United States District Court, W.D. Wisconsin
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,
MARK L. THOMSEN, ANN S. JACOBS, BEVERLY R. GILL, JULIE M. GLANCEY, STEVE KING, DON M. MILLS, MICHAEL HAAS, MARK GOTTLIEB, and KRISTINA BOARDMAN, all in their official capacities, Defendants.
FINDINGS OF FACT & CONCLUSIONS OF LAW
D. PETERSON, District Judge
Smith has lived in Milwaukee since 2003. She was born at home, in
Missouri, in 1916. In her long life she has survived two
husbands, and she has left many of the typical traces of her
life in public records. But, like many older African
Americans born in the South, she does not have a birth
certificate or other documents that would definitively prove
her date and place of birth. After Wisconsin’s voter ID
law took effect, she needed a photo ID to vote. So she
entered the ID Petition Process (IDPP) at the Wisconsin
Department of Motor Vehicles (DMV) to get a Wisconsin
Id. DMV employees were able to find Mrs.
Smith’s record in the 1930 census, but despite their
sustained efforts, they could not link Mrs. Smith to a
Missouri birth record, so they did not issue her a Wisconsin
Id. She is unquestionably a qualified Wisconsin
elector, and yet she could not vote in 2016. Because she was
born in the South, barely 50 years after slavery, her story
is particularly compelling. But it is not unique: Mrs. Smith
is one of about 100 qualified electors who tried to but could
not obtain a Wisconsin ID for the April 2016 primary.
voter ID law is part of 2011 Wis. Act 23, enacted the year
after Wisconsin Republicans won the governorship and
majorities in both houses of the legislature. Act 23 was the
first of eight laws enacted over the next four years that
transformed Wisconsin’s election system. Plaintiffs in
this case challenge the voter ID law, the IDPP, and more than
a dozen other provisions in these new laws, none of which
make voting easier for anyone. Plaintiffs contend that the
new voting requirements and restrictions were driven by
partisan objectives rather than by any legitimate concern for
election integrity, that these laws unduly burden the right
to vote, and that they discriminate against minorities,
Democrats, and the young. Plaintiffs contend that the new
election laws violate the First, Fourteenth, Fifteenth, and
Twenty-Sixth Amendments to the Constitution, and § 2 of
the Voting Rights Act.
case was tried to the court in May. Over nine extended days,
the court heard the testimony of 45 live witnesses, including
six experts, with additional witnesses presented by
deposition. The parties submitted lengthy post-trial briefs,
and the court heard closing arguments on June 30. The opinion
that follows is the court’s verdict. It sets out in
detail the facts that the court finds and the legal
conclusions that the court draws from those facts. Because of
the large number of claims asserted in this case, and the
volume of evidence submitted, the opinion is necessarily
long, and few readers will endure to the end. But I will try,
in a few pages of introduction, to explain succinctly the
court’s essential holdings and the reasons for them.
with a word about my role. It is not the job of a federal
judge to decide whether a state’s laws are wise, and I
certainly do not have free-floating authority to rewrite
Wisconsin’s election laws. My task here is the more
limited one of pointing out where Wisconsin’s election
laws cross constitutional boundaries. The Constitution leaves
important decisions about election administration to the
states. But election laws inevitably bear on the fundamental
right to vote, so constitutional principles come into play.
The standards that I must apply to plaintiffs’ claims
require me to examine carefully the purposes behind these
laws, and sometimes to draw inferences about the motives of
the lawmakers who enacted them. I conclude that some of these
laws cannot stand.
voter ID law has been challenged as unconstitutional before,
in both federal and state court. In the federal case,
Frank v. Walker, the Seventh Circuit held that
Wisconsin’s voter ID law is similar, in all the ways
that matter, to Indiana’s voter ID law, which the
United States Supreme Court upheld in Crawford v. Marion
County Election Board. The important takeaways from
Frank and Crawford are: (1) voter ID laws
protect the integrity of elections and thereby engender
confidence in the electoral process; (2) the vast majority of
citizens have qualifying photo IDs, or could get one with
reasonable effort; and (3) even if some people would have
trouble getting an ID, and even if those people tend to be
minorities, voter ID laws are not facially unconstitutional.
I am bound to follow Frank and Crawford, so
plaintiffs’ effort to get me to toss out the whole
voter ID law fails.
were within my purview, I would reevaluate Frank and
Crawford, but not because I would necessarily reach
a different conclusion. A well-conceived and carefully
implemented voter ID law can protect the integrity of
elections without unduly impeding participation in elections.
But the rationale of these cases should be reexamined. The
evidence in this case casts doubt on the notion that voter ID
laws foster integrity and confidence. The Wisconsin
experience demonstrates that a preoccupation with mostly
phantom election fraud leads to real incidents of
disenfranchisement, which undermine rather than enhance
confidence in elections, particularly in minority
communities. To put it bluntly, Wisconsin’s strict
version of voter ID law is a cure worse than the disease. But
I must follow Frank and Crawford and reject
plaintiffs’ facial challenge to the law as a whole.
most pointed problem with Wisconsin’s voter ID law is
that it lacks a functioning safety net for qualified electors
who cannot get a voter ID with reasonable effort. The IDPP is
supposed to be this safety net, but as Mrs. Smith’s
story illustrates, the IDPP is pretty much a disaster. It
disenfranchised about 100 qualified electors-the vast
majority of whom were African American or Latino-who should
have been given IDs to vote in the April 2016 primary. But
the problem is deeper than that: even voters who succeed in
the IDPP manage to get an ID only after surmounting severe
burdens. If the petitioner lacks a birth certificate and does
not have one of the usual alternatives to a birth
certificate, on average, it takes five communications with
the DMV after the initial application to get an Id.
