now 5-4, but that still wouldn’t be a majority. In this case, given that existing precedent and the lack of anything about the Wisconsin case that distinguished it from the Indiana case the Court likely felt that there was no real need for it to review the Seventh Circuit’s decision, and the Justices inclined to be skeptical of Voter ID laws no doubt recognize that they lack the votes necessary to overturn the 2008 opinion.

The effect of all this, of course, is that the Wisconsin law now stands and will be in full effect by the time the 2016 elections roll around. From the perspective of the opponents of these laws, this is certainly a better outcome than a decision from the Court upholding the law would have been since that would blunt efforts to try to fight them in other states. However, as a matter of political momentum this is likely to be a boost to proponents of such laws across the country and will be seen as a setback by opponents. Rick Hasen, who has been critical of Voter ID laws in the past sees a silver lining in today’s developments:

The four liberals could have forced a hearing in this case (by voting to grant cert) but they must not have been confident of the religious conversion either.  Similarly, DOJ has done very little to support this case. They are betting on Texas (and to some extent North Carolina), hoping those cases will be better vehicles for getting voter id laws struck down. But relying on Texas to ultimately help Wisconsin is risky. CIn the Texas voter id case, now pending before the 5th Circuit, we have a holding that Texas’s passage of the voter id law was the product of intentional racial discrimination. That’s a finding which should be very hard to reverse on appeal. it provides an easier constitutional path for the Supreme Court to strike down Texas’s voter id law. The upside of that would be a Supreme Court decision striking down a voter id law on constitutional grounds. The downside is that other cases, like Wisconsin, do not involve intentional discrimination and so a Texas holding might not help very much outside of Texas. It would be an outer bound of what’s allowed and forbidden.

Had the Court agreed to hear the Wisconsin case, it is possible it would have read Section 2 of the Voting Rights Act even more narrowly in cases of vote denial, as well as make bad law on the scope of the equal protection clause. In this way, the Court’s refusal to hear Wisconsin’s voter id case may be a blessing in disguise.

The Texas case may be the one that has the best change of getting Supreme Court review. In that case, a Federal District Judge ruled in October of law year that the Lone Star State’s Voter ID law along largely the same grounds as the District Court Judge in Wisconsin had relied on in her ruling in April. In addition, however, the District Court Judge in Texas went further and found that there was evidence of a discriminatory intent behind the law from the start, a factual finding which may put her ruling on a stronger basis on appeal than the Wisconsin case was. Judge Gonzalez also issued an immediate stay against the law even though, by the time she had issued her ruling, there were less than three weeks prior to Election Day. Subsequently, both the Fifth Circuit Court of Appeals and the Supreme Court vacated the stay, largely on the same ground that the Justices had acted when they reimposed the stay on the Wisconsin law. The merits part of the Texas case is currently still pending before the Fifth Circuit Court of Appeals. The North Carolina case, on the other hand, is currently set for trial in July 2015. Either one of these cases, or potentially both, could find their way to the Justices over the coming year. As far as things stand now, though, the Justices seem to be saying that their 2008 precedent stands and that there is no further need to review the matter.

FILED UNDER: US Politics,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. JKB says:

    Mandatory voting is going to require mandatory voter id, so really what’s the problem with voter id laws?

  2. humanoid.panda says:

    @JKB: In an America where the federal government is responsible for providing everyone over 18 with a voter ID, you won’t have any liberals opposed to Voter IDs. I somehow doubt that conservatives are going to agree to that.

  3. HarvardLaw92 says:

    Ironically, these laws do not seem to have had the desired effect. The outrage they have engendered among those opposed to them has served as a motivator to strike back against them – by taking steps to ensure that they are not disenfranchised.

    In a bizarre way, Republicans have served up a Democratic GOTV tool.

    Unintended backlash seems to be a feature, not a bug, of Republicans playing games with elections.

  4. John425 says:

    @humanoid.panda: Well, I dunno about that because Voter I.D is Constitutional and mandatory voting is not.

  5. HarvardLaw92 says:

    @John425:

    It’s constitutional as long as the state gives the IDs away for free, otherwise it’s not.

