League of Women Voters of Wisconsin Education Network, Inc. v. Scott Walker , 357 Wis. 2d 360 ( 2014 )

2014 WI 97
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP584
COMPLETE TITLE: League of Women Voters of Wisconsin Education
Network,
Inc. and Melanie G. Ramey,
Plaintiffs-Respondents-Petitioners,
v.
Scott Walker, Thomas Barland, Gerald C. Nichol,
Michael
Brennan, Thomas Cane, David G. Deininger and
Timothy Vocke,
Defendants-Appellants,
Dorothy Janis, James Janis, Matthew Augustine,
Intervenors-Co-Appellants.
REVIEW OF A DECISION OF THE COURT OF APPEALS
348 Wis. 2d 714, 834 N.W.2d 393
(Ct. App. 2013 – Published)
PDC No: 2013 WI App 77
OPINION FILED: July 31, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 24, 2014
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Richard G. Niess
JUSTICES:
CONCURRED: CROOKS, J., concurs (Opinion filed.)
DISSENTED: ABRAHAMSON, C.J., BRADLEY, J., dissents.
(Opinion filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiffs-respondents-petitioners, there were
briefs by Lester A. Pines, Tamara B. Packard, Susan Crawford,
and Cullen Weston Pines & Bach LLP, Madison, and oral argument
by Lester A. Pines.
For the defendants-appellants, the cause was argued by
Clayton P. Kawski, assistant attorney general, with whom on the
brief was J.B. Van Hollen, attorney general, and Maria S. Lazar,
assistant attorney general.
For the intervenors-co-appellants, there was a brief by
James R. Troupis, Sarah E. Troupis, and Troupis Law Office LLC,
Cross Plains; Michael T. Morley, Cranford, N.J.; and Dan Backer
and Coolidge-Reagan Foundation, Washington, D.C, and oral
argument by Michael T. Morley.
2
2014 WI 97
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP584
(L.C. No. 2011CV4669)
STATE OF WISCONSIN : IN SUPREME COURT
League of Women Voters of Wisconsin Education
Network, Inc. and Melanie G. Ramey,
Plaintiffs-Respondents-Petitioners,
v. FILED
Scott Walker, Thomas Barland, Gerald C. Nichol, JUL 31, 2014
Michael Brennan, Thomas Cane, David G.
Deininger and Timothy Vocke, Diane M. Fremgen
Clerk of Supreme Court
Defendants-Appellants,
Dorothy Janis, James Janis, Matthew Augustine,
Intervenors-Co-Appellants.
REVIEW of a decision of the Court of Appeals. Modified and
as modified, affirmed; injunction vacated; cause remanded to
circuit court to dismiss the complaint.
¶1 PATIENCE DRAKE ROGGENSACK, J. We review a decision
of the court of appeals1 reversing an order of the circuit court2
1
League of Women Voters of Wis. Educ. Network, Inc. v.
Walker, 2013 WI App 77, 348 Wis. 2d 714, 834 N.W.2d 393.
2
The Honorable Richard G. Niess of Dane County presided.
No. 2012AP584
that declared portions of Wisconsin's voter identification law,
2011 Wis. Act 23, unconstitutional and permanently enjoined its
enforcement.
¶2 Plaintiffs, the League of Women Voters of Wisconsin
Education Network, Inc., and its president, Melanie G. Ramey,3
bring a facial challenge to the law under the Wisconsin
Constitution.4 The League asserts that the legislature lacked
authority to require an elector to present Act 23-acceptable
photo identification. It makes the following three arguments:
(1) the requirement is an additional elector qualification not
listed in Article III, Section 1; (2) the requirement is not one
of the five types of election-related laws in Article III,
Section 2; and (3) the requirement is not reasonable.
¶3 Defendants5 counter that Act 23 does not create an
additional elector qualification, but rather, requiring voters
to present Act 23-acceptable photo identification is a means to
identify qualified voters. They also say that Act 23 comes
within the parameters of Article III, Section 2 of the Wisconsin
3
We refer to plaintiffs collectively hereinafter as "the
League."
4
Plaintiffs' challenge is based entirely on the requirement
to present Act 23-acceptable photo identification to vote. It
does not include any allegation that obtaining such photo
identification places an unconstitutional burden on the right to
vote.
5
The defendants are Governor Walker and six members of the
Government Accountability Board, all of whom are sued in their
official capacities, and three individual voters who joined the
suit at the court of appeals.
2
No. 2012AP584
Constitution as a law providing for registration of voters.
Defendants further contend that Act 23 is a reasonable
regulation that serves the State's significant interests in
promoting voter confidence in the integrity of elections, in
deterring voter fraud and in orderly election administration.
¶4 We conclude that the legislature did not exceed its
authority under Article III of the Wisconsin Constitution when
it required electors to present Act 23-acceptable photo
identification. Since 1859, we have held that "it is clearly
within [the legislature's] province to require any person
offering to vote[] to furnish such proof as it deems requisite[]
that he is a qualif[i]ed elector." Cothren v. Lean, 9 Wis. 254
(*279), 258 (*283-84) (1859). Requiring a potential voter to
identify himself or herself as a qualified elector through the
use of Act 23-acceptable photo identification does not impose an
elector qualification in addition to those set out in Article
III, Section 1 of the Wisconsin Constitution.
¶5 We also conclude that the requirement to present Act
23-acceptable photo identification comes within the
legislature's authority to enact laws providing for the
registration of electors under Article III, Section 2 because
Act 23-acceptable photo identification is the mode by which
election officials verify that a potential voter is the elector
listed on the registration list.
¶6 Finally, we conclude that plaintiff's facial challenge
fails because Act 23's requirement to present photo
identification is a reasonable regulation that could improve and
3
No. 2012AP584
modernize election procedures, safeguard voter confidence in the
outcome of elections and deter voter fraud. See Crawford v.
Marion Cnty. Election Bd., 553 U.S. 181, 191 (2008).
Accordingly, we affirm the decision of the court of appeals.6
I. BACKGROUND
¶7 We begin with a description of the portions of Act 23
that bear on our analysis. Act 23 requires an elector to
present one of nine acceptable forms of photo identification in
order to vote. Wis. Stat. § 5.02(6m) (2011-12).7 Generally
stated, these include: Wisconsin Department of Transportation
(DOT) issued driver's license; DOT issued photo identification
card; United States uniformed service identification card;
United States passport; United States naturalization certificate
issued within two years preceding the election; federally
recognized Wisconsin Native American tribe's identification
card; Wisconsin university or college student identification
card; and a citation or notice of driver's license suspension.