I conclude that the IDPP is unconstitutional and needs to be
reformed or replaced. Because time is short with the fall
elections approaching, I will issue an injunction targeted to
the constitutional deficiencies that I identify.
Lynn Adelman for the U.S. District Court for the Eastern
District of Wisconsin has also concluded that the IDPP is
likely unconstitutional, and he has issued a preliminary
injunction requiring Wisconsin to institute an affidavit
procedure. This procedure would allow an elector without an
ID to vote by signing an affidavit stating that he or she is
a qualified elector but could not get a photo Id.
Judge Adelman’s injunction provides one type of safety
net. But plaintiffs have not asked me to impose that
solution, and I will not. The state has already issued an
emergency rule under which those who are in the IDPP will get
receipts valid for voting. Although that is not a complete or
permanent solution, it blunts the harshest effects of the
IDPP. I will also order the state to publicize that anyone
who enters the IDPP will promptly get a receipt valid for
voting. To address this problem over the longer term, I will
order the state to reform the IDPP to meet certain standards,
leaving it to the state to determine how best to cure its
constitutional problems. I take this approach because it
respects the state’s decision to have a strict voter ID
law rather than an affidavit system. But Wisconsin may adopt
a strict voter ID system only if that system has a
well-functioning safety net, as both the Seventh Circuit and
the Wisconsin Supreme Court have held.
heart of the opinion considers whether each of the other
challenged provisions unduly burdens the right to vote, in
violation of the First and Fourteenth Amendments. This
analysis proceeds under what is known as the
Anderson-Burdick framework, which sets out a
three-step analysis. First, I determine the extent of the
burden imposed by the challenged provision. Second, I
evaluate the interest that the state offers to justify that
burden. Third, I judge whether the interest justifies the
burden. Certain of Wisconsin’s election laws fail
Anderson-Burdick review. For reasons explained in
the opinion, I conclude that the state may not enforce:
• most of the state-imposed limitations on the time and
location for in-person absentee voting (although the state
may set a uniform rule disallowing in-person absentee voting
on the Monday before elections);
• the requirement that “dorm lists” to be
used as proof of residence include citizenship information;
. the 28-day durational residency
• the prohibition on distributing absentee ballots by
fax or email; and
• the bar on using expired but otherwise qualifying
purported justifications for these laws do not justify the
burdens they impose.
also contend that the challenged laws intentionally
discriminate on the basis of race and age. This is a serious
charge against Wisconsin public officials. I reject most of
it, applying the framework set out by the Supreme Court in
Village of Arlington Heights v. Metropolitan Housing
Development Corporation. But applying that same
framework, I find that 2013 Wis. Act 146, restricting hours
for in-person absentee voting, intentionally discriminates on
the basis of race. I reach this conclusion because I am
persuaded that this law was specifically targeted to curtail
voting in Milwaukee without any other legitimate purpose. The
legislature’s immediate goal was to achieve a partisan
objective, but the means of achieving that objective was to
suppress the reliably Democratic vote of Milwaukee’s
African Americans. Thus, I conclude that the limits on
in-person absentee voting imposed by Act 146 fail under the
Fifteenth Amendment, as well as under the
Wisconsin has the authority to regulate its elections to
preserve their integrity, and a voter ID requirement can be
part of a well-conceived election system. But, as explained
in the pages that follow, parts of Wisconsin’s election
regime fail to comply with the constitutional requirement
that its elections remain fair and equally open to all
last point: I do not intend to disrupt the August 6, 2016
election. My decision and the injunction will have no effect
on that election.
Parties and procedural history
Facial challenges to Wisconsin’s voter ID law
Facial relief because of intentional discrimination
Facial relief because the IDPP has failed
Partisan fencing claim
First and Fourteenth Amendment claims for undue burdens on
the right to vote ....... 53
Limiting in-person absentee voting
Requiring documentary proof of residence and eliminating
Changing how students can use “dorm lists” to
register ............................................ 67
Eliminating statewide SRDs and eliminating SRDs and
registration locations at high schools
Preempting Madison’s landlord ordinance
Increasing the durational residency requirement
Establishing a zone for election observers
Eliminating straight-ticket voting
Prohibiting clerks from sending absentee ballots by fax or
email .............................. 84
Limiting when clerks can return absentee ballots to
Voting Rights Act claims
Caused by or linked to social and historical conditions
Fourteenth Amendment claims for disparate treatment of voters
extensive evidence has been presented in this case, material
factual disputes few and quite circumscribed. The parties
sharply dispute plaintiffs’ allegations that any of the
challenged laws were motivated by improper purposes,
particularly intentional race and age discrimination. The
parties also dispute the effect of the challenged laws on
voter turnout, and whether these effects are felt more
heavily by minorities and other groups of voters. But much is
parties have stipulated to a set of background facts, most of
which describe the challenged provisions and how they
operate. See Dkt. 184. The court adopts these facts
and recounts them below, along with other facts about
Wisconsin’s election system before the challenged
provisions went into effect. The court also adopts the facts
found by Judge Adelman concerning the history and operation
of the IDPP, which he based substantially on the evidence
presented in this case. Frank v. Walker, No.
11-cv-1128, 2016 WL 3948068 (E.D. Wis. July 19, 2016). The
court will incorporate the rest of its factual findings in
the analysis section of this opinion.
Wisconsin has had a well-respected election system, and the
state has consistently had turnout rates among the highest in
the country. Presidential elections were close in Wisconsin:
the 2000 and 2004 elections were decided by less than
one-half of one percentage point. In 2008, however, President
Obama won Wisconsin by almost 14 percentage points. Two years
later, Republicans took control of both houses of the state
legislature, and voters elected a Republican governor. Since
then, Wisconsin has implemented a series of election reforms.
These laws covered almost every aspect of voting:
registration, absentee voting, photo identification, and
The challenged provisions
25, 2011, Wisconsin enacted 2011 Wis. Act 23. That
legislation made the following changes to Wisconsin election
• It imposed a voter ID requirement.
