Why Wisconsin’s Voter ID Decision Is a Very Big Deal

A judge just eviscerated the conservatives’ favorite weapon for voter suppression.

A man casts' his ballot in the U.S. presidential election.

A man casts what is most likely his own ballot in the U.S. presidential election on Nov. 6, 2012 in Milwaukee.

Photo by Darren Hauck/Getty Images

Some precautions are necessary—wearing a helmet when you ride a bike, using a seatbelt when you’re in a car—and others seem optional, like grabbing an umbrella on a cloudy day or wearing an apron when you make dinner. Others are dumb. You wouldn’t get snow tires if you lived in Miami, and there’s never a need for volcano insurance (unless you live in the shadow of Mount Etna, or something).

You can add one more item to the list of useless precautions: voter identification laws. In an opinion striking down Wisconsin’s voter ID law—signed in March by Gov. Scott Walker—Judge Lynn Adelman looks at the supposed menace of in-person voter fraud—the GOP’s reason for ID requirements—and finds nothing.

The state’s argument is straightforward: The voter ID law will “deter or prevent fraud by making it harder to impersonate a voter and cast a ballot in his or her name without detection.” To that end, it requires Wisconsin voters to produce an accepted, nonexpired form of state-issued ID to cast a ballot. If a voter lacks an ID, she can apply for one at the Wisconsin Department of Motor Vehicles, provided she has the right documents. And if she lacks a proper ID at the polls, she can cast a provisional ballot, and confirm her identity in-person on the Friday after the election.

Opponents say this unfairly burdens older and low-income people, and minorities in particular. It’s not that nonwhites can’t get identification, but that they are most likely to face circumstances—poverty, geographic isolation, etc.—that make it hard to obtain one. Further, they argue, voter identification isn’t necessary and harms more than it helps. It’s for that reason that the plaintiffs—the League of United Latin American Citizens of Wisconsin—say the law is an unjustified burden on the right to vote.

Judge Adelman agrees, and supports his stance with a treasure trove of evidence. Citing research on the incidence of in-person voter fraud in American elections, Adelman notes that, in eight years of Wisconsin elections—2004, 2008, 2010, and 2012—researchers could identify only “one case of voter-impersonation fraud.” And in that case, it was a man who “applied for and cast his recently deceased wife’s absentee ballot.” Likewise, after “comparing a database of deceased registered voters to a database of persons who had cast ballots in a recent election,” in Georgia, another researcher found “no evidence of ballots being illegally cast in the name of deceased voters.”

Adelman even notes the sheer difficulty of committing in-person voter fraud, throwing water on the claim that this could ever be common. “To commit voter-impersonation fraud,” he says, “a person would need to know the name of another person who is registered at a particular polling place, know the address of that person, know that the person has not yet voted, and also know that no one at the polls will realize that the impersonator is not the individual being impersonated.” He ends with a note that sounds like sarcasm, “Given that a person would have to be insane to commit voter-impersonation fraud, [the law] cannot be deemed a reasonable response to a potential problem.”

He also makes a key point about public perception: Insofar that anyone believes that in-person voter fraud is a problem, it’s because elected officials—almost all of them Republican—treat it as such, as they push for these laws. Put simply, voter impersonation is a fake problem that doesn’t need a solution.

As for the burdens of voter identification? Adelman makes two important points. First, that a substantial number of registered Wisconsin voters—300,000, or 9 percent of the total—lack a qualifying ID. Of these voters, a substantial portion live at or below the poverty line. In practical terms, what this is means is that they lack the time or resources needed to get a valid ID. If you work a low-wage job, odds are good that you can’t take time off to go to the DMV, and even if you could, you would need the cash to obtain the documents you need to prove your identity, like a birth certificate or a passport.

It’s at this point that, in my experience, voter ID proponents scoff at the idea that someone would lack these documents. But it’s more common than you think. According to a 2006 survey from the Brennan Center for Justice, as many as 13 million Americans lack ready access to citizenship documents, which overlaps with the 21 million who lack photo identification. Moreover, millions have inconsistent documents—a passport that doesn’t reflect their current name (a problem for many married women) or a photo ID that doesn’t have their current address. Under the Wisconsin law, both groups would be barred from casting a normal ballot if they went to the polls.

Adelman’s second point elaborates on the burden. If you drive, you receive a daily benefit from the act of gathering one’s documents and getting a license. If the voter ID requirement does anything, it offers the benefit of voting at “no additional cost.” By contrast, he notes, a “person whose daily life did not require possession of a photo ID prior to the imposition of the photo ID requirement is unlikely to derive any benefit” from owning one. At most, they can keep voting. Or, put another way, they have to pay the same costs without the same benefits. It’s unfair.

By the end of Adelman’s opinion, there are no pieces to pick up, and there is no legislative recourse for defenders of voter ID. Adelman ethered the rationale for voter identification, and struck down the law. Now, Republicans and Democrats will fight the upcoming elections on more even ground.

This ruling is significant for more than what it means for Wisconsin. As Ari Berman notes for The Nation, it’s part of a larger trend of courts striking down voter identification laws. In the last year, four other states—Arkansas, Pennsylvania, Missouri, and Texas—have had their requirements reversed by federal courts.

What’s more, the Wisconsin decision marks the first time a voter ID law has been invalidated under Section 2 of the Voting Rights Act, as opposed to a state constitution. In turn, this gives fuel to the Justice Department’s present suits against voter ID laws in North Carolina and Texas—also filed under Section 2.

The real question looking forward is whether Section 2 will survive. The Supreme Court has already destroyed the “pre-clearance” section of the Voting Rights Act, and conservatives are gunning for Section 2 in their drive to end race-conscious policymaking. If successful, they would end the government’s ability to fight voting discrimination, and leave us with a country where states—like Wisconsin—are free to burden the fundamental rights of our most vulnerable citizens.