The Wisconsin Supreme Court has upheld a 2011 law backed by Republicans requiring voters to show photo identification at the polls, and Attorney General J.B. Van Hollen pledged to use the ruling to convince a federal appeals panel to put the law into effect for the November election.

The majority on the divided state court worked to make the law constitutional by changing a provision of state policy to make it easier for people to obtain photo IDs without having to pay for them.

The rulings in two separate voter ID cases were released Thursday.

A federal judge in Milwaukee had already declared the law unconstitutional, which means the state rulings have no immediate effect. The federal court decision is under appeal in the U.S. 7th Circuit Court of Appeals in Chicago.

For the law to take effect, both the state Supreme Court and the federal courts would have to find it constitutional.

A spokeswoman for Van Hollen said the rulings would help his case before the federal panel.

“The Attorney General will use all available means to get voter ID on the books for the November election, and the recent decisions clearly help in that regard,” spokeswoman Dana Brueck said.

Gov. Scott Walker praised Thursday’s rulings and said he was confident voter ID would ultimately be upheld in federal court.

“Voter ID is a common-sense reform that protects the integrity of our elections,” Walker said. “People need to have confidence in our electoral process and to know their vote has been properly counted. We look forward to the same result from the federal court of appeals.”

Law’s history

The voter ID requirement was only in place for one low-turnout primary in spring 2012 before it was blocked by a state judge. As a result, Wisconsin voters were not required to show photo identification at the polls in the November 2012 presidential election.

The pair of cases before the Supreme Court were brought separately by Wisconsin’s League of Women Voters and the Milwaukee branch of the National Association for the Advancement of Colored People (NAACP).

The NAACP had argued in their case that the law was unconstitutional because it would severely burden a significant number of qualified voters and was not necessary to prevent fraud. In its case, the League of Women Voters said requiring voter ID was an additional “elector qualification” beyond what was required by the state constitution.

But Justice Patience Roggensack, who authored the opinions for the majority in both cases, disagreed.

She wrote for the majority that the NAACP failed to prove voter ID was “unconstitutional beyond a reasonable doubt.”

“We conclude that the burdens of time and inconvenience associated with obtaining Act 23-acceptable photo identification are not severe burdens on the right to vote and do not invalidate the law,” Roggensack wrote in that case.

In the NAACP case, the law was upheld on a narrow 4-3 vote, with Chief Justice Shirley Abrahamson, Justice Ann Walsh Bradley and Justice N. Patrick Crooks dissenting.

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In the case brought by the League of Women Voters, the law was upheld on a 5-2 vote with only Abrahamson and Bradley dissenting.

Roggensack wrote the majority concluded “the Legislature did not exceed its authority” by requiring photo ID at the polls in the league’s case.

Crooks said he sided with the majority in the League’s case because he said the group failed to prove the law is unconstitutional. However, in the NAACP case, Crooks wrote that the law’s “photo identification requirements severely burden eligible voters without being narrowly tailored to achieve the state’s compelling interests of reducing voter fraud.”


Abrahamson wrote sharply worded dissents in both cases.

“Today the court follows not James Madison — for whom Wisconsin’s capital city is named — but rather Jim Crow — the name typically used to refer to repressive laws used to restrict rights, including the right to vote, of African-Americans,” she wrote in the League case.

A spokesman for Walker’s likely Democratic challenger, Mary Burke, criticized the law.

“Mary opposes unnecessary photo ID restrictions that make it harder for seniors, students and veterans to vote, and the restrictions on early voting signed into law by Walker,” spokesman Joe Zepecki said.

The majority also addressed concerns about voters being required to pay for documents in order to obtain photo ID in the NAACP case.

People can already get free photo ID cards for voting from the state, but they need to provide certified copies of their birth certificates, which cost $20 apiece.

The majority found that a problem.

Roggensack wrote that “in order to resolve a conflict” between the law and the state’s administrative code, the court said the Department of Motor Vehicles would have to follow the law “in a constitutionally sufficient manner.”

“The modest fees for documents necessary to prove identity would be a severe burden on the constitutional right to vote not because they would be difficult for some to pay,” Roggensack wrote. “Rather, they would be a severe burden because the State of Wisconsin may not enact a law that requires any elector, rich or poor, to pay a fee of any amount to a government agency as a precondition to the elector’s exercising his or her constitutional right to vote.”

She added that the majority left DMV administrators discretion on when they could issue photo ID cards without other documents, like birth certificates.

“This is the very definition of judicial activism,” said Susan Crawford, a Madison attorney. “The majority was bending over backwards to try to save this statute because they recognized it has a very serious constitutional flaw.”

She said the majority essentially said the law was unconstitutional unless they used a “saving construction” to change state statute, and in doing so legislated from the bench.

— State Journal reporter Matthew DeFour contributed to this report.

Capital W: Plug in to Wisconsin politics

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