I.    Introduction

In 2011, Wisconsin adopted Act 23, a law that requires voters to produce a specific form of identification in order to vote. Milwaukee Branch of the NAACP v. Walker, 11-CV- 5492 at *1 (Wis. Cir. Ct. Mar. 6, 2012). In Walker, Plaintiffs brought a motion for a declaratory and injunctive relief to prevent Wisconsin from enforcing this voter identification (voter ID) law. Id. Plaintiffs moved for temporary injunction pending trial. Id. Plaintiffs alleged that the right to vote was a fundamental right granted to all eligible voters of the state through the Wisconsin Constitution. Id. at *2.

The circuit court agreed that Act 23 violated Wisconsin’s constitution because it impaired the fundamental right to vote. Id. at *10. The Court distinguished Act 23 from the voter ID law in Crawford v. Marion County Election Board, 553 U.S. 181 (2008), because the Petitioners in Crawford based their claim on the U.S. Constitution, which does not establish an affirmative right to vote. Id. at *9. Finding a likelihood of Plaintiffs’ success on the merits and evidence of irreparable harm if the law were enforced, the Court granted the temporary injunction. Id. at *1.

II.    Argument

a.    When the Right to Vote Is Constitutionally Guaranteed, Courts Must Grant a Heightened Level of Scrutiny

The Court in Walker found that the right to vote was guaranteed by the Wisconsin state constitution. Id. at *2. In relevant portion, the constitution states: “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.” Id. (citing WIS. CONST. art. III section 1). Based on this language, which sets out the specific qualifications to vote, and prior state supreme court holdings that upheld the right to vote as a “sacred right,” the Court found that the right to vote could not be burdened by the voter ID provision in Act 23.  Id. (citing Dells v. Kennedy, 49 Wis. 555, 6 N.W. 246, 247 (1880)).

In its decision upholding the right to vote against Act 23’s burden, the Court noted that the voter ID law must be subject to a more exacting scrutiny than a rational basis test. Id. at *6. In Walker, Defendants argued that Act 23 must be examined by giving deference to the legislature that drafted the law – a rational basis level of scrutiny. Id. However, the Court disagreed with Defendants and declared that because the right to vote is fundamental, the court must examine the law that impairs that right “carefully and closely.” Id.

In reviewing the law in such a way, the Court noted that generally the legislature’s actions should be presumed constitutional, and that the burden of proof was on the challenger of the law. Id. However, because the law affected a fundamental right, the Court determined that it must “apply a strict or heightened level of review to the statute to determine it remains within that range of authority permitted under the constitution.” Id. at *8 (citing In re Zachary B., 271 Wis. 2d 51, 62 (2004)). The Court stated that under this standard of review, the burden then shifted to the government to justify the law as being narrowly tailored to serve a “proper and compelling government interest.” Id.

b.    The Burden of Acquiring a Voter ID Impairs the Fundamental Right to Vote Guaranteed by the State Constitution

The Court began its close examination of Act 23 by looking to Wisconsin Supreme Court cases involving laws that also precluded voters’ access to the ballot. The Court noted that such laws must be examined not only by their purpose, but also by their impact. Id. at *7 (citing Ollman v. Kawalewski, 238 Wis. 574 (1941), State ex Rel. Wood v. Baker, 38 Wis. 71 (1885), Dells, 49 Wis. 555). “The court concludes that when the issue is whether a legislative enactment substantially impairs the constitutional right to vote, a court has the authority and the obligation at least to consider the actual impact, rather than simply deferring to the stated purpose of the law.” Id. at *8.

Additionally, under the heightened scrutiny standard, the Court considered whether the purpose of the law, which was to uphold the integrity of the election process, was so narrowly tailored to serve the government’s interest that it did not impair a fundamental right. Id. Because the impact of Act 23 was to place a burden on constitutionally qualified voters, particularly the elderly, indigent, and racial minority groups, the Court found that Act 23 was not sufficiently tailored. Id. at *4. Evidence from forty eligible Wisconsin voters demonstrated to the Court that not only did voters have to spend from $14 to $39.50 to obtain birth certificates as a prerequisite to obtaining a voter ID, but also that voters experienced “delay, dysfunctional computer systems, misinformation and significant investment of time to avoid being turned away at the ballot box.” Id. Therefore, the impact of the law, the Court stated, was to burden voters in a way that impaired the fundamental right to vote as guaranteed in the state constitution. Id. at *9.
  
c.    Act 23 Can Be Distinguished from Voter ID laws in Other States, Which Have Been Upheld by Courts

Also important to the Court’s decision was that the present case was distinguishable from the landmark U.S. Supreme Court case, Crawford, 553 U.S. 181, which upheld Indiana’s voter ID law. Id. The Court noted that the cases were dissimilar most predominately in that Crawford was based on a challenge to the right to vote in the U.S. Constitution, while the present case was based upon the right to vote in Wisconsin’s state constitution. Id. Because the U.S. Constitution does not expressly grant a right to vote, while Wisconsin’s constitution does, the Court found that the analysis was drastically different. Id. In distinguishing Walker from Crawford, the Court stated that Walker is founded upon the Wisconsin Constitution which expressly guarantees the right to vote while Crawford was based upon the U.S. Constitution which offers no such guarantee.” Id.

