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One Wisconsin Institute, Inc. v. Nichol

United States District Court, W.D. Wisconsin

May 12, 2016

ONE WISCONSIN INSTITUTE, INC., CITIZEN ACTION OF WISCONSIN EDUCATION FUND, INC., RENEE M. GAGNER, ANITA JOHNSON, CODY R. NELSON, JENNIFER S. TASSE, SCOTT T. TRINDL, MICHAEL R. WILDER, JOHNNY M. RANDLE, DAVID WALKER, DAVID APONTE, and CASSANDRA M. SILAS, Plaintiffs,
v.
JUDGE GERALD C. NICHOL, JUDGE ELSA LAMELAS, JUDGE THOMAS BARLAND, JUDGE HAROLD V. FROEHLICH, JUDGE TIMOTHY VOCKE, JUDGE JOHN FRANKE, KEVIN J. KENNEDY, MICHAEL HAAS, MARK GOTTLIEB, and PATRICK FERNAN, all in their official capacities, Defendants.

OPINION & ORDER

JAMES D. PETERSON District Judge

Plaintiffs here challenge a set of Wisconsin laws that have significantly changed the state’s elections. The most significant new law is 2011 Wisconsin Act 23, which requires voters to present one of several specified types of photo Id. But Act 23 and a handful of other new laws passed since 2011 contain approximately a dozen new provisions relating to elections. In general, in addition to the voter ID requirement, the new provisions restrict early and absentee voting and they impose new restrictions on voter registration, presumably to ensure the integrity of Wisconsin elections and to make election administration more efficient.

But plaintiffs contend that the new election laws were actually designed to suppress the votes of African Americans, Latinos, the young, the poor, and voters inclined to vote for Democrats. Plaintiffs mount a comprehensive challenge to the new laws, alleging multiple claims based on Section 2 of the Voting Rights Act of 1965 and various provisions of the United States Constitution.

Now before the court is defendants’ motion for summary judgment, which attempts to pick off each of plaintiffs’ claims. In general, defendants contend that the challenged laws are all legitimate non-discriminatory efforts to improve Wisconsin elections and that they impose, at most, modest burdens on voters. The court concludes that plaintiffs’ claims are justiciable, and that there are genuine disputes about both the interests served by the new laws and the burdens that they impose. Accordingly, the court will deny defendants’ motion for the most part. But the court will grant defendants’ motion with respect to plaintiffs’ challenge to the state’s refusal to accept certain forms of expired and out-of-state IDs, which the parties agree is evaluated under rational basis review. Wisconsin’s decision to exclude these IDs passes constitutional muster under that standard, a determination that the court makes as a matter of law without considering evidence of the associated burdens and benefits.

UNDISPUTED FACTS

Plaintiffs One Wisconsin Institute, Inc. and Citizen Action of Wisconsin Education Fund, Inc. (the corporation plaintiffs) are both nonprofit organizations that, among other things, provide research on the right to vote and promote voter engagement in Wisconsin. Plaintiffs Renee Gagner, Anita Johnson, Cody Nelson, Jennifer Tasse, Scott Trindl, Michael Wilder, Johnny Randle, David Walker, David Aponte, and Cassandra Silas (the individual plaintiffs) reside in Wisconsin and are eligible to vote. Most of the defendants are members of the Government Accountability Board (GAB), a state governmental entity that oversees Wisconsin’s campaign finance, election, ethics, and lobbying laws. Defendant Mark Gottlieb is the secretary of the Wisconsin Department of Transportation, and defendant Patrick Fernan is the administrator of the Division of Motor Vehicles.

The Wisconsin Constitution provides that “[e]very 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.” Wis. Const. art. III, § 1. The Wisconsin legislature is responsible for enacting laws defining residency, providing for voter registration, and providing for absentee voting. Beginning in 2011, the legislature began changing Wisconsin’s election system. Plaintiffs challenge provisions from four separate pieces of legislation: 2011 Wis. Act 23, 2011 Wis. Act 75, 2011 Wis. Act 227, and 2013 Wis. Act 76. Plaintiffs allege that the new laws violate the Voting Rights Act and the United States Constitution. The court therefore has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1331.

