voter id lawsuit (copy)

Gov. Scott Walker announced new rules aimed at helping those with trouble producing documentation obtain photo IDs for voting.

Wisconsin Department of Justice attorneys began their defense of a series of state voting laws — challenged in a two-week federal trial by multiple plaintiffs — with one word: "Astounding."

They were quoting University of Wisconsin-Madison political science professor Barry Burden, one of five expert witnesses to appear for the plaintiffs. Burden had used the word in April to describe the turnout in Wisconsin's presidential primary.

The turnout in that election — the state's highest in a presidential primary since 1972 — is a central part of the state's case. Lawyers for the state have frequently noted the increased turnout in elections that have occurred since the state's voter ID law was passed in 2011 and emphasized that the DMV provides free IDs to those who need them.

Plaintiffs — One Wisconsin Institute, Citizen Action of Wisconsin Education Fund and six individuals — are arguing that lawmakers intended to discriminate against non-white voters by passing not only the voter ID requirement, but several other changes to voting practices including restrictions on early voting and the elimination of straight-ticket voting.

Both sides have expert witnesses on their lists to help bolster their arguments — and attempt to discredit the expert witnesses whose reports conflict with their stance. 

Here are the witnesses who have provided, or are slated to provide, expert testimony in the case being heard by U.S. District Judge James Peterson:

Barry Burden

Title: Professor of Political Science, University of Wisconsin-Madison; Director, UW Elections Research Center

Witness for: Plaintiffs

Previous expert witness experience includes: 

Conclusions: 

  • "…the changes to Wisconsin election law between 2011 and 2014 that are challenged by plaintiffs in this litigation will predictably have a disproportionate impact on voting participation by blacks, Latinos, young people, lower income individuals, and Democrats in Wisconsin. The challenged laws disproportionately increase the costs of voting for these individuals."
  • "Based on theory about the “calculus of voting” and scholarly research on voter habit, I conclude that voting was more costly for members of these groups before the challenged changes in election law were implemented. These voters generally had less established voting habits and had fewer resources to help overcome the costs of voting. The challenged changes exacerbate these disparities."

M.V. Hood III

Title: Professor of Political Science, University of Georgia

Witness for: Defendants

Previous expert witness experience: 

  • NAACP v. Walker (challenged Wisconsin's voter ID law). In this case, Hood's testimony was found to be "clear and relevant," but "the reports and the testimony of Professor Mayer were substantially more credible and more helpful to the court than those of Professor Hood.

  • Frank v. Walker (challenged Wisconsin's voter ID law)

  • Veasey v. Perry (challenged Texas voter ID law)

  • The Ohio Democratic Party v. Husted (addressed the impact of changes to early in-person voting procedures in Ohio)

Conclusions: 

  • "…Wisconsin’s election code provides a reasonable and common sense approach to the manner in which elections are conducted in the state. Further, Wisconsin has acted to continue to make elections more manageable, fair, and efficient (i.e. standardization for inperson absentee voting days and hours). As well, the electoral climate in the state can be characterized as extremely positive as evidenced by the fact that in three of the last four federal election cycles Wisconsin recorded the second highest voter turnout rate in the country."
  • "The recent changes to in-person absentee voting in Wisconsin represent a means by which voter convenience can be balanced against the cost, both literal and administrative, for providing this service."

  • "…the rate at which absentee ballots have been rejected has fallen, not risen, over the last two federal election cycles. My examination of Wisconsin’s registration process involving the end of corroboration determined that this change instituted a fair and consistent standard for all electors in the state. Finally, increasing the residency requirement to 28 days places Wisconsin firmly in line with other states that have similar requirements."

  • "…there appears to be more than ample opportunity, time, and convenience for voters to accomplish this duty (of voting) in the State of Wisconsin."

  • "I can think of no reason that would lead me believe that the changes undertaken to Wisconsin’s election code under challenge in this case have, or will have, a detrimental impact on the ability of Wisconsin voters to cast a ballot, including minority voters."