• It reduced the window of time during which
municipalities could offer in-person absentee voting from a
period of as much as 30 days that ended on the day before
election day to a period of 12 days that ended on the Friday
before election day.
• It eliminated “corroboration” as a means
of proving residence for the purpose of registering to
• It mandated that any “dorm list” provided
to a municipal clerk to be used in connection with college
IDs to prove residence for the purpose of registering to vote
include a certification that the students on the dorm list
were United States citizens.
• It increased the in-state durational residency
requirement for voting for offices other than president and
vice president from 10 days to 28 days before an election and
required individuals who moved within Wisconsin later than 28
days before an election to vote in their previous wards or
• It eliminated straight-ticket voting on official
• It eliminated the authority of the Government
Accountability Board (GAB) to appoint special registration
deputies (SRDs) who could register voters on a statewide
November 16, 2011, Wisconsin enacted 2011 Wis. Act 75, which
prohibited municipal clerks from faxing or emailing absentee
ballots to absentee voters other than overseas and military
April 6, 2012, Wisconsin enacted 2011 Wis. Act 227, which
prohibited municipal clerks from returning an absentee ballot
to an elector unless the ballot was spoiled or damaged, had
an improperly completed certificate, or had no certificate.
April 6, 2012, Wisconsin enacted 2011 Wis. Act 240, which
eliminated the requirements that SRDs be appointed at public
high schools; that, in certain circumstances, SRDs be
appointed at or sent to private high schools and tribal
schools; and that voter-registration applications from
enrolled students and members of a high school’s staff
be accepted at that high school.
August 2012, the GAB directed election officials to accept
electronic versions of documents that could be used to prove
residence for the purpose of registering to vote.
March 20, 2013, Senate Bill 91 was introduced in the
Wisconsin State Senate. This bill would have permitted
municipalities to open multiple in-person absentee voting
locations (under existing law, municipalities were limited to
only one location). The bill failed to pass.
December 12, 2013, Wisconsin enacted 2013 Wis. Act 76. This
legislation had the effect of overturning a city ordinance in
Madison that required landlords to provide voter-registration
forms to new tenants.
March 27, 2014, Wisconsin enacted 2013 Wis. Act 146, which
reduced the window during which municipalities could offer
in-person absentee voting. This law eliminated the option of
offering in-person absentee voting on weekends and on
weekdays before 8 a.m. or after 7 p.m.
April 2, 2014, Wisconsin enacted 2013 Wis. Act 177, which
required that observation areas at polling places be placed
between three and eight feet from the location where voters
signed in and obtained their ballots and from the location
where voters registered to vote.
April 2, 2014, Wisconsin enacted 2013 Wis. Act 182, which
required all voters, other than statutory overseas and
military voters, to provide documentary proof of residence
when registering to vote. Before the passage of this
legislation, the requirement that a voter provide documentary
proof of residence when registering to vote applied only to
those who registered after the third Wednesday preceding
(i.e., 20 days before) an election.
Parties and procedural history
plaintiffs in this case include two organizations and several
individuals. One Wisconsin Institute, Inc. is a nonprofit
corporation with a mission “to advance progressive
values, ideas, and policies through strategic research and
sophisticated communications.” Dkt. 141, ¶ 4.
Citizen Action of Wisconsin Education Fund, Inc. is also a
nonprofit corporation focused on pursuing social and economic
justice. The individual plaintiffs are Renee Gagner, Anita
Johnson, Cody Nelson, Jennifer Tasse, Scott Trindl, Michael
Wilder, Johnny Randle, David Walker, David Aponte, and
Cassandra Silas. They all allege that the challenged
provisions injure their rights to vote, register to vote,
register others to vote, or vote for Democratic candidates.
initial defendants in this case were the members of the GAB
and two of its officers. Plaintiffs have added and removed
some defendants along the way, and the list now includes:
Mark Thomsen, Ann Jacobs, Beverly Gill, Julie Glancey, Steve
King, and Don Mills, the members of the Wisconsin Elections
Commission; Michael Haas, the administrator of the Wisconsin
Elections Commission; Mark Gottlieb, the secretary of the
Wisconsin Department of Transportation (DOT); and Kristina
Boardman, the administrator of the DMV. Plaintiffs have sued
all defendants in their official capacities.
filed this suit in May 2015, alleging that the challenged
provisions were unconstitutional, violated the Voting Rights
Act, and resulted from intentional discrimination by the
Wisconsin legislature. The court granted defendants’
motion to dismiss plaintiffs’ challenge to the voter ID
law, as well as some of their Equal Protection challenges to
other provisions. Dkt. 66. But the court later permitted
plaintiffs to partially reinstate their claims regarding the
voter ID law, based on evidence that defendants produced
during discovery. Dkt. 139. A few months later, the court
substantially denied defendants’ motion for summary
judgment, Dkt. 185, and the case proceeded to trial.
court will structure its analysis as follows:
standing. The court concludes that plaintiffs have standing
to challenge each of the provisions at issue, and that the
corporation plaintiffs can pursue claims under the Voting
plaintiffs’ facial challenges to Wisconsin’s
voter ID law. This law has already been upheld after
extensive litigation in the federal courts. The court
concludes that invalidating the entire voter ID law would not
be appropriate in this case.
plaintiffs’ claims of intentional discrimination.
Plaintiffs have proven by a preponderance of the evidence
that the legislature passed the provisions limiting the hours
for in-person absentee voting at least partially with the
intent to discriminate against voters on the basis of race.
But the court concludes that the remaining provisions do not
violate the Fifteenth Amendment. The court also concludes
that none of the challenged provisions violate the
plaintiffs’ “partisan fencing” claims.