The provisions that plaintiffs challenge fall into four categories: (1) registering to vote; (2) absentee voting; (3) voter ID; and (4) miscellaneous voting procedures. The court will summarize the provisions at issue in each of these categories.

A. Registering to vote

The first category of provisions at issue deals with registering to vote. Under former law, proof of residence was necessary only when registering within 20 days of an election. But the new laws require all voters to provide proof of residence when registering no matter when they register. Voters can no longer use “corroboration” (i.e., one voter vouches for another voter’s residence) as proof of residence. They must instead submit documents showing their names and current addresses. Examples of acceptable proof of residence documents include a Wisconsin driver license, a utility bill from no more than 90 days before the election, a bank statement, a paycheck or pay stub, a residential lease, and a college identification card with a tuition receipt from within the previous nine months. Voters can register: (1) by mail up to 20 days before an election; (2) with a special registration deputy; (3) in-person at the municipal clerk’s office until the Friday before an election or at other designated locations up to 20 days before an election; or (4) at the polling place on election day.

The new laws narrowed the use of special registration deputies by eliminating statewide deputies. Individuals must now apply to the municipal clerk or election board to serve as a special registration deputy for that municipality. There is no limit to the number of municipalities in which a person can be a special registration deputy.

The legislature also imposed two targeted changes to registration. The first change was to repeal a statute that required public high schools to serve as registration locations for their enrolled students and staff members. High school students and staff members must now use the same methods of registering to vote that all other citizens use. The second change was to prohibit municipalities from requiring landlords to provide any election information that federal law does not require them to provide. Defendants do not dispute that this statute preempted a Madison ordinance that required landlords to give voter registration forms to new tenants.

The final change to registration that plaintiffs are challenging involves the length of time that a voter must reside in his or her ward before voting in that ward. The new laws increased the durational residency requirement from 10 days to 28 days. Thus, voters who move from one ward to another within 28 days of an election must vote in their old wards, either in-person or absentee. Voters who move into Wisconsin from out-of-state within 28 days of an election cannot vote for any office other than President and Vice President, the two offices that federal law requires states to permit its citizens to vote for regardless of durational residency.

B. Absentee voting

The new laws also changed the availability of, and procedures for, absentee voting in Wisconsin. Before 2011, Wisconsin did not limit the days or times that municipalities could offer in-person absentee voting.[1] But now, in-person absentee voting occurs only during the two weeks immediately preceding an election. Specifically, in-person absentee voters must vote on weekdays, excluding legal holidays, between the hours of 8 a.m. and 7 p.m. And in-person absentee voting must occur at the municipal clerk’s office or at an alternate site that the municipality requests, but not both.[2]

The state legislature also changed the procedures for requesting and receiving absentee ballots. Although voters can apply for absentee ballots in person, by mail, by email, or by fax, municipal clerks now distribute ballots to most voters only by mail or in person (military or permanently overseas voters can receive ballots by fax or email).

Finally, Wisconsin now prohibits clerks from returning an absentee ballot to a voter unless the ballot is spoiled or damaged, or has an improperly completed certification. This measure prevents clerks from returning ballots to absentee voters to correct mistakes like overvoting or improper marks.

C. Voter ID

Part of Act 23 brought voter ID requirements to Wisconsin. With some exceptions for regular absentee voters, military or overseas voters, and voters with other privacy- or health-related issues, all voters must show proof of identification to vote. For voters who lack acceptable ID, the Wisconsin Department of Transportation provides free ID cards. These cards normally cost $18, but a person may receive one for free by meeting the other requirements for obtaining an ID, being at least 18 years old by the date of the next election, and requesting that the Department of Transportation waive the fee so that the person may use the ID card to vote.

There are nine qualifying forms of ID: (1) a Wisconsin driver license; (2) a Wisconsin ID card; (3) a U.S. military ID card; (4) a U.S. passport; (5) a certificate of U.S. nationalization, issued within two years of the election; (6) an unexpired Wisconsin driver license fee receipt; (7) an unexpired Wisconsin ID card receipt; (8) an ID card issued by a federally recognized Indian tribe; and (9) an unexpired college or university ID card. A voter who does not have a valid ID on election day may cast a provisional ballot and present acceptable ID at the polling place later that day or at the municipal clerk’s office until 4:00 p.m. on the Friday after the election.

