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

• Decision Date: 30 May 2013
• Docket Number: No. 2012AP584–AC.,2012AP584–AC.
• Citation: 348 Wis.2d 714,2013 WI App 77,834 N.W.2d 393
• Parties: LEAGUE OF WOMEN VOTERS OF WISCONSIN EDUCATION NETWORK, INC. and Melanie G. Ramey, Plaintiffs–Respondents, v. Scott WALKER, Thomas Barland, Gerald C. Nichol, Michael Brennan, Thomas Cane, David G. Deininger and Timothy Vocke, Defendants–Appellants, Dorothy Janis, James Janis, and Matthew Augustine, Intervenors–Co–Appellants.
• Court: Wisconsin Court of Appeals

348 Wis.2d 714

834 N.W.2d 393

2013 WI App 77

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

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

No. 2012AP584–AC.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 31, 2013.

Opinion Filed May 30, 2013.

On behalf of the defendants-appellants, the cause was submitted on the briefs of Thomas C. Bellavia, Carrie M. Benedon, and Clayton P. Kawski, assistant attorneys general, and J.B. Van Hollen, attorney general.

On behalf of the intervenors-co-appellants, the cause was submitted on the briefs of Joseph Louis Olson of Michael Best & Friedrich LLP, Milwaukee, and Michael T. Morley, Washington, D.C.

On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Lester A. Pines, Susan Crawford, and Tamara B. Packard of Cullen Weston Pines & Bach LLP, Madison.

A nonparty brief was filed by Richard M. Esenberg, Michael Fischer, and Thomas C. Kamenick of the Wisconsin Institute for Law & Liberty, Milwaukee, for Margaret Farrow, George Mitchell, Michael Sandvick, Aaron Rodriguez, and Deborah Haywood.

A nonparty brief was filed by Helen Marks Dicks of AARP Wisconsin, Madison, and Daniel B. Kohrman of AARP Foundation Litigation, Washington, D.C., for AARP.

A nonparty brief was filed by Peter E. McKeever and Anne Bensky of Garvey McNeil & Associates, S.C., Madison, for The Wisconsin Democracy Campaign.

A nonparty brief was filed by Richard D. Greenlee and Dyann L. Hafner, assistant corporation counsels, Madison, for Dane County.

A nonparty brief was filed by Lane Fitzgerald of The Fitzgerald Law Firm, Beloit, for The United States Justice Foundation.

Before LUNDSTEN, P.J., HIGGINBOTHAM and BLANCHARD, JJ.

BLANCHARD, J.

[348 Wis.2d 718]¶ 1 In 2011 Wisconsin Act 23, the legislature enacted statutes under which, with narrow exceptions, all persons seeking to vote must present one of several specified forms of photo identification to election officials. The League of Women Voters of Wisconsin Education Network, Inc., and its president (the League) sought a declaration in the circuit court that the photo identification requirement is facially invalid under Article III of the Wisconsin Constitution. This case does not present a challenge to the photo identification requirement on any other state or federal constitutional ground. Agreeing with the League, the circuit court entered a judgment declaring that the requirement is unconstitutional and enjoining state officials from enforcing the challenged statutory provisions. The state officials appeal the judgment.¹

¶ 2 The League makes three primary arguments in support of the circuit court's decision, the second of which is not explicit but strongly implied: (1) the photo identification requirement impermissibly constitutes an “additional qualification” to vote not contained in Article III; (2) the requirement is unconstitutional under the Article III right to suffrage because it imposes a restriction that is on its face so burdensome that it effectively denies potential voters their right to vote, and is therefore constitutionally “unreasonable”; and (3) in creating the requirement, the legislature “exceeded the express authority granted to it” under Article III. The appellant state officials, namely, the governor and the six members of the state Government Accountability Board (GAB), joined by intervenors, contend that the photo identification requirement is constitutional. We conclude that the League fails to carry its heavy burden of overcoming the presumption that the photo identification requirement is, on its face, constitutional.

¶ 3 First, we conclude that the League's “additional qualification” argument is defeated by concessions the League makes and by Wisconsin Supreme Court precedent addressing the authority of the legislature to enact laws allowing officials to ascertain at the polls which potential voters are qualified to vote. The League has not shown that the photo identification requirement is on its face an “additional qualification” for voting, as opposed to a voter registration regulation that allows election officials “to ascertain whether the person offering to vote possessed the qualifications required.” See State ex rel. Cothren v. Lean, 9 Wis. 254, [*279], 258, [*283] (1859).

