League of Women Voters of Wis. Educ. Network, Inc. v. Walker

• Decision Date: 31 July 2014
• Docket Number: No. 2012AP584.,2012AP584.
• Citation: 851 N.W.2d 302,2014 WI 97
• Parties: LEAGUE OF WOMEN VOTERS OF WISCONSIN EDUCATION NETWORK, INC. and Melanie G. Ramey, Plaintiffs–Respondents–Petitioners, v. Scott WALKER, Thomas Barland, Gerald C. Nichol, Michael Brennan, Thomas Cane, David G. Deininger and Timothy Vocke, Defendants–Appellants, Dorothy Janis, James Janis, Matthew Augustine, Intervenors–Co–Appellants.
• Court: Wisconsin Supreme Court

851 N.W.2d 302

2014 WI 97

LEAGUE OF WOMEN VOTERS OF WISCONSIN EDUCATION NETWORK, INC. and Melanie G. Ramey, Plaintiffs–Respondents–Petitioners,

v. Scott WALKER, Thomas Barland, Gerald C. Nichol, Michael Brennan, Thomas Cane, David G. Deininger and Timothy Vocke, Defendants–Appellants,Dorothy Janis, James Janis, Matthew Augustine, Intervenors–Co–Appellants.

No. 2012AP584.

Supreme Court of Wisconsin.

Argued Feb. 24, 2014.

Decided July 31, 2014.

For the plaintiffs-respondents-petitioners, there were briefs by Lester A. Pines, Tamara B. Packard, Susan Crawford, and Cullen Weston Pines & Bach LLP, Madison, and oral argument by Lester A. Pines.

For the defendants-appellants, the cause was argued by Clayton P. Kawski, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general, and Maria S. Lazar, assistant attorney general.

For the intervenors-co-appellants, there was a brief by James R. Troupis, Sarah E. Troupis, and Troupis Law Office LLC, Cross Plains; Michael T. Morley, Cranford, N.J.; and Dan Backer and Coolidge–Reagan Foundation, Washington, D.C, and oral argument by Michael T. Morley.

PATIENCE DRAKE ROGGENSACK, J.

¶ 1 We review a decision of the court of appeals ¹ reversing an order of the circuit court ² that declared portions of Wisconsin's voter identification law, 2011 Wis. Act 23, unconstitutional and permanently enjoined its enforcement.

¶ 2 Plaintiffs, the League of Women Voters of Wisconsin Education Network, Inc., and its president, Melanie G. Ramey,³ bring a facial challenge to the law under the Wisconsin Constitution.⁴ The League asserts that the legislature lacked authority to require an elector to present Act 23–acceptable photo identification. It makes the following three arguments: (1) the requirement is an additional elector qualification not listed in Article III, Section 1; (2) the requirement is not one of the five types of election-related laws in Article III, Section 2; and (3) the requirement is not reasonable.

¶ 3 Defendants ⁵ counter that Act 23 does not create an additional elector qualification, but rather, requiring voters to present Act 23–acceptable photo identification is a means to identify qualified voters. They also say that Act 23 comes within the parameters of Article III, Section 2 of the Wisconsin Constitution as a law providing for registration of voters. Defendants further contend that Act 23 is a reasonable regulation that serves the State's significant interests in promoting voter confidence in the integrity of elections, in deterring voter fraud and in orderly election administration.

¶ 4 We conclude that the legislature did not exceed its authority under Article III of the Wisconsin Constitution when it required electors to present Act 23–acceptable photo identification. Since 1859, we have held that “it is clearly within [the legislature's] province to require any person offering to vote[ ] to furnish such proof as it deems requisite[ ] that he is a qualif[i]ed elector.” Cothren v. Lean, 9 Wis. 254 (*279), 258 (*283–84) (1859). Requiring a potential voter to identify himself or herself as a qualified elector through the use of Act 23–acceptable photo identification does not impose an elector qualification in addition to those set out in Article III, Section 1 of the Wisconsin Constitution.

¶ 5 We also conclude that the requirement to present Act 23–acceptable photo identification comes within the legislature's authority to enact laws providing for the registration of electors under Article III, Section 2 because Act 23–acceptable photo identification is the mode by which election officials verify that a potential voter is the elector listed on the registration list.

¶ 6 Finally, we conclude that plaintiff's facial challenge fails because Act 23's requirement to present photo identification is a reasonable regulation that could improve and modernize election procedures, safeguard voter confidence in the outcome of elections and deter voter fraud. See Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 191, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008). Accordingly, we affirm the decision of the court of appeals. ⁶

I. BACKGROUND

¶ 7 We begin with a description of the portions of Act 23 that bear on our analysis. Act 23 requires an elector to present one of nine acceptable forms of photo identification in order to vote. Wis. Stat. § 5.02(6m) (2011–12).⁷ Generally stated, these include: Wisconsin Department of Transportation (DOT) issued driver's license; DOT issued photo identification card; United States uniformed service identification card; United States passport; United States naturalization certificate issued within two years preceding the election; federally recognized Wisconsin Native American tribe's identification card; Wisconsin university or college student identification card; and a citation or notice of driver's license suspension.

