One Wis. Inst., Inc. v. Thomsen

• Decision Date: 29 July 2016
• Docket Number: 15-cv-324-jdp
• Citation: 198 F.Supp.3d 896
• Parties: ONE WISCONSIN INSTITUTE, INC., Citizen Action of Wisconsin Education Fund, Inc., Renee M. Gagner, Anita Johnson, Cody R. Nelson, Jennifer S. Tasse, Scott T. Trindl, Michael R. Wilder, Johnny M. Randle, David Walker, David Aponte, and Cassandra M. Silas, Plaintiffs, v. Mark L. THOMSEN, Ann S. Jacobs, Beverly R. Gill, Julie M. Glancey, Steve King, Don M. Mills, Michael Haas, Mark Gottlieb, and Kristina Boardman, all in their official capacities, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

198 F.Supp.3d 896

ONE WISCONSIN INSTITUTE, INC., Citizen Action of Wisconsin Education Fund, Inc., Renee M. Gagner, Anita Johnson, Cody R. Nelson, Jennifer S. Tasse, Scott T. Trindl, Michael R. Wilder, Johnny M. Randle, David Walker, David Aponte, and Cassandra M. Silas, Plaintiffs,

v.Mark L. THOMSEN, Ann S. Jacobs, Beverly R. Gill, Julie M. Glancey, Steve King, Don M. Mills, Michael Haas, Mark Gottlieb, and Kristina Boardman, all in their official capacities, Defendants.

15-cv-324-jdp

United States District Court, W.D. Wisconsin.

Signed July 29, 2016

Bobbie J. Wilson, Perkins Coie LLP, San Francisco, CA, Bruce Van Spiva, Marc Erik Elias, Aria Christine Branch, Colin Zachary Allred, Elisabeth C. Frost, Joseph Wenzinger, Perkins Coie LLP, Washington, DC, Joshua L. Kaul, Rhett Preston Martin, Charles Grant Curtis, Jr., Perkins Coie LLP, Madison, WI, for Plaintiffs.

Brian P. Keenan, Clayton P. Kawski, Jody J. Schmelzer, Sean Michael Murphy, Winn Switzer Collins, Gabe Johnson-Karp, Wisconsin Department of Justice, Madison, WI, for Defendants.

FINDINGS OF FACT & CONCLUSIONS OF LAW

JAMES D. PETERSON, District Judge

Mrs. Smith has lived in Milwaukee since 2003.¹ She was born at home, in Missouri, in 1916. In her long life she has survived two husbands, and she has left many of the typical traces of her life in public records. But, like many older African Americans born in the South, she does not have a birth certificate or other documents that would definitively prove her date and place of birth. After Wisconsin's voter ID law took effect, she needed a photo ID to vote. So she entered the ID Petition Process (IDPP) at the Wisconsin Department of Motor Vehicles (DMV) to get a Wisconsin ID. DMV employees were able to find Mrs. Smith's record in the 1930 census, but despite their sustained efforts, they could not link Mrs. Smith to a Missouri birth record, so they did not issue her a Wisconsin ID. She is unquestionably a qualified Wisconsin elector, and yet she could not vote in 2016. Because she was born in the South, barely 50 years after slavery, her story is particularly compelling. But it is not unique: Mrs. Smith is one of about 100 qualified electors who tried to but could not obtain a Wisconsin ID for the April 2016 primary.

Wisconsin's voter ID law is part of 2011 Wis. Act 23, enacted the year after Wisconsin Republicans won the governorship and majorities in both houses of the legislature. Act 23 was the first of eight laws enacted over the next four years that transformed Wisconsin's election system. Plaintiffs in this case challenge the voter ID law, the IDPP, and more than a dozen other provisions in these new laws, none of which make voting easier for anyone. Plaintiffs contend that the new voting requirements and restrictions were driven by partisan objectives rather than by any legitimate concern for election integrity, that these laws unduly burden the right to vote, and that they discriminate against minorities, Democrats, and the young. Plaintiffs contend that the new election laws violate the First, Fourteenth, Fifteenth, and Twenty-Sixth Amendments to the Constitution, and § 2 of the Voting Rights Act.

This case was tried to the court in May. Over nine extended days, the court heard the testimony of 45 live witnesses, including six experts, with additional witnesses presented by deposition. The parties submitted lengthy post-trial briefs, and the court heard closing arguments on June 30. The opinion that follows is the court's verdict. It sets out in detail the facts that the court finds and the legal conclusions that the court draws from those facts. Because of the large number of claims asserted in this case, and the volume of evidence submitted, the opinion is necessarily long, and few readers will endure to the end. But I will try, in a few pages of introduction, to explain succinctly the court's essential holdings and the reasons for them.