¶8 Act 23's presentation requirement applies to in-person
as well as absentee voting, with some exceptions for, among
others, electors who automatically receive absentee ballots
6
The court of appeals remanded the case to the circuit
court "for further proceedings consistent with this opinion as
may be necessary." Because we conclude that plaintiffs' facial
challenge to Act 23 fails as a matter of law, we modify the
remand of the court of appeals, vacate the circuit court
injunction and remand the matter to the circuit court to dismiss
the lawsuit.
7
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
4
No. 2012AP584
under Wis. Stat. § 6.86(2)(a), residents of qualified facilities
described in Wis. Stat. § 6.875(1) and military and overseas
electors under Wis. Stat. § 6.865(1). § 6.87(4)(b)2., 3., and
5.
¶9 If an elector does not present Act 23-acceptable
identification on the day of the election in which he or she
offers to vote, the elector may cast a provisional ballot.
However, the provisional ballot will be counted only if the
elector presents Act 23-acceptable identification at the polling
location before 4:00 p.m. on the day of the election or at the
office of the municipal clerk or board of election commissioners
by the following Friday. Wis. Stat. § 6.97(3).
¶10 Four months after Governor Walker signed Act 23 into
law, the League filed this lawsuit seeking a declaration that
the photo identification requirement violated Article III of the
Wisconsin Constitution and asking for injunctive relief. After
denying defendants' motion to dismiss for lack of standing, the
circuit court granted the League's motion for summary judgment.
The circuit court concluded that the challenged portions of Act
23 were "unconstitutional to the extent they serve[d] as a
condition for voting at the polls" and permanently enjoined
defendants "from any further implementation or enforcement of
those provisions."
¶11 The court of appeals reversed the circuit court,
concluding that: (1) the League had "not shown that the photo
identification requirement is on its face an 'additional
qualification' for voting"; (2) Act 23 was validly enacted
5
No. 2012AP584
pursuant to the legislature's "implicit but broad constitutional
authority to establish a voting registration system under which
election officials may require potential voters to identify
themselves as registered voters"; and (3) that there were no
factual findings in the record to support the League's implied
argument that the photo identification requirement was so
burdensome that it effectively denied people the right to vote.8
The League petitioned for review, which we granted.
II. DISCUSSION
¶12 The League brings a facial constitutional challenge
against Act 23, asserting that the requirement to present an Act
23-acceptable photo identification creates an elector
qualification in addition to those set out in Article III,
Section 1 of the Wisconsin Constitution, which the legislature
has no power to do; that Act 23 exceeds the scope of legislative
authority authorized by Article III, Section 2 of the Wisconsin
Constitution; and Act 23 is not a reasonable regulation of the
elective franchise.
A. Standard of Review
¶13 There are two general types of constitutional
challenges: facial and as-applied. As we explained in State v.
Wood, 2010 WI 17, 323 Wis. 2d 321, 780 N.W.2d 63:
A party may challenge a law . . . as being
unconstitutional on its face. Under such a challenge,
8
The League no longer asserts that Act 23 is so burdensome
that it effectively denies the right to vote, noting that this
issue is now before us in Milwaukee Branch of NAACP v. Walker,
2014 WI 98, __ Wis. 2d __, __ N.W.2d __.
6
No. 2012AP584
the challenger must show that the law cannot be
enforced "under any circumstances." . . . In contrast,
in an as-applied challenge, we assess the merits of
the challenge by considering the facts of the
particular case in front of us, "not hypothetical
facts in other situations." Under such a challenge,
the challenger must show that his or her
constitutional rights were actually violated.
Id., ¶13 (internal citations omitted).
¶14 The League presents only a facial challenge to Act 23,
asserting that the photo identification requirement is void from
its inception. The constitutionality of a statute is a question
of law that we independently review, while benefitting from the
analyses of the circuit court and court of appeals. State v.
Smith, 2010 WI 16, ¶8, 323 Wis. 2d 377, 780 N.W.2d 90.
B. Constitutional Challenge
1. Foundational principles
¶15 Because the League brings a facial challenge to Act
23, it "must show that the law cannot be enforced 'under any
circumstances.'" Wood, 323 Wis. 2d 321, ¶13 (citing Olson v.
Town of Cottage Grove, 2008 WI 51, ¶44 n.9, 309 Wis. 2d 365, 749
N.W.2d 211); see also United States v. Salerno, 481 U.S. 739,
745 (1987) (explaining that a facial challenge to a legislative
act is the most difficult of constitutional challenges because
the challenger must prove that "no set of circumstances exists
under which the Act would be valid").
¶16 We generally presume that statutes are constitutional.
Tammy W-G. v. Jacob T., 2011 WI 30, ¶46, 333 Wis. 2d 273, 797
N.W.2d 854. However, the way in which we address this
presumption may vary depending on the nature of the
7
No. 2012AP584
constitutional claim at issue. See e.g., Milwaukee Branch of
NAACP v. Walker, 2014 WI 98, ¶¶27-41, __ Wis.2d __, __ N.W.2d
__, also released today. The presumption of constitutionality
is based on respect for a co-equal branch of government, and it
promotes due deference to legislative acts. Dane Cnty. Dep't of
Human Servs. v. Ponn P., 2005 WI 32, ¶16, 279 Wis. 2d 169, 694
N.W.2d 344. This presumption applies even when a statute
implicates a fundamental right, subject to limited exceptions
that do not apply here. State v. Cole, 2003 WI 112, ¶¶14, 20,
264 Wis. 2d 520, 665 N.W.2d 328 (presuming that a concealed
weapons law implicating the fundamental right to bear arms was
constitutional). "[I]f any doubt exists about a statute's
constitutionality, we must resolve that doubt in favor of
constitutionality." Aicher v. Wis. Patients Comp. Fund, 2000 WI
98, ¶18, 237 Wis. 2d 99, 613 N.W.2d 849.
¶17 The challenger has a very heavy burden in overcoming
the presumption of constitutionality. Dowhower v. W. Bend Mut.