Allan Lichtman

Title: Distinguished Professor of History, American University

Witness for: Plaintiffs

Previous expert witness experience includes: 

Conclusions:

  • "After Republicans achieved unified control of Wisconsin state government in 2011, the majority in the legislature enacted Act 23 and other measures relating to voting and registration with the intent and purpose of achieving partisan advantage through the limitation of African American and Hispanic voting and registration opportunities as compared to opportunities for whites in Wisconsin."
  • "The voter photo ID provision of Act 23 and numerous other measures in Act 23 and other legislation enacted through 2014 restricted access to voting and registration in Wisconsin, especially for minorities. Taken together these many laws, some with multiple provisions, comprised the largest set of restrictive electoral measures enacted anywhere in America in recent years."

  • "The plausible explanation for these many restrictive measures is the partisan gains that Republicans can achieve through provisions that disproportionately burden African American and Hispanic voters and potential voters."

Commentary from Judge Peterson: "I think that the work that historians do is of immense value but is so fundamentally different from the work that the courts do," Peterson said, noting that historians rely on hearsay evidence while the practice is "strongly disfavored" in court. Peterson said he found the testimony "very interesting" but will consider how much weight to give his conclusions.

Kenneth Mayer

Title: Professor of Political Science, University of Wisconsin-Madison

Witness for: Plaintiffs

Previous expert witness experience includes: 

  • Whitford et al. v. Nichol et al (redistricting litigation) 

  • Milwaukee NAACP et al. v. Scott Walker et. al (challenging Wisconsin's voter ID law). In this case, Mayer's testimony was found to be "clear, relevant, well-founded and helpful to the court."

  • Baldus et al. v. Brennan et al. (redistricting litigation) 

  • McComish et al. v Brewer et al (campaign finance case)

Conclusions:

  • "…the changes to voting and registration enacted since 2011 impose substantial burdens on voters when registering or casting a ballot, either in the form of additional documentation required, elimination of 'safety valve”' procedures for eligible voters who do not possess the qualifying documents, or narrowing or eliminating opportunities to register or cast ballots."

  • …"those burdens have the greatest effect on identifiable population subgroups, particularly racial minorities, young voters, students, and registrants without ID, depressing their turnout by making it significantly harder to register and vote."

  • "There is no doubt that the changes to voting enacted in Wisconsin since 2011 have significantly lowered the probability that a voter can cast a ballot in 2014, with the effects falling particularly hard on racial minorities, students, young voters, and those without ID."

Nolan McCarty

Title: Susan Dod Brown Professor of Politics and Public Affairs, Princeton University

Witness for: Defendants 

Previous expert witness experience includes:

Conclusions: 

  • "Clearly, I believe that there are many reasons to doubt (Kenneth Mayer's) conclusions. First, rather than observing a 'significantly lowered … probability that a voter [could] cast a ballot in 2014,' I documented that turnout increased markedly from 2010 to 2014 for racial minorities as well as for whites. In proportional terms (measured by the odds ratio), the turnout increases among the registered and citizen voting age population were at least as large for African-Americans as they were for whites."
  • "The findings suggesting the absence or smaller effects on racial minorities, students, young voters, and those without ID may largely be attributable to a variety of attrition biases, measurement error, and misinterpreted findings."

  • "…I find little evidence that the changes in Wisconsin electoral law had any significant partisan effect. The 2014 gubernatorial election was almost an exact replay of 2010 both in terms of vote shares and turnout at the municipal level. Nor did I find evidence that changes to absentee balloting reduced its usage by any racial or ethnic group."

Lorraine C. Minnite

Title: Associate Professor of Public Policy and Administration, Rutgers, The State University of New Jersey-Camden

Witness for: Plaintiffs

Previous expert witness experience includes: 

Conclusions: 

  • "…measures which risk reducing voter access to the ballot are not justified by claims that such requirements are needed to reduce or prevent voter impersonation forms of election fraud because as the empirical record makes clear, fraud committed by voters either in registering to vote or at the polls on Election Day is exceedingly rare."
  • "While proponents of electoral policies that reduce voter access to the ballot purportedly believe that such policies are justified as fraud prevention measures, in the absence of evidence of a problem with voter fraud, I conclude, given historical patterns and evidence and the context for party competition, that such policies actually serve as a form of voter suppression."

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Jessie Opoien is the Capital Times' opinion editor. She joined the Cap Times in 2013, covering state government and politics for the bulk of her time as a reporter. She has also covered music, culture and education in Madison and Oshkosh.