¶ 4 Second, we reject the League's additional, implied argument that the requirement is unconstitutional under the Article III right to suffrage because it imposes a restriction that is, on its face, so burdensome that it effectively denies potential voters their right to vote, and is therefore constitutionally “unreasonable.” We express no opinion as to whether such an argument might have merit if supported by fact finding regarding the burdens imposed. However, in this facial challenge in which the League does not rely on any fact finding or evidentiary material, the implied argument falls short.

¶ 5 Finally, as to the argument that, even if the requirement is not an “additional qualification” or constitutionally “unreasonable,” the legislature exceeded its authority in enacting it, we conclude that this argument collapses with a concession by the League, which we believe is a warranted concession. The concession is that the legislature has implicit but broad constitutionalauthority to establish a voting registrationsystem under which election officials may require potential voters to identify themselves as registered voters, including by requesting photo identification.

¶ 6 Accordingly, we reverse the circuit court's judgment, and remand for further proceedings consistent with this opinion as may be necessary.

BACKGROUND

¶ 7 As a preliminary matter, we note that a separate constitutional challenge to the photo identification requirement created in Act 23 is currently pending in a different district of this court before another panel of judges, in a case that has been litigated somewhat differently. See Milwaukee Branch of the NAACP v. Scott Walker, No. 2012AP1652 (District II). We highlight from the outset that the case before us involves a purely facial constitutional challenge based on Article III of the state constitution, and not an as-applied constitutional challenge based on any state or federal constitutional provision.² There are fundamentaldifferences between facial and as-applied constitutional claims.

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.” If a challenger succeeds in a facial attack on a law, the law is void “from its beginning to the end.” 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. If a challenger successfully shows that such a violation occurred, the operation of the law is void as to the party asserting the claim.

State v. Wood, 2010 WI 17, ¶ 13, 323 Wis.2d 321, 780 N.W.2d 63 (emphasis added) (citations omitted).

¶ 8 The League argues exclusively that, as written, the photo identification requirement is unconstitutional on its face under Article III of the state constitution. The League does not develop any argument or rely on any evidence, expert or otherwise, establishing the anticipated effects of the requirement on particular persons or groups.

¶ 9 Having made that fundamental distinction, we turn to the relevant constitutional and statutory provisions and the procedural history of this facial challenge.

Relevant Constitutional Provisions

¶ 10 The League invokes two of the three sections of Article III of the constitution: Sections 1 and 2.³ Article III is entitled “Suffrage.”

[348 Wis.2d 724]¶ 11 Section 1 is entitled “Electors.” It defines the term “qualified elector” which is synonymous with qualified voter. We will sometimes call this the “Article III qualified voters section.” It provides: “Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district.” Wis. Const. art. III, § 1.

¶ 12 Section 2 addresses topics on which the legislature “may” enact statutes implementing the right to suffrage of qualified voters. It is entitled “Implementation.” We will sometimes call this the “Article III implementation section.” In reciting the text now, we italicize the subsection most relevant to arguments made on appeal:

Laws may be enacted:

(1) Defining residency.

(2)Providing for registration of electors.

(3) Providing for absentee voting.

(4) Excluding from the right of suffrage persons:

(a) Convicted of a felony, unless restored to civil rights.

(b) Adjudged by a court to be incompetent or partially incompetent, unless the judgment specifies that the person is capable of understanding the objective of the elective process or the judgment is set aside.

(5) Subject to ratification by the people at a general election, extending the right of suffrage to additional classes.

Wis. Const. art. III, § 2 (emphasis added).

Relevant Statutory Provisions

¶ 13 We next turn to the most pertinent statutory provisions, both those that existedbefore Act 23, and those created by Act 23.⁴ There appears to be no disagreement between the parties about the meaning of relevant statutory provisions.

¶ 14 Both before and after enactment of Act 23, every person seeking to vote “shall register” to do so “before voting in any election,” with exceptions not relevant to this appeal. Wis. Stat. § 6.27 (2009–10); Wis. Stat. § 6.27. Thus, for example, it was before and remains the law under Act 23 that, while “same day” registration at...