Ins. Co., 2000 WI 73, ¶10, 236 Wis. 2d 113, 613 N.W.2d 557. To
succeed, plaintiffs must prove that the statute is
unconstitutional beyond a reasonable doubt. Cole, 264 Wis. 2d
520, ¶11. While this burden of proof is often associated with
the requisite proof of guilt in a criminal case, in the context
of a challenge to the constitutionality of a statute, the phrase
"beyond a reasonable doubt" expresses the "force or conviction
with which a court must conclude, as a matter of law, that a
statute is unconstitutional before the statute or its
application can be set aside." Ponn P., 279 Wis. 2d 169, ¶18.
8
No. 2012AP584
2. Suffrage
¶18 The qualifications of an elector entitled to vote are
set out in Article III, Section 1 of the Wisconsin Constitution.
Article III, Section 2 of the Wisconsin Constitution addresses
implementation of voting rights through legislation. Those two
sections are the focus of our review and they provide in their
entirety:
Electors. Section 1. Every 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.
Implementation. Section 2. Laws may be enacted:
(1) Defining residency.
(2) Providing for registration of electors.
(3) Providing for absentee voting.
(4) Excluding from the right of suffrage persons:
(a) Convicted of a felony, unless restored to
civil rights.
(b) Adjudged by a court to be incompetent or
partially incompetent, unless the judgment specifies
that the person is capable of understanding the
objective of the elective process or the judgment is
set aside.
(5) Subject to ratification by the people at a
general election, extending the right of suffrage to
additional classes.
3. Prior Article III challenges
¶19 The League's Article III challenge stands with many
significant cases that have brought constitutional challenges to
legislation that bears on voting. Accordingly, we now review
9
No. 2012AP584
some of those challenges. For example, in McGrael v. Phelps,
144 Wis. 1, 128 N.W. 1041 (1910), we concluded that voting was a
right, not a privilege, which was guaranteed by Article III,
Section 1 of the Wisconsin Constitution. Id. at 14-15.
However, we also concluded that "there is a legitimate field of
legislative activity in the nature of regulation." Id. at 2.
In that regard, we explained:
It has become elementary that constitutional
inhibitions of legislative interference with a right,
including the right to vote and rights incidental
thereto, leaves, yet, a field of legislative activity
in respect thereto circumscribed by the police power.
That activity appertains to conservation, prevention
of abuse, and promotion of efficiency. Therefore, as
in all other fields of police [power] regulation, it
does not extend beyond what is reasonable. . . .
However, what is and what is not reasonable, is
primarily for legislative judgment, subject to
judicial review.
Id. at 17-18. We noted that judicial review of the
legislature's exercise of its police power addresses "whether
the interference, from the standpoint of a legitimate purpose,
can stand the test of reasonableness." Id. at 18.
¶20 In State ex rel. Small v. Bosacki, 154 Wis. 475, 143
N.W. 175 (1913), we examined a statute that established voter
residency requirements upon a claim that they limited the right
to vote of those who worked in a district different from that in
which they lived. Id. at 476. In upholding the law we said:
[T]he right as well as the duty is vested in the
legislature to prescribe reasonable rules and
regulations under which [the franchise] may be
exercised. Such rules and regulations tend to
certainty and stability in government and render it
10
No. 2012AP584
possible to guard against corrupt and unlawful means
being employed to thwart the will of those lawfully
entitled to determine governmental policies. Their
aim is to protect lawful government, not to needlessly
harass or disfranchise any one.
Id. at 478-79.
¶21 More recently in Gradinjan v. Boho, 29 Wis. 2d 674,
139 N.W.2d 557 (1966), we examined a statute that prohibited
counting absentee ballots if they were not properly
authenticated by a municipal clerk. We upheld the
constitutionality of the statute, while explaining that, "the
right of a qualified elector to cast his ballot for the person
of his choice cannot be destroyed or substantially impaired.
However, the legislature has the constitutional power to say
how, when, and where his ballot shall be cast." Id. at 684-85
(quoting State ex rel. Frederick v. Zimmerman, 254 Wis. 600,
613, 37 N.W.2d 473 (1949)).
4. The League's Article III challenges
i. additional elector qualification
¶22 The League's major argument is that Act 23 is
unconstitutional because being required to present Act 23-
acceptable photo identification is an additional elector
qualification beyond what is listed in Article III, Section 1 of
the Wisconsin Constitution. As provided in full above,
Section 1 requires that an elector be a United States citizen,
at least 18 years of age, a resident of Wisconsin and a resident
of the district in which the elector offers to vote.
¶23 We agree with the League that the legislature cannot
add to these qualifications for electors. As we explained in
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No. 2012AP584
State ex rel. La Follette v. Kohler, 200 Wis. 518, 228 N.W. 895
(1930), "[t]he persons who may exercise the right of suffrage
and the day of election are fixed by the constitution." Id. at
548. However, we also noted that "[t]hese provisions are not
and were never intended to be self-executing or exclusive of
regulation in other respects. . . . [T]he power to prescribe the
manner of conducting elections is clearly within the province of
the legislature." Id.
¶24 As we have explained, "the legislature has the
constitutional power to say how, when, and where" elections
shall be conducted. Frederick, 254 Wis. at 613. The mode and
manner of conducting an election includes the legislature's
ability "to require any person offering to vote, to furnish such
proof as it deems requisite, that he is a qualified elector."
Cothren, 9 Wis. at 258 (*283-84).
¶25 Although requiring any person offering to vote to
identify that he or she is a qualified elector is a
straightforward and longstanding proposition to which we have
uniformly adhered, we briefly discuss two cases decided shortly
after the ratification of the state constitution to illustrate
the principle. The first is State ex rel. Knowlton v. Williams,
5 Wis. 308 (1856). The plaintiff in Knowlton challenged a vote
to move the La Fayette County seat from Shullsburg to Avon. Id.
at 309. Part of that act provided that "no person shall be
deemed qualified to vote upon the question of the removal of the
county seat provided for in this act, unless he shall have
12
No. 2012AP584
resided in the town where he offers to vote at least thirty
days." Id. at 309-10.
¶26 At that time, Article III provided that "[e]very male
person of the age of twenty-one years or upwards, of the
following classes, who shall have resided in this State for one
year next preceding any election, shall be deemed a qualified
elector." Wis. Const. Art. III, § 1 (1848). None of the
subsequent classes added further residency requirements.