Although plaintiffs allege a separate claim for partisan
fencing, the court concludes that their constitutional claim
provides an adequate framework for analyzing these
plaintiffs’ First and Fourteenth Amendment claims for
unduly burdening the right to vote. The court concludes that
some, but not all, of the challenged provisions are
unconstitutional because the state’s justifications for
them do not outweigh the burdens that they impose.
plaintiffs’ Voting Rights Act claims. The court
concludes that one of the challenged provisions violates the
Voting Rights Act.
plaintiffs’ Fourteenth Amendment Equal Protection
claim. The court concludes that defendants have failed to
articulate a rational basis for the state’s decision to
exclude expired student IDs as acceptable forms of voter ID.
court begins with standing. At summary judgment, the court
rejected defendants’ justiciability arguments,
including arguments related to standing. Defendants now renew
some of these arguments, contending that no plaintiff has
standing to challenge the voter ID law. Defendants also
contend that plaintiffs lack standing to challenge almost all
of the other provisions that are at issue. For
plaintiffs’ Voting Rights Act claims, defendants
contend that no plaintiff qualifies as an “aggrieved
person” able to pursue claims under the act.
‘irreducible constitutional minimum’ of standing
consists of three elements. The plaintiff must have (1)
suffered an injury in fact, (2) that is fairly traceable to
the challenged conduct of the defendant, and (3) that is
likely to be redressed by a favorable judicial
decision.” Spokeo, Inc. v. Robins, 136 S.Ct.
1540, 1547 (2016) (citation omitted), as revised,
(May 24, 2016). Defendants contend that plaintiffs have not
proven the first of these elements: a cognizable injury in
fact. As the parties invoking this court’s
jurisdiction, plaintiffs bear the burden of establishing that
they have standing. Id. But only one plaintiff needs
to have standing to challenge a given provision because the
complaint seeks only injunctive relief. Crawford v.
Marion Cty. Election Bd., 472 F.3d 949, 951 (7th Cir.
2007), aff’d, 553 U.S. 181 (2008).
10 individual plaintiffs in this case, 6 received qualifying
IDs from the DMV and 4 received receipts through the IDPP.
DX022; PX445. Defendants want to stop there, arguing that
none of the individual plaintiffs are harmed by the voter ID
law because they all currently have qualifying IDs. But there
are several problems with this argument. The most obvious
problem is that under the DMV’s current rules, the
receipts that four of the individual plaintiffs received will
expire after two automatic renewals, which means 180 days
after issuance. Although these plaintiffs will be able to
vote in the upcoming August and November elections, there is
essentially no plan in place for them after they use their
two renewals. Without a valid ID, these plaintiffs will not
be able to vote. Thus, they have “suffered ‘an
invasion of a legally protected interest’ that is
‘concrete and particularized’ and ‘actual
or imminent, not conjectural or hypothetical.’”
Spokeo, 136 S.Ct. at 1548.
setting aside the plaintiffs who will lack acceptable IDs and
be unable to vote after the November 2016 election, the voter
ID law also injures the remaining individual plaintiffs. At
summary judgment, the court concluded that having to
present an ID at the polls was a sufficient injury
for purposes of conferring Article III standing. Dkt. 185, at
10 (citing Frank v. Walker, 17 F.Supp.3d 837, 866
(E.D. Wis.), rev’d, 768 F.3d 744 (7th Cir.
2014), cert. denied, 135 S.Ct. 1551 (2015), and
Common Cause/Georgia v. Billups, 554 F.3d 1340,
1351-52 (11th Cir. 2009)). The court also concluded that the
plaintiffs who have IDs will have to renew them or acquire
other forms of identification once their current IDs expire,
which would be another injury that confers standing.
do not substantively engage these issues; they simply assert
that “[t]his Court was wrong when it held that voters
who have a qualifying ID have Article III standing to
challenge the voter photo ID law.” Dkt. 206, at 13. If
defendants want to preserve the issue for appeal, then they
have done so. But they have not identified reasons for the
court to depart from its earlier conclusion that plaintiffs
have standing to challenge the voter ID law.
the other provisions at issue, the corporation plaintiffs
have standing to challenge these laws. “An organization
may establish an injury to itself sufficient to support
standing to challenge a statute or policy by showing that the
statute or policy frustrates the organization’s goals
and necessitates the expenditure of resources in ways that
would not otherwise be required.” 15 James Wm. Moore et
al., Moore’s Federal Practice §
101.60[f] (3d ed. 2015) (citing Havens Realty Corp. v.
Coleman, 455 U.S. 363, 379 (1982)); see also
Crawford, 472 F.3d at 951 (“[T]he new law injures
the Democratic Party by compelling the party to devote
resources to getting to the polls those of its supporters who
would otherwise be discouraged by the new law from bothering
to vote.”). To establish standing, an organization must
point “to a ‘concrete and demonstrable injury to
its activities, ’ not ‘simply a setback to the
organization’s abstract social interests.’”
Spann v. Colonial Vill., Inc., 899 F.2d 24, 27 (D.C.
Cir. 1990) (alterations omitted) (quoting Havens Realty
Corp., 455 U.S. at 379).
trial, plaintiffs adduced evidence that One Wisconsin and
Citizen Action each devoted money, staff time, and other
resources away from their other priorities to educate voters
about the new laws. For example, Analiese Eicher, One
Wisconsin’s program and development director, testified
that she researched all but one of the challenged provisions.
Tr. 5p, at 145:12-17. The purpose of this research was to allow
One Wisconsin to educate its supporters, its partners, and
the press. Id. at 145:18-25. Eicher also testified
that had she not been researching the legislation, she would
have been working on other programs or initiatives for One
Wisconsin. Id. at 147:4-16. Eicher would have been
advocating for other voting-related changes, such as
automatic voter registration, online registration, and felony
reenfranchisement. Id. at 147:18-24. On an
organizational level, One Wisconsin developed a website to
help voters navigate the registration process in an effort to
remediate some of the confusion surrounding the challenged
provisions. Id. at 148:7-9, 149:3-8.
