Milwaukee Branch Naacp v. Walker, No. 2012AP1652.

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtPATIENCE DRAKE ROGGENSACK
Citation2014 WI 98,851 N.W.2d 262
PartiesMILWAUKEE BRANCH OF the NAACP, Voces de la Frontera, Ricky T. Lewis, Jennifer T. Platt, John J. Wolfe, Carolyn Anderson, Ndidi Brownlee, Anthony Fumbanks, Johnnie M. Garland, Danettea Lane, Mary McClintock, Alfonso G. Rodriguez, Joel Torres and Antonio K. Williams, Plaintiffs–Respondents, v. Scott WALKER, Thomas Barland, Gerald C. Nichol, Michael Brennan, Thomas Cane, David G. Deininger and Timothy Vocke, Defendants–Appellants, Doris Janis, James Janis and Matthew Augustine, Intervenors–Co–Appellants.
Docket NumberNo. 2012AP1652.
Decision Date31 July 2014

851 N.W.2d 262
2014 WI 98

MILWAUKEE BRANCH OF the NAACP, Voces de la Frontera, Ricky T. Lewis, Jennifer T. Platt, John J. Wolfe, Carolyn Anderson, Ndidi Brownlee, Anthony Fumbanks, Johnnie M. Garland, Danettea Lane, Mary McClintock, Alfonso G. Rodriguez, Joel Torres and Antonio K. Williams, Plaintiffs–Respondents,
v.
Scott WALKER, Thomas Barland, Gerald C. Nichol, Michael Brennan, Thomas Cane, David G. Deininger and Timothy Vocke, Defendants–Appellants,
Doris Janis, James Janis and Matthew Augustine, Intervenors–Co–Appellants.

No. 2012AP1652.

Supreme Court of Wisconsin.

Argued Feb. 24, 2014.
Decided July 31, 2014.


[851 N.W.2d 264]


For the defendants-appellants, the cause was argued by Clayton P. Kawski, assistant attorney general, with whom on the briefs (in the court of appeals) was Thomas C. Bellavia, Carrie M. Benedon, and Maria S. Lazar, assistant attorneys general; and J.B. Van Hollen, attorney general.

For the intervenors-co-appellants, the cause was argued by Michael T. Morley, Washington D.C.; with whom on the briefs (in the court of appeals) was Joseph Louis Olson and Michael Best & Friedrich LLP, Milwaukee.


For the plaintiffs-respondents, the cause was argued by Richard Saks, with whom on the brief (in the court of appeals) was B. Michele Sumara, and Hawks Quindel, S.C., Milwaukee.

An amicus curiae brief (in the court of appeals) was filed by Helen Marks Dicks and AARP Wisconsin, Madison; and Daniel B. Kohrman and AARP Foundation Litigation, Washington, D.C., on behalf of AARP.

An amicus curiae brief (in the court of appeals) was filed by Jennifer A. Lohr, Madison, on behalf of Disability Rights Wisconsin.

An amicus curiae brief (in the court of appeals) was filed by Rebecca K. Mason and Rebecca Mason Law LLC, Racine, on behalf of Institute for One Wisconsin, Inc.

An amicus curiae brief was filed by Kristin M. Kerschensteiner, Madison, on behalf of Disability Rights Wisconsin.

PATIENCE DRAKE ROGGENSACK, J.

¶ 1 This appeal arises from a judgment of the Dane County Circuit Court 1 granting declaratory and injunctive relief based on the circuit court's conclusion that 2011 Wis. Act 23, Wisconsin's voter photo identification act, violates the Wisconsin Constitution.

¶ 2 Plaintiffs challenge Act 23 under Article III, Section 1 of the Wisconsin Constitution.2 They contend that the law is invalid

[851 N.W.2d 265]

because “it would severely burden a significant number of qualified voters but [is] not reasonably necess[ary] or designed to deter fraud or otherwise effect an important government interest.” Plaintiffs identify burdens of time, inconvenience and costs associated with Act 23. Emphasizing the difficulties that facial challenges to a statute bear, defendants contend plaintiffs have not shown that Act 23 is anything more than a reasonable, election-related regulation or that the law's requirements amount to a denial of the right to vote.

¶ 3 We conclude that plaintiffs have failed to prove Act 23 unconstitutional beyond a reasonable doubt. In League of Women Voters of Wisconsin Education Network, Inc. v. Walker, 2014 WI 97, ––– Wis.2d ––––, 851 N.W.2d 302, also released today, we concluded that requiring an elector to present Act 23–acceptable photo identification in order to vote is not an additional elector qualification. Id., ¶ 57. In the present case, we conclude that the burdens of time and inconvenience associated with obtaining Act 23–acceptable photo identification are not undue burdens on the right to vote and do not render the law invalid.

¶ 4 We conclude, as did the United Stated Supreme Court in Crawford v. Marion County Election Board, 553 U.S. 181, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008), that “the inconvenience of making a trip to [a state motor vehicle office], gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote.” Id. at 198. Furthermore, photo identification is a condition of our times where more and more personal interactions are being modernized to require proof of identity with a specified type of photo identification. With respect to these familiar burdens, which accompany many of our everyday tasks, we conclude that Act 23 does not constitute an undue burden on the right to vote. Payment to a government agency, however, is another story.