Futhermore, unlike the present version of Article III, the
original state constitution did not grant the legislature the
authority to define residency. As such, we concluded that the
law's 30-day residency requirement constituted an additional
elector qualification that the legislature was not empowered to
impose. Knowlton, 5 Wis. at 311.9
¶27 The second case, Cothren, involved another challenge
to a vote to move a county seat. Cothren, 9 Wis. 254 (*279).
Plaintiffs disputed the results of the vote based on a challenge
to a law that permitted election officials to question a voter
whose qualifications to vote were challenged. Id. at 257-58
(*283). Specifically, the law allowed election officials to ask
an elector "a series of questions . . . calculated to draw out
from such person the truth as to whether such cause of challenge
existed against him or not." Id. at 258 (*283).
9
See also State ex rel. Cornish v. Tuttle, 53 Wis. 45, 50,
9 N.W. 791 (1881) (invalidating a village charter provision
establishing a 20-day residency requirement in order to vote for
municipal officers).
13
No. 2012AP584
¶28 Article III made (and still makes) no mention of the
requirement that an elector answer questions or identify himself
or herself. Nonetheless, we upheld the law with reasoning
similar to Knowlton, concluding that "instead of prescribing any
qualifications for electors different from those provided for in
the constitution, [the law] contain[ed] only new provisions to
enable the inspectors to ascertain whether the person offering
to vote possessed the qualifications required by [the
constitution]." Id. Stated otherwise, requiring an elector to
demonstrate his or her constitutional qualifications to vote
does not constitute an additional elector qualification.
¶29 The League agrees that the legislature has the
authority to pass laws that allow election officials to
ascertain whether a potential voter possesses the constitutional
qualifications required of an elector. As the League
acknowledges, this includes the ability to require a potential
voter to identify himself or herself in some fashion, thereby
answering the question, "Are you who you say you are, a
constitutionally qualified elector?"
¶30 The focus of the League's argument is that Act 23's
presentation requirement goes beyond such authority because it
"bars constitutionally qualified voters from voting." This
argument fails for several reasons.
¶31 First, as the court of appeals noted, under the
League's proposed logic, "virtually any requirement placed on
voters would be an unconstitutional and impermissible additional
'qualification.'" League of Women Voters of Wis. Educ. Network,
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No. 2012AP584
Inc. v. Walker, 2013 WI App 77, ¶66, 348 Wis. 2d 714, 834 N.W.2d
393. Stated otherwise, if the League were correct, mode and
manner requirements for voting would not be permissible because
the State could not enforce them.
¶32 Second, and more important, the League's argument
fails under Cothren, which similarly prohibited a
constitutionally qualified elector from voting because he
refused to identify himself by answering a series of questions.
Notwithstanding Cothren, the League now makes the same argument
we flatly rejected in that case:
It is true that § 14 provides that if any person
challenged refused to answer, his vote should be
rejected. But does that make the answering of the
questions a new qualification for a voter? Certainly
not. Under the law, as it before existed, any one
whose vote was challenged had to take an oath that he
possessed the qualifications required by the
constitution. If he refused, his vote was rejected.
But this did not make the taking of the oath a new
qualification, so as to invalidate the law. It was
rejected only because he failed to furnish the proof
required by law, showing his right to vote.
Cothren, 9 Wis. at 258-59 (*284).10 As such, that an elector
must comply with Act 23 in order to vote cannot reasonably be
said to impose an additional elector qualification.
10
See also Gradinjan v. Boho, 29 Wis. 2d 674, 682-83, 139
N.W.2d 557 (1966) (quoting Anderson v. Budzien, 12 Wis. 2d 530,
533-34, 107 N.W.2d 496 (1961)) ("To prevent fraud, the
legislature in some instances has specifically stated that there
must be strict compliance with a statute or a ballot cannot be
counted. . . . [C]ompliance with those provisions is
mandatory.").
15
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¶33 This conclusion is bolstered by other ways in which an
elector who fails to comply with indisputably valid election
laws can lose the opportunity to vote. For example, an elector
who fails to arrive at a polling location on time can lose his
right to vote in that election. Therefore, although the elector
is a United States citizen, over the age of 18, and a resident
of the election district in which he or she offers to vote, if
the elector does not arrive at a polling place between the hours
of 7 a.m. and 8 p.m., and is not voting absentee, the elector
may lose his right to vote in that election. Wis. Stat.
§ 6.78(4). The same holds true for an elector who fails to
arrive at the correct polling place. Wis. Stat. § 6.77(1). Yet
none of these laws that affect the manner of voting can be
seriously characterized as additional elector qualifications.
¶34 Moreover, we note that Act 23 has a safeguard for
electors who do not present an acceptable form of identification
when offering to vote. In that instance, an elector may cast a
provisional ballot. Wis. Stat. § 6.97. If the elector presents
an acceptable form of identification by 4 p.m. on the Friday
after the election, his or her vote will be counted.
§ 6.97(3)(b).
¶35 For these reasons, we conclude that being required to
present Act 23-acceptable photo identification prior to voting
is not an elector qualification in addition to those set out in
Article III, Section 1 of the Wisconsin Constitution; but
rather, it is a mode of identifying those who possess
constitutionally required qualifications.
16
No. 2012AP584
¶36 Our decision is this regard is supported by the
decisions of courts in other jurisdictions that have considered
whether the requirement of presenting photo identification prior
to voting is an additional elector qualification. For example,
in City of Memphis v. Hargett, 414 S.W.3d 88 (Tenn. 2013), the
Tennessee Supreme Court considered the same constitutional
challenge the League presents to us. Id. at 108. The court
began by reviewing the Tennessee Constitution, which required
that "one must be at least eighteen years of age, a United
States citizen, a Tennessee resident . . . and registered to
vote." Id.
¶37 In rejecting the contention that the photo
identification requirement imposed by the Tennessee law was an
additional voter qualification, the court concluded that "the
photo ID requirement is more properly classified as a regulation
pertaining to an existing voting qualification." Id. at 109.
The court explained that photo identification was merely a "mode
of ascertaining" whether the potential voter possessed the
necessary constitutional qualifications to vote. Id. (quoting
Trotter v. City of Maryville, 235 S.W.2d 13, 19 (Tenn. 1950))
(further citation omitted).