Anita Johnson, an individual plaintiff and one of Citizen
Action’s community organizers, testified that her job
responsibilities have “ballooned” over the last
few years as the laws have changed. Tr. 1p, at 4:16-5:1. Her
presentations to community groups now take longer, she has
been able to register fewer people, and she has stopped
working on other issues for Citizen Action to focus
exclusively on voting rights. Id. at 5:15-16,
7:20-8:5, 11:7-25, 32:24-33:11.
on this evidence, the court finds that the corporation
plaintiffs are not simply redirecting their resources to
litigation, which would not be an injury-in-fact that would
confer standing. See N.A.A.C.P. v. City of Kyle, 626
F.3d 233, 238 (5th Cir. 2010). Instead, both corporations are
devoting resources away from other tasks and toward
researching, or educating voters about, the challenged
provisions. These expenditures are injuries that give both
corporations standing to challenge the provisions at issue in
this case because the corporations are counteracting what
they perceive to be unlawful practices. Cf. Fla. State
Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153,
1166 (11th Cir. 2008).
final justiciability challenge relates to the Voting Rights
Act and whether any plaintiff qualifies as an
“aggrieved person” for purposes of bringing suit
pursuant to 52 U.S.C. § 10302. The court rejected this
challenge at summary judgment, adopting the Eastern District
of Wisconsin’s reasoning in Frank and
concluding that the corporation plaintiffs could assert
claims under the Voting Rights Act. Dkt. 185, at 14-15. Once
again, defendants do not substantively confront this
analysis. See Dkt. 206, at 15. In fact, the
authority on which defendants rely-Roberts v.
Wamser, 883 F.2d 617 (8th Cir. 1989)-does not actually
support their assertion that corporations cannot file suit
under the Voting Rights Act. Roberts involved an
unsuccessful political candidate whose alleged injury was the
loss of votes that he would have received but for the
challenged voting practice. 883 F.2d at 621. The Eighth
Circuit held “that an unsuccessful candidate attempting
to challenge election results does not have standing under
the Voting Rights Act.” Id. But the Eighth
Circuit also noted that the candidate was not suing on behalf
of others who were unable to protect their own rights,
id., which is what the corporation plaintiffs are
doing in this case. The court will adhere to its earlier
conclusion that One Wisconsin and Citizen Action can pursue
claims under the Voting Rights Act.
Facial challenges to Wisconsin’s voter ID law
voter ID law has been through the federal courts before. The
Seventh Circuit upheld the law in Frank v. Walker,
768 F.3d 744 (7th Cir. 2014), cert. denied, 135
S.Ct. 1551 (2015), relying on the Supreme Court’s
decision in Crawford v. Marion County Election
Board, 553 U.S. 181 (2008). Thus, this court will begin
its consideration of the merits by addressing
plaintiffs’ contention that despite the holdings in
Crawford and Frank, Wisconsin’s voter
ID law is facially unconstitutional and violates the Voting
considered a facial challenge to Indiana’s voter ID
law. 553 U.S. at 185. The critical holding in
Crawford is that requiring a voter to show a photo
ID before voting serves the important governmental interest
in ensuring the integrity of elections, particularly by
preventing in-person voting fraud, thereby engendering
confidence in elections. Id. at 200-03.
Crawford also held that securing an Indiana photo
ID, which required assembling certain vital documents and
going to the DMV to apply for the ID, imposed only modest
burdens that were not much greater than the effort ordinarily
required to register and vote. Id. at 198.
Crawford upheld Indiana’s voter ID law against
a facial challenge even though the burdens of the law fell
somewhat more heavily on minority voters, and even though
some individual voters might not be able to get a photo ID
without surmounting more severe burdens.
Frank, the Seventh Circuit considered a facial
challenge to Wisconsin’s voter ID law. 768 F.3d at 745.
The district court had determined that there were factual
distinctions between Wisconsin’s law and
Indiana’s law: most significantly, that there were many
more voters who did not have a qualifying photo ID in
Wisconsin, and that those voters tended to be minorities. The
Seventh Circuit expressed skepticism about the evidence of
how many voters lacked ID, but concluded that, in any case,
those distinctions were not material to the facial challenge.
The Seventh Circuit held that Wisconsin’s voter ID law
was not materially different from the Indiana law at issue in
Crawford, and that under Crawford,
Wisconsin’s voter ID law was facially constitutional.
hard to deny that a state and its citizens have a truly
compelling interest in maintaining election integrity. As the
evidence in this case proved once again, voter fraud is rare
but not non-existent. The court credits the evidence of
plaintiffs’ expert on the subject, Dr. Lorraine C.
Minnite, who testified and filed two expert reports. PX039;
PX044. But the more compelling evidence comes from Milwaukee
County, the one county in the state that has tried to
systematically discover and track violations of election law.
The county has an assistant district attorney devoted
full-time to the job, Bruce Landgraf. Based on
Landgraf’s testimony, and on other evidence discussed
below, the court finds that impersonation fraud- the type of
fraud that voter ID is designed to prevent-is extremely rare.
