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Today, in League of Women Voters v. Walker. the Court of Appeals declared the 2011 voter ID law to be constitutional on its face and, in doing so, vacated an injunction against its enforcement. The decision itself does not disturb a separate injunction against the law in NAACP v. Walker which remains pending before a different district of the Court of Appeals.
However, today’s decision in League of Women Voters may very well result in reversal in NAACP as well. Here’s why.
Today’s decision makes clear that, under the Wisconsin Constitution, the legislature may enact reasonable election regulations unless a challenged regulation is so burdensome that it effectively denies potential voters their right to vote. This is not the standard that was applied by the court in NAACP. While we believe that case ought to be reversed and dismissed, it would appear that, at minimum, the Court of Appeals must vacate the NAACP decision and send the case back to the circuit court with instructions to apply the proper standard.
We at WILL are gratified by today’s decision. On September 5, 2012, we filed an amicus brief on behalf of a diverse group of community leaders, including a former lieutenant governor, a journalist, a retired Milwaukee police detective who specialized in voter fraud, and leaders in the Hispanic and African-American communities, urging that the court show appropriate deference to the legislature and the law be upheld.
There is still a long way to go on voter ID. In addition to League of Women Voters and NAACP, there are two cases pending in federal court. In addition, it appears that the legislature my tweak the law in ways that may materially affect the constitutional calculus. It is important to recognize that the right to vote also includes the right not to have one’s vote diluted through fraud and improper voting. In other words, the franchise presumes – and requires – election integrity. The Wisconsin Institute for Law and Liberty will remain active and vigilant as both the existing and any new cases move forward.