¶38 In Democratic Party of Ga., Inc. v. Perdue, 707 S.E.2d
67 (Ga. 2011), the Georgia Supreme Court addressed whether
requiring the presentation of government-issued photo
identification to identify qualified voters was an additional
voter qualification. The court explained that the right to vote
is guaranteed by the Georgia Constitution, and it cannot be
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No. 2012AP584
denied or taken away by legislative enactment. Id. at 72.
However, the legislature may prescribe "reasonable regulations
as to how these qualifications shall be determined." Id.
Thereafter, the court concluded that photo identification was "a
reasonable procedure for verifying that the individual appearing
to vote in person is actually the same person who registered to
vote." Id.
¶39 In League of Women Voters of Ind., Inc. v. Rokita, 929
N.E.2d 758 (Ind. 2010), the Indiana Supreme Court rejected the
additional qualification contention that is made by the League
before us. The court first explained that the legislature could
"not by statutory enactment add a substantive qualification to
the right to vote." Id. at 767. However, the court further
explained that "[r]equiring qualified voters to present a
specified form of identification is not in the nature of such a
personal, individual characteristic or attribute but rather
functions merely as an election regulation to verify the voter's
identity." Id.
¶40 Although none of the state constitutions is word for
word identical with Article III, Section 1 of the Wisconsin
Constitution, the reasoning of all three supreme courts is
consistent with our own set out above. Accordingly, we now turn
to Article III, Section 2, which expressly permits the
legislature to provide for registration of voters.
ii. registration
¶41 In addition to the authority to "require any person
offering to vote[] to furnish such proof as it deems requisite[]
18
No. 2012AP584
that he is a qualif[i]ed elector," Cothren, 9 Wis. at 258 (*283-
84), the legislature may pass five types of election-related
laws pursuant Article III, Section 2 of the Wisconsin
Constitution. One of those enumerated types are laws that
"[p]rovid[e] for registration of electors." Wis. Const. Art.
III, § 2(2).
¶42 The court of appeals succinctly summarized the current
registration system as follows:
Election officials compile registration
information into "poll lists" for use at polling
places, containing "the full name and address of each
registered elector." Wis. Stat. § 6.36(2) (2009-10);
Wis. Stat. § 6.36(2). Thus, poll lists memorialize
who is registered to vote in a given election in a
given voting district and they play a critical role in
the voting process both pre- and post-Act 23. When a
potential voter arrives at the polling place for his
or her residence in a given election, he or she "shall
state his or her full name and address" to election
officials, who "shall verify that the name and
address" provided match the name and address on the
poll list. Wis. Stat. § 6.79(2)(a) (2009-10); Wis.
Stat. § 6.79(2)(a).
League of Women Voters, 348 Wis. 2d 714, ¶15 (footnote omitted).
¶43 Requiring an elector to identify himself or herself by
stating his or her full name and address is unquestionably part
of the registration process. After all, there would be no point
to compiling a list of registered electors if there were no
means by which to ascertain if the person offering to vote was
an elector appearing on the list. Identification of registered
voters by a government-issued photo identification is the mode
of identification that the legislature has chosen.
19
No. 2012AP584
¶44 Based on the League's arguments before us, we can see
no meaningful grounds on which to distinguish the photo
identification requirement from the requirement that an elector
state his or her full name and address in order to verify that
it matches the registration list. Both requirements permit use
of registration lists to verify at the polling place that the
potential voter is registered. An elector who fails to comply
with either procedure cannot vote. Furthermore, the League does
not rely on the difficulty and inconvenience of procuring an Act
23-acceptable form of identification.11 Therefore, the ease with
which most electors will be able to state their names and
addresses is not relevant to our decision in this case.
¶45 We now address the League's remaining argument, that
Act 23 fails an independent reasonableness requirement.
iii. reasonableness
¶46 According to the League, even laws that do not
constitute an additional qualification under Article III,
Section 1 or that come within one of the five types of election-
related laws under Article III, Section 2 must be "reasonable"
to pass constitutional muster. Act 23 fails this requirement,
11
In NAACP, Act 23 was subjected to a very different
challenge than that brought by the League. There, plaintiffs
submitted evidence to develop their allegation that obtaining
Act 23-acceptable photo identification imposed unconstitutional
burdens of time, inconvenience and cost on the right to vote and
that Act 23 was not reasonably necessary to effect a significant
government interest. NAACP, 2014 WI 98, ¶2, __ Wis.2d __.
Accordingly, we employed a more nuanced test, under which the
severity of the burden on the right to vote dictates the level
of scrutiny that is applied.
20
No. 2012AP584
according to the League, because "it destroys the right of a
qualified elector to cast a ballot" and "it does nothing to
preserve and promote the constitutional right to vote."
¶47 We acknowledge that in upholding various election
regulations we have couched some of our decisions in terms of
"reasonableness." E.g., McGrael, 144 Wis. at 17-18 (explaining
that laws regulating voting methods are enacted through the
legislature's use of police power, and accordingly, they must be
reasonable exercises of that power). Therefore, in order to
meet the League's argument, we assume without deciding, that
reasonableness functions as an independent limit on election
regulation.
¶48 In State ex rel. Van Alstine v. Frear, 142 Wis. 320,
125 N.W. 961 (1910), we considered a challenge to statutorily
established primary elections. Id. at 322-23. In addressing
the claim that the election regulation bore unconstitutionally
on the right to assemble, we explained that "[s]uch rights have
always been held to be subject to reasonable regulation." Id.
at 337 (citing Freund, Police Power, § 480; further citations
omitted). We noted that "[s]uch regulations, within reasonable
limits, strengthen and make effective the constitutional
guaranties instead of impairing or destroying them." Id.
(quoting State ex rel. Runge v. Anderson, 100 Wis. 523, 533-34,
76 N.W. 482 (1898)).
¶49 Accordingly, given our discussions of the use of
police power when enacting laws bearing on elections, we
understand the League's argument to be that when the legislature
21
No. 2012AP584
regulates elections, its use of police power is limited to
legislation that does not destroy or impair, but rather,
preserves and promotes the right to vote. Stated otherwise, if
the legislation does not do so, it is "unreasonable."