  6. James P says:

    Great news! This makes it more likely the GOP nominee will carry Wisconsin in 2016. It will also help Ron Johnson in his reelection bid.

    This makes the Dems’ attempt to bus illegal aliens to the polls a lot more complicated. It also makes it harder for dead people (another constituency which breaks heavily Democrat) to vote.

  7. Hoot says:

    @HarvardLaw92: “Ironically, these laws do not seem to have had the desired effect.”

    That’s because what you think is the desired effect, voter suppression, is all in your head.

  8. HarvardLaw92 says:

    Lol, given the proliferation of sockpuppets, it was only a matter of time before Hoot Gibson returned from the dead 😀

  9. Hoot says:

    @HarvardLaw92: Can’t handle the truth, eh?

  10. HarvardLaw92 says:

    Jenos – I say this with all seriousness and concern – get help, man. Get help …

  11. bandit says:

    A sad day for the OTB circlejerk of bedwetters

  12. Hoot says:

    @HarvardLaw92: I’m not Jenos and you still can’t handle the truth. There is no whining among Republicans about how voter ID has backfired because it has never been about voter suppression. You only think that because that would be a tactic that you would use if the roles were reversed.

  13. HarvardLaw92 says:

    Of course you aren’t Jenos … 😀

  14. humanoid.panda says:

    @Hoot: Which explains why when the Democrats had a filibuster-proof majority, they worked hard on destroying absentee voting, a notorioulsy fraud-prone voting method, that happens to be preferred by people who vote Republican. Or didn’t they?

  15. HarvardLaw92 says:

    @humanoid.panda:

    Sort of makes one wonder why Republicans, if they are SO concerned about election fraud, didn’t address absentee voting either.

  16. Hoot says:

    @humanoid.panda: That’s a rather sad attempt at deflection. The topic at hand is voter ID. Even sadder is bringing up a “filibuster-proof” Democrat majority when both issues are at the state level, not federal.

  17. humanoid.panda says:

    @Hoot: No, your argument is that Democrats would be suppressing votes if they had the power. For once ,Congress definitely has the power to whatever it wants for national elections- so yes, a filibuster-proof Democratic majority could have ended absentee balloting. Second, please show me one example of Democratic ran states trying to reduce voting by GOP-friendly populations. I’ll wait.

  18. Hoot says:

    No, my argument is that HarvardLaw92 imagines that Republicans want voter ID laws to suppress the vote, because that is what he would do if the roles were reversed.

    “Congress definitely has the power to whatever it wants for national elections- so yes, a filibuster-proof Democratic majority could have ended absentee balloting. ”

    Nonsense. Congress can legislate to ensure that Constitutional rights are safeguarded and act to amend the Constitution regarding elections, but otherwise it is up to the states to manage elections.

    “Second, please show me one example of Democratic ran states trying to reduce voting by GOP-friendly populations.”

    Again, I never said they did. Please read a little closer.

  19. humanoid.panda says:

    @Hoot: Why oh why our “constitutional conservatives” so ignortant of the constitution?

    The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

  20. HarvardLaw92 says:

    but otherwise it is up to the states to manage elections.

    You need to read Article 1 again.

    Question though: why, when the GOP took control of the NC legislature, did they try to pass a law requiring NC resident college students to vote in their home counties instead of on/near campus?

    Is there some wave of college students committing election fraud that we haven’t heard about? Assuming that’s true (it isn’t, but …) how does forcing them to drive back to their home county or request an absentee ballot address the problem?

    Answer: it doesn’t. It WOULD, however, have made it less likely that college students would vote – which of course was the intention all along.

  21. An Interested Party says:

    Is it any wonder that Republicans always seem to do better in midterm elections? The GOP benefits when less people participate in the election process, so of course Republicans support any measure that will curb the vote, particularly voting by people who aren’t agreeable with the GOP agenda…

  22. Hoot says:

    @humanoid.panda: Yes, Congress has the ultimate say in federal elections, however:

    “Congress does not have general authority under the Constitution to
    legislate regarding the administration of state and local elections.
    However, Congress has the authority under a number of constitutional
    amendments to enforce prohibitions against specific discriminatory
    practices in all elections, including federal, state and local elections.”

