Over the past year, Wisconsin’s strict Voter ID law has been the subject of both political and legal controversy, as well as the subject of multiple Court proceedings leading up to the 2014 elections. Just over a year ago, the law, which had been overwhelmingly passed by Wisconsin’s Republican-controlled state legislature and signed into law by Governor Scott Walker, was struck down by a Federal District Court Judge largely on the basis of academic studies which purported to find that the law would have a disproportionate impact on minorities and the poor. That decision stood until just months before the November elections, when the law was the subject of multiple appellate proceedings. First, a three Judge panel at the Court of Appeals for the Seventh Circuit reversed the District Court Judge’s imposition of a stay against enforcement of the law, meaning that the law would be in effect for the November elections notwithstanding arguments from several County Clerks that they were not prepared to enforce compliance with the law in such a short period of time and that absentee ballots that were covered by the new law had already been mailed to voters. Roughly a month later, the Supreme Court reversed the Seventh Circuit on the issue of the stay, relying largely on an old Supreme Court precedent regarding the appropriateness of forcing changes to election laws so close to Election Day. Several days before that decision, though, the same Seventh Circuit panel issued its opinion on the merits of the appeal of the District Court Judge’s ruling, reversing the lower court and finding that the law was in fact constitutional. As I noted at the time, it seemed likely that the Supreme Court would uphold the Court of Appeals if the case were brought before it.
Today, though, thee Supreme Court will not be taking up the review of Wisconsin’s Voter ID law, a move that can seems likely to be a setback for opponents of such laws across the country:
The U.S. Supreme Court on Monday denied a challenge to Wisconsin’s strict voter ID law, upholding a policy championed by the state’s Republican governor, and presidential hopeful, Scott Walker.
The law, which was ardently debated during last year’s Wisconsin gubernatorial election, was passed in 2011 and requires voters to show one of eight forms of identification, including a driver’s license and a military ID card. Identification issued by University of Wisconsin campuses are not accepted, though some other student cards are.
Since its passage, the Wisconsin provision has been the subject of multiple legal challenges centered around whether the state’s black and Hispanic populations make up a disproportionate share of the 300,000 Wisconsinites lacking adequate identification.
In 2014, the law was upheld by a panel arguing that the law is similar to Indiana’s, which was upheld by the Supreme Court in 2008, but the Supreme Court then blocked the law’s implementation before the 2014 midterm elections.
During a debate after the Supreme Court blocked the law, Walker said, “It doesn’t matter if there’s one, 100, or 1,000” instances of voter fraud. “Amongst us, who would be that one person who would like to have our vote canceled out by a vote that was cast illegally?”
His Democratic challenger, Mary Burke, called Walker’s comments “shocking,” claiming that the law could deny suffrage to thousands of Wisconsinites.
As I’ve said many times in the past, trying to draw conclusions about why the Supreme Court has declined to accept a case for review is one that is fraught with the danger that the person speculating will simply apply their own biases to the situation. At the most, all that this outcome means is that there were not four Justices on the Court who agreed to accept the appeal and, since the Justices Conferences are always confidential, we aren’t privy to the reasoning behind the rejection of particular cases, at least not until a Justices retires and, perhaps, chooses to share some secrets from behind the curtain. As I noted back in October, though, it seems fairly apparent that the odds in favor of the current Court striking down a Voter ID law like the one in Wisconsin are fairly low. It was only seven years ago, for example, that the Supreme Court upheld a similar law out of Indiana on a 6-3 vote, and the makeup of the Court has not changed sufficiently to cause anyone to think that the precedent established in that case is in any danger of being overruled. At most, the fact that Justice John Paul Stevents, who wrote the majority opinion in that case, was replaced by Elana Kagan may indicate that the 6-3 majority is now 5-4, but that still wouldn’t be a majority. In this case, given that existing precedent and the lack of anything about the Wisconsin case that distinguished it from the Indiana case the Court likely felt that there was no real need for it to review the Seventh Circuit’s decision, and the Justices inclined to be skeptical of Voter ID laws no doubt recognize that they lack the votes necessary to overturn the 2008 opinion.
The effect of all this, of course, is that the Wisconsin law now stands and will be in full effect by the time the 2016 elections roll around. From the perspective of the opponents of these laws, this is certainly a better outcome than a decision from the Court upholding the law would have been since that would blunt efforts to try to fight them in other states. However, as a matter of political momentum this is likely to be a boost to proponents of such laws across the country and will be seen as a setback by opponents. Rick Hasen, who has been critical of Voter ID laws in the past sees a silver lining in today’s developments:
The four liberals could have forced a hearing in this case (by voting to grant cert) but they must not have been confident of the religious conversion either. Similarly, DOJ has done very little to support this case. They are betting on Texas (and to some extent North Carolina), hoping those cases will be better vehicles for getting voter id laws struck down. But relying on Texas to ultimately help Wisconsin is risky. CIn the Texas voter id case, now pending before the 5th Circuit, we have a holding that Texas’s passage of the voter id law was the product of intentional racial discrimination. That’s a finding which should be very hard to reverse on appeal. it provides an easier constitutional path for the Supreme Court to strike down Texas’s voter id law. The upside of that would be a Supreme Court decision striking down a voter id law on constitutional grounds. The downside is that other cases, like Wisconsin, do not involve intentional discrimination and so a Texas holding might not help very much outside of Texas. It would be an outer bound of what’s allowed and forbidden.
Had the Court agreed to hear the Wisconsin case, it is possible it would have read Section 2 of the Voting Rights Act even more narrowly in cases of vote denial, as well as make bad law on the scope of the equal protection clause. In this way, the Court’s refusal to hear Wisconsin’s voter id case may be a blessing in disguise.
The Texas case may be the one that has the best change of getting Supreme Court review. In that case, a Federal District Judge ruled in October of law year that the Lone Star State’s Voter ID law along largely the same grounds as the District Court Judge in Wisconsin had relied on in her ruling in April. In addition, however, the District Court Judge in Texas went further and found that there was evidence of a discriminatory intent behind the law from the start, a factual finding which may put her ruling on a stronger basis on appeal than the Wisconsin case was. Judge Gonzalez also issued an immediate stay against the law even though, by the time she had issued her ruling, there were less than three weeks prior to Election Day. Subsequently, both the Fifth Circuit Court of Appeals and the Supreme Court vacated the stay, largely on the same ground that the Justices had acted when they reimposed the stay on the Wisconsin law. The merits part of the Texas case is currently still pending before the Fifth Circuit Court of Appeals. The North Carolina case, on the other hand, is currently set for trial in July 2015. Either one of these cases, or potentially both, could find their way to the Justices over the coming year. As far as things stand now, though, the Justices seem to be saying that their 2008 precedent stands and that there is no further need to review the matter.