¶50 While we agree with the League that election laws must
not destroy or impair the right to vote, Act 23's presentation
requirement does not do so. As we explained in part above,
requiring a potential voter to identify himself or herself with
government-issued photo identification does not destroy or
impair the right to vote. Identification by the use of Act 23-
acceptable photo identification is the mode of ascertaining that
the potential voter is a constitutionally qualified elector.
Because the legislature has the power to regulate in ways that
affect the mode and manner of conducting elections and Act 23-
acceptable photo identification is a mode of ascertaining the
identity of electors, it is reasonable. See Kohler, 200 Wis. at
548; Frederick, 254 Wis. at 613; Cothren, 9 Wis. at 258 (*283-
84).
¶51 Furthermore, we have little trouble concluding that
Act 23's presentation requirement is a law that could
"strengthen and make effective the constitutional guarant[y]" of
suffrage. See Runge, 100 Wis. at 534. In a more recent
context, in Crawford, the United States Supreme Court concluded
that voter identification laws serve unquestionably legitimate
purposes: (1) "safeguarding voter confidence"; (2) "improv[ing]
and moderniz[ing] election procedures"; and (3) "deterring and
detecting voter fraud." Crawford, 553 U.S. at 191. Each of
22
No. 2012AP584
these purposes is reasonable precisely because it could preserve
and promote the right to vote.
¶52 For instance, photo identification could enhance the
integrity of elections because "[t]he electoral system cannot
inspire public confidence if no safeguards exist . . . to
confirm the identity of voters." Id. at 194 (quoting Report of
the Commission on Federal Election Reform, Building Confidence
in U. S. Elections § 2.5 (Sept. 2005)). Increased confidence in
the elector system, in turn, "encourages citizen participation
in the democratic process." Id. at 197.
¶53 Also, the presentation of photo identification "is to
some extent, a condition of our times. Many important personal
interactions are being modernized to require proof of identity
with photo identification." NAACP, 2014 WI 98, ¶44, __ Wis. 2d
__. Crawford also noted that the modern approach to
identification is moving toward photo identification. Crawford,
553 U.S. at 192.
¶54 Additionally, voter identification laws could detect
and deter fraud thereby ensuring that a constitutionally
qualified elector's vote is not diluted by fraudulent votes.12
This could preserve and promote the right to vote by assuring
12
A recent filing in Milwaukee County demonstrates that
voter fraud is a concern. See State v. Monroe, 2014CF2625
(June 20, 2014), wherein the Milwaukee County District
Attorney's office filed a criminal complaint against Robert
Monroe that alleged 13 counts of voter fraud, including multiple
voting in elections and providing false information to election
officials in order to vote.
23
No. 2012AP584
that a constitutionally qualified elector's vote counts with
full force and is not offset by illegal ballots. See Reynolds
v. Sims, 377 U.S. 533, 555 (1964).
¶55 In areas such as election regulation, "[w]here a
legislature has significantly greater institutional expertise,"
courts generally defer to legislative judgments. Nixon v.
Shrink Mo. Gov't PAC, 528 U.S. 377, 402 (2000) (Breyer, J.,
concurring). Therefore, rather than "asking whether the statute
burdens any one such interest in a manner out of proportion to
the statute's salutary effects upon the others," courts employ a
presumption of constitutionality. Id. In so doing, we decline
to evaluate whether Act 23 is the best way to preserve and
promote the right to vote, such "policy determinations . . . are
not properly addressed to the members of the Supreme Court of
Wisconsin." MTI v. Walker, 2014 WI 99, ¶181, __ Wis.2d __, __
N.W.2d __ (Crooks, J., concurring). Instead, we conclude that
Act 23 is a reasonable way to do so.
¶56 And finally, employing the presumption of
constitutionality in the present case, we conclude that the
League has failed to prove that presenting an Act 23-acceptable
photo identification is unconstitutional beyond a reasonable
doubt. Furthermore, Act 23's presentation requirement is a
reasonable voter regulation that is supportive of the State's
significant interests in promoting voter confidence in the
outcome of elections, improving and modernizing election
procedures and deterring voter fraud.
24
No. 2012AP584
III. CONCLUSION
¶57 We conclude that the League has failed to prove Act 23
unconstitutional beyond a reasonable doubt. The legislature did
not exceed its authority under Article III of the Wisconsin
Constitution when it required electors to present Act 23-
acceptable photo identification. Since 1859, we have held that
"it is clearly within [the legislature's] province to require
any person offering to vote[] to furnish such proof as it deems
requisite[] that he is a qualif[i]ed elector." Cothren, 9 Wis.
at 258 (*283-84). Requiring a potential voter to identify
himself or herself as a qualified elector through the use of Act
23-acceptable photo identification does not impose an elector
qualification in addition to those set out in Article III,
Section 1 of the Wisconsin Constitution.
¶58 We also conclude that the requirement to present Act
23-acceptable photo identification comes within the
legislature's authority to enact laws providing for the
registration of electors under Article III, Section 2 because
Act 23-acceptable photo identification is the mode by which
election officials verify that a potential voter is the elector
listed on the registration list.
¶59 Finally, we conclude that plaintiffs' facial challenge
fails because Act 23's requirement to present photo
identification is a reasonable regulation that could improve and
modernize election procedures, safeguard voter confidence in the
outcome of elections and deter voter fraud. See Crawford, 553
25
No. 2012AP584
U.S. at 191. Accordingly, we affirm the decision of the court
of appeals.
By the Court.—The decision of the court of appeals is
modified and as modified, affirmed; injunction vacated; cause
remanded to circuit court to dismiss the complaint.
26
No. 2012AP584.npc
¶60 N. PATRICK CROOKS, J. (concurring) In bringing a
purely facial challenge to Act 23, Wisconsin's voter photo
identification law, the plaintiffs have undertaken what is,
according to the United States Supreme Court, "of course, the
most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances exists
under which the Act would be valid."1 Because the majority
applies the presumption of constitutionality and requires that
the plaintiffs prove that the statute is unconstitutional beyond
a reasonable doubt, I join that holding and the mandate. I
write separately to emphasize that the result in this case is
compelled by the framework of law that we are bound to apply.
As has been recognized in other cases, it is often true that the
standard of review and the applicable analysis dictate the
outcome.2 That is the case here.
¶61 The question we must answer is not whether the voter
photo identification law is good policy, but whether we can say
1
United States v. Salerno, 481 U.S. 739, 745 (1987).