    Congress could not unilaterally remove the absentee ballot for all elections.

  23. Hoot says:

    @HarvardLaw92: I have no idea about NC, don’t have the time to research it, and don’t trust you to honestly present your questions. To go back to your original point, there are no complaints from Republicans about minorities being more energized to vote because suppressing their votes was never the point in the first place. That is all in your head.

  24. humanoid.panda says:

    @Hoot: This is what exactly my initial argument: when Democrats controlled all 3 branches, they could have done whatever they wanted in national elections, and didn’t.

  25. James Pearce says:

    @Hoot:

    To go back to your original point, there are no complaints from Republicans about minorities being more energized to vote because suppressing their votes was never the point in the first place. That is all in your head.

    Nah, I’m pretty sure in the back of the mind of the most cynical Republican, he’s thinking: This will be a useful tool for voter suppression.

    As you pointed out, Democrats would pull the same thing. (Only they haven’t….recently anyway.)

  26. HarvardLaw92 says:

    @Hoot:

    I have no idea about NC, don’t have the time to research it, and don’t trust you to honestly present your questions.

    Yet, Jenos, you seem to have all the time in the world to post comments on discussion boards. Is Google really that much of a challenge? LOL, if so, here – you can read about it.

    You’re engaging the clutch. When confronted by facts that upset your carefully constructed alternate reality, you disengage, hit the reset button, and double down. Inventive, but it’s been done before.

    There is nothing confusing about my question. What benefit is there to be found with respect to preventing election fraud in forcing college students to vote somewhere besides the county in which they are attending classes?

    Why would NC Republicans try to pass such a law? Trusting me to ask it honestly (whatever that even means) is immaterial. It’s not a difficult question.

    It’s just one that you don’t like the answer to …

  27. Hoot says:

    @HarvardLaw92: Nonsense. And your bizarre obsession with Jenos, whoever that is, shows how you crumble when confronted with reality.

  28. HarvardLaw92 says:

    @Hoot:

    Interesting way of avoiding the question, Jenos.

    Have fun. I’m bored with you.

  29. James P says:

    @HarvardLaw92: THe only “outrage” these laws engender are from far left loons like you who would never vote Republican anyway.

    These laws have not backfired. THey help Republicans (because it prevents illegal aliens from voting). Just be honest and admit that’s why you oppose them. Why do you feel it necessary to lie about your agenda?

    These laws have had the desired effect. They have made it more difficult for illegal aliens and dead people (constituencies which break 99.999% for Democrats) to vote. Yes, I do want to disenfranchise illegal aliens and dead people.

    The effect is that we have won over 800 legislative seats nationwide in the past six years. We’ve won the House and the Senate — these laws have had PRECISELY the effect which was intended when we began to pass them six years ago.

    We know damn well that Obama only won because he bussed illegal aliens to the polls. Barack Hussein Obama did not win one single state which had voter ID laws. He only won states which don’t have them.

    Ergo, we counteracted this by passing voter ID laws. It won us both the House and the Senate, 31 governorships as well as 68 out of 99 state legislative chambers.

    I”d say voter ID laws are working very well.

  30. HarvardLaw92 says:

    There’s that buzzing noise again …

  31. Hoot says:

    @HarvardLaw92:”There’s that buzzing noise again …”

    That means you should take your lithium.

  32. HarvardLaw92 says:

    @Hoot:

    Congress could not unilaterally remove the absentee ballot for all elections.

    De jure? No. De facto? Absolutely, so you are chasing a distinction that has no meaning.

    Imagine: Congress abolishes absentee voting in federal elections. States then have the lovely choice of paying for two separate elections, or of keeping them on the same day.

    Obviously, they aren’t going to pay twice, so they’ll keep the elections on the same day.

    That leaves dear citizen with a conundrum – “you can vote absentee in state and local elections, if you like, but you still have to show up on Tuesday if you want to vote in any federal race.”

    Sort of self-defeating for them to vote absentee, don’t you think?