This case is not the first time that someone has challenged Wisconsin’s voter ID law. In 2011, a group of plaintiffs (not the same plaintiffs who brought this case) challenged Wisconsin’s voter ID requirements in federal court. See Frank v. Walker, No. 11-cv-1128 (E.D. Wis. filed Dec. 13, 2011). On appeal, the Seventh Circuit held “that Act 23 does not violate either § 2 [of the Voting Rights Act] or the Constitution.” Frank v. Walker, 768 F.3d 744, 755 (7th Cir. 2014), cert. denied, 135 S.Ct. 1551 (2015). Acknowledging that this precedent foreclosed much of their challenge to the voter ID requirements, plaintiffs’ first amended complaint attacked those requirements only to preserve the issue for appeal. See Dkt. 19, ¶ 156 n.5. Until recently, their non-foreclosed challenge to the voter ID requirements was principally about the forms of ID that Wisconsin does not accept. For example, voters cannot use out-of-state driver licenses or other expired forms of ID, even though the purpose of requiring an ID is to prove identity, not residence.

But plaintiffs now want to expand the scope of their challenge because they allege that the Department of Transportation has abused its discretion in providing free IDs. Thus, plaintiffs have filed a second amended complaint alleging that Wisconsin’s voter ID law violates the Voting Rights Act and the Constitution. See Dkt. 141. These claims were not part of the case when defendants filed their motion for summary judgment, and so they are not yet at issue. The Department of Transportation’s allegedly improper methods for issuing free IDs will be an issue for trial, and this opinion will analyze only the voter ID claims that plaintiffs pursued in their first amended complaint.

D. Miscellaneous voting procedures

Plaintiffs also challenge two changes to voting procedures in Wisconsin. The first change deals with observers at polling places. Wisconsin permits members of the public to be present wherever voters are casting ballots. Observers must print their names in a log, and the chief election inspector or municipal clerk in charge of a particular site may designate an area in which all observers must remain. Before 2013, the GAB required observers to be between 6 and 12 feet from the tables at which voters announced their names and addresses or registered to vote. The legislature changed this “buffer zone” in Act 117, requiring election officials to designate an area that is between three and eight feet away from the tables. None of the named defendants are responsible for designating areas at specific polling places; that responsibility belongs to the chief election inspector or municipal clerk.

The second change that plaintiffs are challenging is the elimination of “straight-ticket” voting. Except for military and overseas voters, Wisconsin ballots no longer contain a straight-ticket option that lets a voter select all candidates of a particular political party.

ANALYSIS

Defendants have moved for summary judgment on all of plaintiffs’ claims (except for the voter ID claims that were not part of the first amended complaint). Under Federal Rule of Civil Procedure 56(a), the court must grant defendants’ motion if they show that there is no genuine dispute of material fact and that they are entitled to judgment as a matter of law. In reviewing defendants’ motion for summary judgment, the court construes all facts and draws all reasonable inferences in plaintiffs’ favor. Common Cause Ind. v. Individual Members of the Ind. Election Comm’n, 800 F.3d 913, 916 (7th Cir. 2015). But “the non-moving party does not bear the burden of proving his case; the opponent of summary judgment need only point to evidence that can be put in an admissible form at trial, and that, if believed by the fact-finder, could support judgment in his favor.” Marr v. Bank of Am., N.A., 662 F.3d 963, 966 (7th Cir. 2011) (original emphasis).

The state laws that plaintiffs are challenging fall into four categories: (1) registering to vote; (2) absentee voting; (3) voter ID; and (4) miscellaneous voting procedures. See generally Dkt. 141, ¶¶ 74-177. Plaintiffs challenge these laws under Section 2 of the Voting Rights Act, and under the First, Fourteenth, Fifteenth, and Twenty-Sixth Amendments to the United States Constitution. Id. ΒΆΒΆ 178-210. Defendants ...


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