2
See Gibson v. State, 47 Wis. 2d 810, 819-20, 177 N.W.2d
912, 917 (1970) (holding that presumption that counsel has
fulfilled his duty of proper representation "is dispositive of
the defendant's claim" where there was no evidence to the
contrary) and Wisconsin Dep't of Revenue v. Menasha Corp., 2008
WI 88, ¶109, 311 Wis. 2d 579, 754 N.W.2d 95 (Crooks, J.,
concurring) (stating that "resolving the issue of deference is
key to a correct decision in this case"), and David R. Dow, The
Equal Protection Clause and the Legislative Redistricting Cases-
Some Notes Concerning the Standing of White Plaintiffs, 81 Minn.
L. Rev. 1123, 1130 (1997) (stating that in redistricting cases,
for example, "The issue of which standard of review to use is
pivotal because the choice of standard typically dictates the
outcome.")
1
No. 2012AP584.npc
beyond a reasonable doubt that Act 23 violates the Wisconsin
Constitution on any of the grounds claimed by these plaintiffs.
As a purely facial challenge, this challenge is distinct from
the challenge raised by plaintiffs in Milwaukee NAACP v. Walker,
2014 WI 98, ___ Wis. 2d ___, ___ N.W.2d. ___ (raising a
challenge similar to that raised in Crawford v. Marion County
Election Bd., 553 U.S. 181 (2008), and providing a record with
evidence of the Act's burden on individual Wisconsin residents).
Given the framework within which the question must be answered,
I agree with the holding of the majority that the plaintiffs
have not shown beyond a reasonable doubt that the statute is
unconstitutional and I join that holding and the mandate. I can
reach no other conclusion than to uphold Act 23 based on the
purely facial challenge here. I therefore respectfully concur.
I. THE ANALYTICAL FRAMEWORK
¶62 With this type of facial challenge, the odds are
against the plaintiffs at every turn. A court is bound to
recognize the presumption that the statute is constitutional.3
Here, the plaintiffs must prove otherwise beyond a reasonable
doubt.4 In considering such a challenge, a court must "resolve
any doubt about the constitutionality of a statute in favor of
upholding the statute."5
3
Tammy W. G. v. Jacob T., 2011 WI 30, ¶46, 333 Wis. 2d 273,
797 N.W.2d 854.
4
State v. Cole, 2003 WI 112, ¶11, 264 Wis. 2d 520, 665
N.W.2d 328.
5
Monroe Cnty. Dep't of Human Servs. v. Kelli B., 2004 WI
48, ¶16, 271 Wis. 2d 51, 2 678 N.W.2d 831.
2
No. 2012AP584.npc
¶63 In short, the question before us in this case is not
whether the Act is good policy, not whether it accomplishes what
it sets out to do, and not whether it is unfair under some
circumstances to some individuals. The question before us in
this case is solely this: starting with a presumption of
constitutionality in its favor, are we are persuaded beyond a
reasonable doubt that the statute violates the Wisconsin
Constitution in every circumstance?
II. EVALUATING PLAINTIFFS' CHALLENGE
¶64 The plaintiffs argue that requiring a voter to show
photo identification is flatly outside the legislature's power
because it impermissibly adds a qualification to the three
elector qualifications listed in the Wisconsin Constitution: a
United States citizen, aged 18 or older, and a resident of an
election district in Wisconsin.6
¶65 The plaintiffs argue that case law explicitly states
that "an act of the legislature which deprives a person of the
right to vote, although he has every qualification which the
constitution makes necessary, cannot be sustained"7 and "it is
incompetent for the legislature to add any new qualifications
for an elector."8 Furthermore, the plaintiffs contend that
"[t]he elector possessing the qualifications
prescribed by the constitution is invested with the
6
Wis. Const. art. III, § 1, states "Every 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."
7
Knowlton v. Williams, 5 Wis. 308, 316 (1856).
8
Cothren v. Lean, 9 Wis. 279, 283 (1859).
3
No. 2012AP584.npc
constitutional right to vote at any election in this
state. These qualifications are explicit, exclusive,
and unqualified by any exceptions, provisos or
conditions, and the constitution, either directly or
by implication, confers no authority upon the
legislature to change, impair, add to or abridge them
in any respect."9
The plaintiffs cite Dells v. Kennedy10 for the proposition that
even permitted regulation of elections must be reasonable; they
contend that this photo identification requirement is, on its
face, unreasonable and must be struck down. The plaintiffs also
contend that the Act does not fall into any of the categories of
laws that the legislature is permitted to pass under its
constitutional authority to regulate elections.11
¶66 However, as the court of appeals correctly and
concisely stated, each of these arguments is ultimately
unpersuasive in the context of this particular type of facial
challenge:
First, we conclude that the League's "additional
qualification" argument is defeated by concessions the
League makes and by Wisconsin Supreme Court precedent
9
Dells v. Kennedy, 49 Wis. 555, 556, 6 N.W. 246 (1880).
10
Dells, 49 Wis. 555, 558 (stating that "a registry law can
be sustained only, if at all, as providing a reasonable mode or
method by which the constitutional qualifications of an elector
may be ascertained and determined, or as regulating reasonably
the exercise of the constitutional right to vote at an election"
(emphasis added)).
11
Article III, Section 2 of the Wisconsin Constitution
states, "Laws may be enacted: (1) Defining residency. (2)
Providing for registration of electors. (3) Providing for
absentee voting. . . . "
4
No. 2012AP584.npc
addressing the authority of the legislature to enact
laws allowing officials to ascertain at the polls
which potential voters are qualified to vote. The
League has not shown that the photo identification
requirement is on its face an "additional
qualification" for voting, as opposed to a voter
registration regulation that allows election officials
"to ascertain whether the person offering to vote
possessed the qualifications required." See State ex
rel. Cothren v. Lean, 9 Wis. 254, [*279], 258, [*283]
(1859).
Second, we reject the League's additional, implied
argument that the requirement is unconstitutional
under the Article III right to suffrage because it
imposes a restriction that is, on its face, so
burdensome that it effectively denies potential voters
their right to vote, and is therefore constitutionally
"unreasonable." We express no opinion as to whether
such an argument might have merit if supported by fact
finding regarding the burdens imposed. However, in
this facial challenge in which the League does not
rely on any fact finding or evidentiary material, the
implied argument falls short.