In most elections there are a very few incidents in which
impersonation fraud cannot be ruled out. But as
Crawford and Frank held, despite rarity
with which election fraud occurs, it is nevertheless
reasonable for states to take steps to prevent it.
system that requires voters to get a credential will
necessarily impose a burden on them. But if the burden is a
modest one, and if the credential meaningfully fosters
integrity, then the constitution is satisfied. Under
Crawford and Frank, collecting the
necessary records and making a trip to the DMV to get an ID
is a modest burden in light of the state interest that it
serves. Those cases probably reflected an unduly rosy view of
DMV field offices, but the evidence in this case confirms,
yet again, that the vast majority of Wisconsin citizens
already have the necessary Id. And most citizens who
do not have an ID can get one with relative ease.
court is, of course, bound to follow Crawford and
Frank, which defendants contend doom
plaintiffs’ facial challenge to Wisconsin’s voter
ID law. Defendants are correct. But Crawford and
Frank deserve reappraisal. The court is skeptical
that voter ID laws engender confidence in elections, which is
one of the important governmental purposes that courts have
used to sustain the constitutionality of those laws.
evidence in this case showed that portions of
Wisconsin’s population, especially those who live in
minority communities, perceive voter ID laws as a means of
suppressing voters. This means that they undermine rather
than enhance confidence in our electoral system. Good
national research suggests that voter ID laws suppress
turnout, and that they have a small, but demonstrable,
disparate effect on minority groups. See PX072. At
trial, testimony of African American community leaders
confirmed that voter ID laws engender acute resentment in
minority communities. See, e.g., Tr. 1p, at
131:21-24. And some of the Wisconsin legislators who
supported voter ID laws believed that they would have
partisan effects. Their willingness to publically tout the
partisan impact of those laws deepens the resentment and
undermines belief in electoral fairness.
the philosophical debate is a fundamentally factual question:
do voter ID laws protect the integrity of elections?
According to the Frank court, Crawford
definitively answered this question. 768 F.3d at 750
(“[W]hether a photo ID requirement promotes public
confidence in the electoral system is a ‘legislative
fact’-a proposition about the state of the world, as
opposed to a proposition about these litigants or about a
single state.”). The primary integrity-based
justification offered for voter ID laws is that they prevent
voter fraud. But that seems to be a dubious proposition. A
voter ID requirement addresses only certain types of election
malfeasance; specifically, impersonation fraud, by which one
person poses as another and votes under his or her name. This
happens from time to time by accident, when a voter signs the
poll book on the wrong line. That produces some frustration
for voters and poll workers, but it does not represent a
fundamental threat to the integrity of elections because it
does not happen that often and because everyone ultimately
gets to vote.
real fear is multiple voting: that a committed but unethical
partisan could cast many votes for his or her candidate under
different names. Yet there is utterly no evidence that this
is a systematic problem, or even a common occurrence in
Wisconsin or anywhere in the United States. PX039, at 2, 35.
True, it is not unheard of: in one well-known case, a
Milwaukee man was so committed to Governor Walker’s
re-election that he voted 14 times. Tr. 8a, at 184:3-24. He
was charged with and convicted of voter fraud (even without
the benefits of the voter ID law). Proponents of voter ID
would say that there could be other incidents of voter fraud
that have gone undetected. But there is no evidence to
support that hypothesis. As many have pointed out, multiple
voting is not a very effective way of influencing an
election, and few people would risk the penalties to do so.
The bottom line is that impersonation fraud is a truly
isolated phenomenon that has not posed a significant threat
to the integrity of Wisconsin’s elections.
same cannot be said for Wisconsin’s voter ID law, which
has so far been implemented in a rigorously strict form: the
only way to vote is to secure a state-approved Id.
As part of Act 23, Wisconsin enacted a statute allowing
citizens to receive free IDs to vote. But it was not until
the eve of trial in this case that the state started paying
for the underlying documents (e.g., birth certificates) that
citizens needed to submit to obtain these free IDs. Even now,
citizens who lack vital records can obtain free IDs only
after navigating the complicated IDPP. Wisconsin’s
strict implementation of its voter ID law has disenfranchised
more citizens than have ever been shown to have committed
theory, the well-designed and easy-to-use registration and
voting system imagined in Crawford and
Frank facilitates public confidence without eroding
participation in elections. But in practice,
Wisconsin’s system bears little resemblance to that
where does that leave plaintiffs’ facial challenge to
the voter ID law? Plaintiffs contend that two aspects of the
factual record of this case distinguish it from
Crawford and Frank, paving the way to a
fresh facial challenge.
Facial relief because of intentional discrimination
plaintiffs assert that Wisconsin’s voter ID law was
motivated, at least in part, by racial animus. This is a
serious allegation against the public officials of Wisconsin,
but the court cannot easily dismiss it here. There is
manifest racial disparity in the operation of the IDPP: of
the 61 actual denials that the DMV had issued as of April
2016, 85 percent were to African Americans or Latinos. PX475.
And government witnesses concede that 60 of these denials
were issued to qualified electors entitled to vote, but who
could not meet the IDPP’s criteria for a state-issued
Id. See Tr. 6, at 75:24-76:17 (DMV
administrator); Tr. 8p, at 191:2-5 (investigations unit
employee). The legislative history suggests that some of the
provisions challenged in this case were specifically intended
to curtail voting in Milwaukee, where 40 percent of the
population is African American and 17.3 percent is Latino
(approximately two-thirds of the state’s minority
population). Both sides agree that if the court finds that
the Wisconsin legislature enacted a voter ID law for the at
least partially with the intent to discriminate on the basis
of race, then the law is constitutionally unsound and cannot
stand. The court will address this issue below, in discussing
the intentional discrimination claims that plaintiffs have
alleged in this case.
Facial relief because the IDPP has failed
second factual distinction concerns the IDPP, which
plaintiffs contend imposes severe and discriminatory burdens
on some qualified Wisconsin electors. The IDPP was the
subject of a great deal of testimony at trial, and it has
become a dominant issue in this case. Plaintiffs contend that
the IDPP demonstrates Wisconsin’s intentional race
discrimination, is unconstitutional under the
Anderson-Burdick framework, and violates
the Voting Rights Act.And because this constitutionally required
safety net is not working, plaintiffs argue that the court
must strike down the entire voter ID law.
context for, and history of, Wisconsin’s effort to
implement the IDPP began with Act 23, passed in 2011. Besides
establishing voter ID, this legislation created Wis.Stat.