¶ 8 Act 23's presentation requirement applies to in-person as well as absentee voting, with some exceptions for, among others, electors who automatically receive absentee ballots under Wis. Stat. § 6.86(2)(a), residents of qualified facilities described in Wis. Stat. § 6.875(1) and military and overseas electors under Wis. Stat. § 6.865(1). § 6.87(4)(b)2., 3., and 5.

¶ 9 If an elector does not present Act 23–acceptable identification on the day of the election in which he or she offers to vote, the elector may cast a provisional ballot. However, the provisional ballot will be counted only if the elector presents Act 23–acceptable identification at the polling location before 4:00 p.m. on the day of the election or at the office of the municipal clerk or board of election commissioners by the following Friday. Wis. Stat. § 6.97(3).

¶ 10 Four months after Governor Walker signed Act 23 into law, the League filed this lawsuit seeking a declaration that the photo identification requirement violated Article III of the Wisconsin Constitution and asking for injunctive relief. After denying defendants' motion to dismiss for lack of standing, the circuit court granted the League's motion for summary judgment. The circuit court concluded that the challenged portions of Act 23 were “unconstitutional to the extent they serve[d] as a condition for voting at the polls” and permanently enjoined defendants “from any further implementation or enforcement of those provisions.”

¶ 11 The court of appeals reversed the circuit court, concluding that: (1) the League had “not shown that the photo identification requirement is on its face an ‘additional qualification’ for voting”; (2) Act 23 was validly enacted pursuant to the legislature's “implicit but broad constitutional authority to establish a voting registration system under which election officials may require potential voters to identify themselves as registered voters”; and (3) that there were no factual findings in the record to support the League's implied argument that the photo identification requirement was so burdensome that it effectively denied people the right to vote.⁸ The League petitioned for review, which we granted.

II. DISCUSSION

¶ 12 The League brings a facial constitutional challenge against Act 23, asserting that the requirement to present an Act 23–acceptable photo identification creates an elector qualification in addition to those set out in Article III, Section 1 of the Wisconsin Constitution, which the legislature has no power to do; that Act 23 exceeds the scope of legislative authority authorized by Article III, Section 2 of the Wisconsin Constitution; and Act 23 is not a reasonable regulation of the elective franchise.

A. Standard of Review

¶ 13 There are two general types of constitutional challenges: facial and as-applied. As we explained in State v. Wood, 2010 WI 17, 323 Wis.2d 321, 780 N.W.2d 63:

A party may challenge a law ... as being unconstitutional on its face. Under such a challenge, the challenger must show that the law cannot be enforced “under any circumstances.” ... In contrast, in an as-applied challenge, we assess the merits of the challenge by considering the facts of the particular case in front of us, “not hypothetical facts in other situations.” Under such a challenge, the challenger must show that his or her constitutional rights were actually violated.

Id., ¶ 13 (internal citations omitted).

¶ 14 The League presents only a facial challenge to Act 23, asserting that the photo identification requirement is void from its inception. The constitutionality of a statute is a question of law that we independently review, while benefitting from the analyses of the circuit court and court of appeals. State v. Smith, 2010 WI 16, ¶ 8, 323 Wis.2d 377, 780 N.W.2d 90.

B. Constitutional Challenge

1. Foundational principles

¶ 15 Because the League brings a facial challenge to Act 23, it “must show that the law cannot be enforced ‘under any circumstances.’ ” Wood, 323 Wis.2d 321, ¶ 13, 780 N.W.2d 63 (citing Olson v. Town of Cottage Grove, 2008 WI 51, ¶ 44 n. 9, 309 Wis.2d 365, 749 N.W.2d 211); see also United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (explaining that a facial challenge to a legislative act is the most difficult of constitutional challenges because the challenger must prove that “no set of circumstances exists under which the Act would be valid”).

¶ 16 We generally presume that statutes are constitutional. Tammy W–G. v. Jacob T., 2011 WI 30, ¶ 46, 333 Wis.2d 273, 797 N.W.2d 854. However, the way in which we address this presumption may vary depending on the nature of the constitutional claim at issue. See e.g., Milwaukee Branch of NAACP v. Walker, 2014 WI 98, ¶¶ 27–41, ––– Wis.2d ––––, 851 N.W.2d 262, also released today. The presumption of constitutionality is based on respect for a co-equal branch of government, and it promotes due deference to legislative acts. Dane Cnty. Dep't of Human Servs. v. Ponn P., 2005 WI 32, ¶ 16, 279 Wis.2d 169, 694 N.W.2d 344. This presumption...