¶ 5 Act 23 provides that the Department of Transportation (DOT) “may not charge a fee to an applicant for the initial issuance, renewal, or reinstatement of an identification card” when “the applicant requests that the identification card be provided without charge for purposes of voting.” Wis. Stat. § 343.50(5)(a)3. (2011–12).3 On its face, then, the law prohibits a government or its agencies from requiring any elector, rich or poor, to pay a fee as a condition to obtaining a DOT photo identification card to vote.4See Harper v. Va. Bd. of Elections, 383 U.S. 663, 666, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (“payment of any fee [may not be] an electoral standard”). The mandate of Act 23 is consistent with the Wisconsin tradition of

[851 N.W.2d 266]

“jealously guard[ing] and protect[ing]” the fundamental right to vote. See State ex rel. Frederick v. Zimmerman, 254 Wis. 600, 613, 37 N.W.2d 473 (1949).

¶ 6 Plaintiffs produced evidence at trial that, in the course of obtaining a DOT photo identification card for voting, government agencies charged them fees to obtain supporting documents for their applications. A common example is a birth certificate, which is satisfactory proof of name, date of birth and citizenship, and can cost $20 to obtain. E.g.,Wis. Stat. § 69.22(1)(a) and (c). The requirement for such documents arose under Wisconsin administrative rules that implement Act 23. E.g.,Wis. Admin. Code § Trans 102.15(3)(a).

¶ 7 In order to resolve the conflict between Act 23 and Wis. Admin. Code § Trans 102.15(3)(a), we interpret the administrative rules and explain that the discretion of the Division of Motor Vehicles (DMV) administrators must be exercised in a constitutionally sufficient manner. Such exercise of discretion requires the issuance of DOT photo identification cards for voting without requiring documents for which an elector must pay a fee to a government agency. 5SeeWis. Admin. Code § Trans 102.15(3)(b) and (c) (permitting issuance of DOT photo identification cards for voting without the documents described in § Trans 102.15(3)(a)). Our conclusion employs a saving construction of § Trans 102.15(3)(b), conforms to Act 23's mandate and relieves a severe burden on the right to vote that would otherwise exist. Because with a saving construction of § Trans 102.15(3)(b) Act 23 does not place a severe burden on the right to vote, we apply rational basis scrutiny and conclude that Act 23 is reasonably related to the State's significant interests.

¶ 8 We have been mindful that the task before us is not to determine whether “Act 23 is the best way to preserve and promote the right to vote.” League of Women Voters, ––– Wis.2d ––––, ¶ 55, 851 N.W.2d 302. Such “policy determinations ... are not properly addressed to the members of the Supreme Court of Wisconsin.” MTI v. Walker, 2014 WI 99, ¶ 181, ––– Wis.2d ––––, 851 N.W.2d 337 (Crooks, J., concurring).

¶ 9 Instead, we apply judicial restraint and constitutional principles to the case at hand. Accordingly, we reverse the judgment of the circuit court and vacate the injunctions the circuit court issued.

I. BACKGROUND
A. Parties

¶ 10 Plaintiffs are the Milwaukee Branch of the NAACP, Voces de la Frontera and numerous individuals residing either in Milwaukee County or in Polk County. The NAACP, an incorporated association with its business address in the City of Milwaukee, contends that “Act 23 will force the Milwaukee Branch of the NAACP to divert substantial resources away from traditional voter registration

[851 N.W.2d 267]

and voter turnout efforts in order to educate and assist voters in procuring Act 23–acceptable photo ID.” NAACP alleges that Act 23 unconstitutionally burdens Wisconsin African–American residents' right to vote.

¶ 11 Voces is Wisconsin's preeminent immigration rights organization. It expresses strong concerns about the burden Act 23 will place on the Latino community and its members as they seek to exercise their franchise. Voces alleges that “Act 23 will force Voces to divert substantial resources away from traditional voter registration and voter turnout efforts in order to educate and assist voters in procuring Act 23–acceptable photo ID.”

B. Act 23

¶ 12 Act 23, with a few limited exceptions, requires electors to identify themselves by presenting Act 23–acceptable photo identification in order to vote. Stated generally, these include: DOT issued driver's license; DOT issued photo identification card; an unexpired DOT photo identification card receipt; 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 citation or notice of driver's license suspension. Wis. Stat. § 5.02(6m). Our review focuses on the second form of acceptable identification, which we refer to as a DOT photo identification card for voting. SeeWis. Stat. § 343.50.

¶ 13 The DMV is the division of the DOT charged with issuing DOT photo identification cards for voting spoken to in Act 23. DOT administrative rules governing DMV's process for issuing these cards require an applicant to document name, birth date, identity, residence and citizenship. A social security card and numerous other documents are proof of identity. Wisconsin Admin. Code § Trans 102.15(4)(a)13. An applicant may prove residence by items such as a utility bill, paycheck stub or similar document that shows name and address. § Trans 102.15(4m).

¶ 14 A certified copy or an original birth certificate is satisfactory proof of...

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