§ 343.50(5)(a)3., which provided that a voter could get
a Wisconsin ID from the DMV for free, if the voter requested
it for voting. But voters who did not have their birth
certificates had to get copies, which typically required
paying a fee to a government agency. Thus, getting a free ID
was not really free.
thought that the fees that voters had to pay for copies of
their vital records were tantamount to an unconstitutional
poll tax. Indeed, that was the conclusion that the Wisconsin
Supreme Court reached in Milwaukee Branch of NAACP v.
Walker, which relied on Crawford to uphold
Wisconsin’s voter ID law against a facial challenge.
2014 WI 98, ¶ 7, 357 Wis.2d 469, 851 N.W.2d 262,
reconsideration dismissed, 856 N.W.2d 177 (2014).
The state supreme court applied a savings construction to the
Wisconsin Administrative Code to provide that the required
vital documents were “unavailable” to a
prospective voter if he or she would have to pay a fee to get
them. Id. ¶¶ 66-71. Thus, a person who had
to pay to get a birth certificate could use the DMV’s
special petition process in Wis. Admin. Code DOT §
102.15 (i.e., the IDPP) to ask for a free ID on the grounds
that a birth certificate was unavailable. As the Seventh
Circuit recognized in Frank, the availability of a
truly free ID provided a necessary safety net that preserved
the constitutionality of Wisconsin’s voter ID law. 768
F.3d at 747. But since then, effectuating the savings
construction to provide free photo IDs to voters who lacked
the requisite vital records has proven to be difficult for
the DMV, to say the least.
purposes of this opinion, the court does not need to retrace
every detail of DOT’s response to NAACP v.
Walker; plaintiffs have set out the timeline in a chart
appended to their brief. Dkt. 207, at 253-57. In summary, the
DOT instituted an emergency rule on September 11, 2014 (the
day before the appellate argument in Frank). PX456.
The emergency rule changed the definition of
“unavailable, ” following the Wisconsin Supreme
Court’s direction, and it reorganized the IDPP into a
new subsection of Wisconsin’s Administrative Code, DOT
§ 102.15(5m). The emergency rule also created a
procedure that, in essence, required the DMV to track down
the birth record of any person who requested a free voter ID,
if the person did not have a copy of their birth record. The
procedure was complicated because the process required
interaction between various divisions of the DMV, the
Wisconsin Department of Health Services, and agencies of
other states. PX472. The main task of investigating and
evaluating petitions fell to the DMV’s Compliance and
Fraud Unit (CAFU), which, as its name implies, has staff
members whose normal duties are to investigate allegations of
people successfully navigated the IDPP. Out of 1, 389
petitions for free IDs, the DVM issued IDs to 1, 132
petitioners. Of the petitioners who applied, 487 had to go
through “adjudication, ” which included a full
investigation by CAFU and a final decision from Jim Miller, the
head of the DMV’s Bureau of Field Services (a different
unit from CAFU). 230 of the petitioners who went through
adjudication received IDs; 257 petitioners did not. DMV
records indicate that 98 of the petitioners who did not
receive IDs after adjudication cancelled their
petitioners in suspended or denied status were the ones who
faced serious roadblocks in the IDPP: their birth records did
not exist, or those records did not perfectly match their
names or other aspects of their identities, such as Social
Security records. The problems arose because the DMV
evaluated IDPP petitions for voting IDs by using the same
identification standards that it applied to applications for
Wisconsin driver licenses and standard IDs. To acquire any
one of these products from the DMV, a person must prove both
their identity and their legal presence in the United States.
Thus, the DMV refused to issue IDs to IDPP petitioners until
CAFU could confirm their identities with a match to a valid
birth record, or to some equivalently secure alternative.
Some petitioners simply could not meet the DMV’s
standard of proof, and so they could not obtain free IDs.
lack of a valid birth record correlated strikingly, yet
predictably, with minority status. The evidence at trial
demonstrated that Puerto Rico, Cook County, Illinois, and
states with a history of de jure segregation have
systematic deficiencies in their vital records systems.
Voters born in those places were commonly unable to confirm
their identities under the DMV’s standards. For
example, many African American residents in Wisconsin were
born in Cook County or in southern states. PX479. And many of
the state’s Latino residents were born in Puerto Rico.
Id. As of April 2016, more than half of the
petitioners who had entered the IDPP were born in Illinois,
Mississippi, or a southern state that had a history of de
jure segregation. PX478.
2015, the DMV begin issuing denials to IDPP petitioners. By
the time of trial in this case, the DMV had issued 61
denials, 53 of which were to minority
petitioners.Again, with one exception, the DMV had no
reason to doubt that those who were denied a photo ID were
Wisconsin residents, United States citizens, at least 18
years of age, and qualified to vote. Tr. 6, at 75:24-76:17.
The sole exception was a Latina woman who mistakenly believed
that she had been naturalized.
the state first implemented the IDPP, another related problem
has prevented petitioners from successfully navigating the
process. Until recently, the state had not appropriated any
funds to pay for petitioners’ vital records. Although
no petitioner was asked to pay for any vital record, the
state did not acquire any vital record for which a fee was
required. The result was that some petitioners fell into
limbo: the DMV did not deny their petitions, but the
petitioners could not confirm their identities. These
petitioners ended up in “suspend” status, with
the DMV essentially waiting either for the petitioner to turn
up new records, or for enough time to pass that the DMV could
officially deny the petition.
March 7, 2016, DMV officials and state legal counsel met to
discuss the state’s failure to pay for vital records.
At some point after the meeting, the DMV received funds, and
during the second week of trial in this case, the DMV made
its first payment to acquire a vital record for a petitioner.
Tr. 7p, at 111:2-17.