I start with a word about my role. It is not the job of a federal judge to decide whether a state's laws are wise, and I certainly do not have free-floating authority to rewrite Wisconsin's election laws. My task here is the more limited one of pointing out where Wisconsin's election laws cross constitutional boundaries. The Constitution leaves important decisions about election administration to the states. But election laws inevitably bear on the fundamental right to vote, so constitutional principles come into play. The standards that I must apply to plaintiffs' claims require me to examine carefully the purposes behind these laws, and sometimes to draw inferences about the motives of the lawmakers who enacted them. I conclude that some of these laws cannot stand.

Wisconsin's voter ID law has been challenged as unconstitutional before, in both federal and state court. In the federal case, Frank v. Walker , the Seventh Circuit held that Wisconsin's voter ID law is similar, in all the ways that matter, to Indiana's voter ID law, which the United States Supreme Court upheld in Crawford v. Marion County Election Board . The important takeaways from Frank and Crawford are: (1) voter ID laws protect the integrity of elections and thereby engender confidence in the electoral process; (2) the vast majority of citizens have qualifying photo IDs, or could get one with reasonable effort; and (3) even if some people would have trouble getting an ID, and even if those people tend to be minorities, voter ID laws are not facially unconstitutional. I am bound to follow Frank and Crawford , so plaintiffs' effort to get me to toss out the whole voter ID law fails.

If it were within my purview, I would reevaluate Frank and Crawford , but not because I would necessarily reach a different conclusion. A well-conceived and carefully implemented voter ID law can protect the integrity of elections without unduly impeding participation in elections. But the rationale of these cases should be reexamined. The evidence in this case casts doubt on the notion that voter ID laws foster integrity and confidence. The Wisconsin experience demonstrates that a preoccupation with mostly phantom election fraud leads to real incidents of disenfranchisement, which undermine rather than enhance confidence in elections, particularly in minority communities. To put it bluntly, Wisconsin's strict version of voter ID law is a cure worse than the disease. But I must follow Frank and Crawford and reject plaintiffs' facial challenge to the law as a whole.

The most pointed problem with Wisconsin's voter ID law is that it lacks a functioning safety net for qualified electors who cannot get a voter ID with reasonable effort. The IDPP is supposed to be this safety net, but as Mrs. Smith's story illustrates, the IDPP is pretty much a disaster. It disenfranchised about 100 qualified electors—the vast majority of whom were African American or Latino—who should have been given IDs to vote in the April 2016 primary. But the problem is deeper than that: even voters who succeed in the IDPP manage to get an ID only after surmounting severe burdens. If the petitioner lacks a birth certificate and does not have one of the usual alternatives to a birth certificate, on average, it takes five communications with the DMV after the initial application to get an ID. I conclude that the IDPP is unconstitutional and needs to be reformed or replaced. Because time is short with the fall elections approaching, I will issue an injunction targeted to the constitutional deficiencies that I identify.

Judge Lynn Adelman for the U.S. District Court for the Eastern District of Wisconsin has also concluded that the IDPP is likely unconstitutional, and he has issued a preliminary injunction requiring Wisconsin to institute an affidavit procedure. This procedure would allow an elector without an ID to vote by signing an affidavit stating that he or she is a qualified elector but could not get a photo ID. Judge Adelman's injunction provides one type of safety net. But plaintiffs have not asked me to impose that solution, and I will not. The state has already issued an emergency rule under which those who are in the IDPP will get receipts valid for voting. Although that is not a complete or permanent solution, it blunts the harshest effects of the IDPP. I will also order the state to publicize that anyone who enters the IDPP will promptly get a receipt valid for voting. To address this problem over the longer term, I will order the state to reform the IDPP to meet certain standards, leaving it to the state to determine how best to cure its constitutional problems. I take this approach because it respects the state's decision to have a strict voter ID law rather than an affidavit system. But Wisconsin may adopt a strict voter ID system only if that system has a well-functioning safety net, as both the Seventh Circuit and the Wisconsin Supreme Court have held.

The heart of the opinion considers whether each of the other challenged provisions unduly burdens the right to vote, in violation of the First and Fourteenth Amendments. This analysis proceeds under what is known as the Anderson –Burdick framework, which sets out a three-step analysis. First, I determine the extent of the burden imposed by the challenged provision. Second, I evaluate the interest that the state offers to justify that burden. Third, I judge whether the interest justifies the burden. Certain of Wisconsin's election laws fail Anderson –Burdick review. For reasons explained in the opinion, I conclude that the state may not enforce:

• most of the state-imposed limitations on the time and location for in-person absentee voting (although the state may set a uniform rule disallowing in-person absentee voting on the Monday before elections);

• the requirement that "dorm lists" to be used as proof of residence include citizenship information;

• the 28-day durational residency requirement;

• the prohibition on distributing absentee ballots by fax or email; and

• the bar on using expired but

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