Wisconsin State Supreme Court engage in some extreme Judicial Activism to save voter id law

[Gothmog]

The Wisconsin state supreme court upheld the Wisconsin voter id law but looked seriously at the poll tax issue and decided that fees paid to obtain the documents necessary to get a “free” id are not allowed and may be poll taxes. In order to find the Wisconsin law constitutional, the Wisconsin state supreme court engaged in some serious judicial activism and created a waiver where a voter who does not have a document necessary to get a free id can file for a waiver. http://wicourts.gov/sc/opinion/DisplayDocument.html?content=html&seqNo=118667

¶69 In order to harmonize the directive of Wis. Stat. § 343.50(5)(a)3., which says no fees; statutes such as Wis. Stat. § 69.22, which impose payment of fees; and Wis. Admin. Code § Trans 102.15(3)(a), which requires certain documents for which electors may be required to pay fees to government agencies, we construe § Trans 102.15(3)(b). We do so to preserve the constitutionality of § 343.50(5), as follows: One who petitions an administrator pursuant to § Trans 102.15(3)(b) for an exception is constitutionally "unable" to provide those documents and they are constitutionally "unavailable" to the petitioner within our interpretation of § Trans 102.13(3)(b), so long as petitioner does not have the documents and would be required to pay a government agency to obtain them.[1]

¶70 Stated otherwise, to invoke an administrator's discretion in the issuance of a DOT photo identification card to vote, an elector: (1) makes a written petition to a DMV administrator as directed by Wis. Admin. Code § Trans 102.15(3)(b) set forth above; (2) asserts he or she is "unable" to provide documents required by § Trans 102.15(3)(a) without paying a fee to a government agency to obtain them; (3) asserts those documents are "unavailable" without the payment of such a fee; and (4) asks for an exception to the provision of § Trans 102.15(3)(a) documents whereby proof of name and date of birth that have been provided are accepted. § Trans 102.15(3)(b) and (c). Upon receipt of a petition for an exception, the administrator, or his or her designee, shall exercise his or her discretion in a constitutionally sufficient manner.[2]

¶71 We further conclude that filing a Wis. Admin. Code § Trans 102.15(3)(b) petition for an exception with a DMV administrator, as set forth above, is not a severe burden on the right to vote. Accordingly, because the burdens of time, inconvenience and costs upon electors' right to vote are not severe under our interpretation of § Trans 102.15, we apply a rational basis level of scrutiny in determining whether Act 23 is constitutional. Mary F.-R., 351 Wis. 2d 273, ¶35; Wagner, 263 Wis. 2d 709, ¶84. As the Supreme Court has explained, it is erroneous to assume that a law that regulates voting must be subject to strict scrutiny. Burdick, 504 U.S. at 432. Strict scrutiny applies only when a statute imposes a severe burden on the exercise of the franchise. Id. at 434.

I read this exception to include any and all documents including a birth certificate from a state other than Wisconsin. This is a major change to the law that makes it a great deal easier to live with and guts the voter suppression effects of the law. There is great language in the opinion on the poll tax issue that will be helpful for the Veasey plaintiffs in the Texas voter id case.

[Scuba]

1. Clear as mud. Does this mean a voter still has to jump through hoops to get an ID? Getting forms ...

... can require travel if one doesn't have internet access. Para 71 says this is "not a severe burden". Well, it's not to the average Joe in Appleton, but he probably already has an ID. It's the poor old lady living with her daughter in Milwaukee who will be burdened.

Further, Para 70 seems to leave the approval of the waiver up to the local DMV Administrator. Seems like an opportunity for shenanigans, not that I wouldn't trust the current Administration (wink, wink).

Also, it's hard to imagine the average voter reading the three paragraphs above and having any clue what they should do. Will Walker's Administration make it easier for voters to understand? His past actions suggest otherwise.

[Gothmog]

2. This law may never take effect

The Federal injunction is still in effect and the DOJ just filed an amicus brief. The State supreme court version will only be meaningful if the federal injunction is dissolved.

The state court ruling is not clear on all issues and I would expect there to be further litigation if the federal injunction is dissolved