10, 2016, a week before the trial in this case began, the
governor approved another emergency rule modifying the IDPP.
PX452. The new rule acknowledged that emergency rulemaking
was required to ensure that qualified electors could get a
photo ID with reasonable effort in time for the next
This emergency rulemaking [was] also necessary to preserve
the integrity of the verification process utilized by the
Department in issuing an identification card while still
preserving the public welfare by ensuring that qualified
applicants who may not be able to obtain acceptable
photographic identification for voting purposes with
reasonable effort will be able to obtain photographic
identification before the next scheduled elections.
PX453, at 14. The rule ameliorated some of the deficiencies
of the IDPP: it established procedures and standards for
evaluating petitions; it provided a means to surmount common
impediments such as minor mismatches between a birth record
and other aspects of a petitioner’s identity; and it
established “more likely than not” as the
standard for evaluating evidence of identity, birthdate, and
Perhaps most important, the emergency rule required the DMV
to issue petitioners temporary identification card receipts
that were valid for voting purposes while their petitions
contend that the latest emergency rule fixes the problems
with the IDPP, and that because all petitioners still in the
process have a receipt valid for voting, the dispute over the
IDPP is moot. The court disagrees for two reasons.
the receipts issued under the emergency rule are not
permanent. Those who hold them will be able to vote only so
long as the receipts are renewed. But qualified electors are
entitled to vote as a matter of constitutional right, not
merely by the grace of the executive branch of the state
government. The state has promised to renew the receipts for
180 days so that they will be good through the November 2016
election. But the state has been utterly silent on what
happens after that. As things stand now, after these receipts
expire, petitioners will once again find themselves in IDPP
limbo. Thus, at best, the emergency rule gives the state time
to devise a new solution (but the court has not seen any
evidence to suggest that the state is actually working on a
even under the emergency rule, petitioners will have to
convince the DMV to exercise its discretion to issue them
IDs. Although the emergency rule guides that discretion and
specifies that the applicable standard of proof is
“more likely than not, ” the process is still far
more arduous than collecting documents and making a trip to
the DMV, as envisioned in Crawford and
Frank. Being investigated by CAFU, even under the
newest iteration of Wisconsin’s emergency rule, still
makes it unnecessarily difficult to obtain an ID.
court finds that IDPP petitions were decided by a standard
that was at least as rigorous as “clear and convincing
proof.” For now, suffice it to say that the court
agrees that the IDPP is a wretched failure: it has
disenfranchised a number of citizens who are unquestionably
qualified to vote, and these disenfranchised citizens are
overwhelmingly African American and Latino. The IDPP violates
the constitutional rights of those who must use it, and so
Wisconsin must therefore replace or substantially reform the
process. But that does not mean that the voter ID law is
unconstitutional in all of its applications. Because a
targeted remedy can cure the constitutional flaws of the IDPP
(and thus, the entire voter ID law), facial relief is not
necessary or appropriate.
and Frank effectively foreclose invalidating
Wisconsin’s voter ID law outright. Based on the
evidence presented at trial, the court has some misgivings
about whether the law actually promotes confidence and
integrity. But precedent is precedent, and so the court will
deny plaintiffs’ request to invalidate the entire voter
assert claims under the Fifteenth and Twenty-Sixth
Amendments, alleging intentional discrimination on the basis
of race and on the basis of age. The legal standards for
evaluating these claims are substantially identical, and most
of the pertinent evidence for each claim is the same. With
the exception of Wisconsin’s restriction on the number
of hours that municipal clerks can offer in-person absentee
voting, the court concludes that plaintiffs have failed to
prove their claims of intentional discrimination.
contend that the Wisconsin legislature passed many of the
challenged provisions in violation of the Fifteenth
Amendment. To succeed on these claims, plaintiffs must
demonstrate that the legislature intentionally discriminated
against voters because of their race. Rogers v.
Lodge, 458 U.S. 613, 617 (1982); Village of
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.
252, 265 (1977). Discriminatory animus does not need to be
the only reason for Wisconsin’s new laws, or even the
primary reason, but “official action will not be held
unconstitutional solely because it results in a racially
disproportionate impact.” Arlington Heights,
429 U.S. at 264-65. Nor do plaintiffs have to prove
discriminatory intent with direct evidence of racial animus.
Rogers, 458 U.S. at 618.
a law is motivated by racial discrimination is a difficult
factual determination, guided by sparse precedent.
Arlington Heights provides the essential template:
“Determining whether invidious discriminatory purpose
was a motivating factor demands a sensitive inquiry into such
circumstantial and direct evidence of intent as may be
available.” 429 U.S. at 266. The starting point of the
analysis is whether the law has had a disparate impact. But
unless there is a startling pattern, inexplicable on grounds
other than race, impact alone is not determinative. In that
case, other evidence must support a finding of
discrimination. This evidence can include the historical
background and context of the law and the legislative
history, especially any contemporaneous statements by the
decision-making body. See Id. at 266-68.
turning to the Arlington Heights analysis, the court
considers defendants’ evidentiary objection to one of
plaintiffs’ experts, historian Allan Lichtman, PhD. At
trial, Dr. Lichtman testified that several of the challenged
provisions were motivated by intentional race discrimination.
See Tr. 6, at 237:5-18. Defendants contend that Dr.
Lichtman’s testimony invaded the province of the court
by offering an opinion on an ultimate issue in the case, and
that it was therefore not a proper topic for expert analysis.
The court agrees. Dr. Lichtman provided some useful factual
background to the legislation at issue- background that
defendants did not dispute-but the court will not otherwise
adopt his analysis or opinions about the specific issue of
the legislature’s intent in passing the challenged
these considerations in mind, the court turns to the merits
of plaintiffs’ intentional race discrimination claim.
The court will analyze this claim first in the context of
Wisconsin’s voter ID law, then in the context of the