Additionally, the Court noted that while the Indiana law in Crawford allowed for voters without voter IDs to cast provisional ballots, Act 23 does not. Id. at *10. Thus, the Court found that the restriction placed on voters by Act 23 was more severe than in Crawford. Id. Finally, unlike in Crawford, where there was a flawed record for review, the Court declared that Plaintiffs in the instant case presented a substantial and credible record. Id.

The Court also distinguished Walker from a Georgia case, Democratic Party of Georgia, Inc. v. Perdue, 288 Ga. 720, 707 S.E.2d 67 (2011), which upheld the state’s voter ID law. Id. The Court concluded that Walker is distinguishable from the Georgia case in that the Georgia law allowed voters to sign an affidavit in lieu of presenting a voter ID, while the Wisconsin law did not allow for any other provision other than producing a specific form of voter ID. Id.

III.    Discussion

The Court rejected the Wisconsin’s voter ID law based on its impact of impairing the right to vote of those who are constitutionally guaranteed that right. Id. at *9. The premise of the Court’s reasoning was that the right to vote was specifically guaranteed in the state’s constitution. Id. at *1. In contrasting Walker with other cases that have upheld similar voter ID laws, it is pertinent that those cases were either brought under the U.S. Constitution, see Crawford, 553 U.S. 181, which does not guarantee the right to vote, or brought in a state that allows for the state legislature to regulate the qualifications of electors, see Democratic Party of Georgia, 288 Ga. at 707.

It is clear from the jurisprudence of election cases in the U.S. Supreme Court, that restrictions based on the right to vote in the U.S. Constitution will not be examined on a strict scrutiny basis. In Crawford, the U.S. Supreme Court iterated the notion that a restriction on the right to vote was a balancing test, the more severe the restriction, the higher level of scrutiny accorded to the law in question. Crawford, 553 U.S. 181 (citing Burdick v. Takushi, 504 U.S. 428 (1992), Anderson v. Celebrezze, 460 U.S. 780 (1983), Harper v. Virginia Bd. Of Elections, 383 U.S. 663 (1966)). However, in examining the Indiana law, the Court found only that the state must justify the restriction by “relevant and legitimate state interests,” a lower level of scrutiny than that of “proper and compelling state interests” as afforded in Walker. Id. Similarly, in Burdick, the U.S. Supreme Court clarified that the petitioner in that case, “proceed[ed] from the erroneous assumption that a law that imposes any burden upon the right to vote must be subject to strict scrutiny. Our cases do not so hold.” Burdick, 504 U.S. 428. Furthermore, the Court in Burdick stated that “to subject every voting regulation to strict scrutiny and to require that the regulation be narrowly tailored to advance a compelling state interest, as petitioner suggests, would tie the hands of States seeking to assure that elections are operated equitably and efficiently.” Id.

Even where the right to vote is explicitly granted, as in state constitutions, courts have found that the legislature may regulate that right. Thus, there must be a specific prohibition on the regulation of the right to vote. Unlike in Democratic Party of Georgia, in which the Georgia Supreme Court upheld the legislature’s right to pass laws regarding the right to vote, in Weinschenck v. State, 203 S.W.3d. 201 (Mo. 2006), the court held the opposite. In Weinschenk, the Missouri Supreme Court struck down the voter ID law, finding that the state constitution provided that the legislature may not pass a law to regulate the right to vote. Id.

Thus, it can be presumed that the in order for a court to uphold the right to vote against an unreasonably burdensome voter ID law, it must not only be expressly in that state’s constitution, but also clear that the legislature cannot regulate away that right. The first condition ensures that a court must accord a higher level of scrutiny to the law, and that the burden shifts to the government to justify that law. The second condition ensures that the government cannot justify the law based on the legislature’s right to regulate elections. The key, therefore, in preventing disenfranchisement of all voters through regulations such as highly restrictive voter ID laws, is to incorporate a clear and explicit right to vote not only into state constitutions, but also through an amendment to the U.S. Constitution, to safeguard that right for all Americans.

Additionally, it should be noted that the Court in Walker stated that Act 23 was distinct from other voter ID laws that had been upheld in other courts. The severe restrictions in Act 23, which did not allow for alternative means of verifying identification or for casting provisional ballots, sufficiently impaired the constitutional right to vote. It is plausible that other voter ID laws with greater flexibility would satisfy the compelling state interest in protecting the integrity of elections.

IV.    Conclusion

The Court in this case held that a law, which impairs a fundamental right guaranteed in the state constitution, is invalid. Walker, 11-CV- 5492 at *10. The burden placed on voters to obtain voter IDs in the law’s current form was too great, and therefore not justified by the state’s interest in upholding the purity of elections. Id. Case law demonstrates that where a right to vote is explicitly set out in a state constitution, and where the court finds that no other legislative act may override that constitutional right, voter ID laws like Act 23 are an impermissible burden. See Weinschenck, 203 S.W.3d. 201; contra Crawford, 553 U.S. 181, Democratic Party of Georgia, 288 Ga. 720.  Where the right to vote is an explicit constitutional mandate, states may not diminish voters’ access to the polls without a compelling state interest.