Finally, as to the argument that, even if the
requirement is not an "additional qualification" or
constitutionally "unreasonable," the legislature
exceeded its authority in enacting it, we conclude
that this argument collapses with a concession by the
League, which we believe is a warranted concession.
The concession is that the legislature has implicit
but broad constitutional authority to establish a
voting registration system under which election
officials may require potential voters to identify
themselves as registered voters, including by
requesting photo identification.
League of Women Voters v. Walker, 2013 WI App 77, ¶¶3-5, 348
Wis. 2d 714, 834 N.W.2d 393.
¶67 The problem for the plaintiffs is that implicit in and
essential to the registration process is the necessity of
confirming the identity of the voter at the polling place. A
facial challenge to a more onerous identification requirement,
5
No. 2012AP584.npc
such as a requirement for every voter to show a current passport
or a group of documents, might conceivably be successful, but a
facial challenge to a requirement of the kind of photo
identification requirements at issue here cannot prevail. The
test for a purely facial challenge, as noted before, is not
whether the law is ever unconstitutional but whether it is
always and in every application unconstitutional.
III. CONCLUSION
¶68 The question here is not whether the photo voter
identification law is good policy, but whether the plaintiffs
have proved beyond a reasonable doubt that the Act violates the
Wisconsin Constitution on any of the grounds claimed by these
plaintiffs. Given the framework within which the question must
be answered, I agree with the holding of the majority that the
plaintiffs have not shown beyond a reasonable doubt that the
statute is unconstitutional, and I join that holding and the
mandate. I can reach no other conclusion than to uphold Act 23
based on the purely facial challenge here. I therefore
respectfully concur.
6
No. 2012AP584.ssa
¶69 SHIRLEY S. ABRAHAMSON, C.J. (dissenting).
Who are to be the electors . . . ? Not the rich, more
than the poor; not the learned, more than the
ignorant; not the haughty heirs of distinguished
names, more than the humble sons of obscurity and
unpropitious fortune. The electors are to be the
great body of the people of the United States.
The Federalist No. 57 (1788) (James Madison).
¶70 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.
¶71 Indeed the majority opinion in NAACP v. Walker1 brings
the specter of Jim Crow front and center. It invalidates costs
incurred by a qualified Wisconsin voter to obtain an Act 23
photo ID as an illegal de facto poll tax.2
¶72 The right to vote is "a sacred right of the highest
character."3 The Wisconsin Constitution explicitly confers the
right to vote upon all qualified individuals as specified in
Article III, Section 1 of the Constitution:
1
NAACP v. Walker, 2014 WI 98, ___ Wis. 2d ___, ___
N.W.2d ___, mandated of even date.
2
State and federal courts in the Jim Crow era rejected
challenges to literacy tests, Lassiter v. Northampton County Bd.
of Elections, 360 U.S. 45 (1959), and poll taxes, Breedlove v.
Suttles, 302 U.S. 277 (1937), and onerous registration
requirements that functionally deprived millions of the right to
vote. Asserting that the legislature had broad powers to
determine the conditions under which the right of suffrage may
be exercised, the courts turned a blind eye to the effects of
these tests on the electorate, especially African-Americans.
3
State v. Phelps, 144 Wis. 1, 15, 128 N.W. 1041 (1910).
1
No. 2012AP584.ssa
Every 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.
So fundamental and sacred is the right to vote, the Wisconsin
Constitution allows legislative regulation of voting in only a
few enunciated areas. Wis. Const. art. III, § 2.4
¶73 The right to vote is "a fundamental political right,
because [it is] preservative of all rights."5 Accordingly, the
right to vote is the most protected of rights:
The right of a qualified elector to cast a ballot for
the election of a public officer, which shall be free
and equal, is one of the most important of the rights
4
Article III, Section 2 of the Wisconsin Constitution
provides:
Laws may be enacted:
(1) Defining residency.
(2) Providing for registration of electors.
(3) Providing for absentee voting.
(4) Excluding from the right of suffrage persons:
(a) Convicted of a felony, unless restored to
civil rights.
(b) Adjudged by a court to be incompetent or
partially incompetent, unless the judgment specifies
that the person is capable of understanding the
objective of the elective process or the judgment is
set aside.
(5) Subject to ratification by the people at a general
election, extending the right of suffrage to
additional classes.
5
Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). See also
Reynolds v. Sims, 377 U.S. 533, 562 (1964) (right to vote is "a
fundamental political right . . . preservative of all rights.")
(quoting Yick Wo, 118 U.S. at 370).
2
No. 2012AP584.ssa
guaranteed to him [or her] by the constitution. If
citizens are deprived of that right, which lies at the
very basis of our Democracy, we will soon cease to be
a Democracy. For that reason, no right is more
jealously guarded and protected by the departments of
government under our constitutions, federal and state,
than is the right of suffrage. It is a right which
was enjoyed by the people before the adoption of the
constitution and is one of the inherent rights which
can be surrendered only by the people and subjected to
limitation only by the fundamental law.
State ex rel. Frederick v. Zimmerman, 254 Wis. 600, 613, 37
N.W.2d 473 (1949) (emphasis added).
¶74 When an individual who is qualified under the
Wisconsin Constitution goes to the polls to vote, no legislative
action may prevent that person from casting a ballot:
[A]n act of the legislature which deprives a person of
the right to vote, although he has every qualification
which the constitution makes necessary, cannot be
sustained.
State ex rel. Knowlton v. Williams, 5 Wis. 308, 316 (1856).
¶75 Yet under the majority opinion, an individual who has
fulfilled every requirement to vote——he or she is a citizen of
the United States, is a resident of Wisconsin, is over the age
of 18, and is registered——can nonetheless be denied the right to
vote for failing to produce a government-issued photo
identification enumerated in Act 23,6 such as a driver's license
or receipt therefore, a State identification card or receipt
therefore, a military identification card, a United States
passport, certain certificates of United States naturalization,
6
I refer to these enumerated photo identifications as "Act
23 photo ID."
3
No. 2012AP584.ssa
an identification by a federally recognized tribe, or certain
university and college identification cards.7
7
Section 1 of 2011 Wis. Act 23 reads as follows:
5.02(6m) of the statutes is created to read:
5.02(6m) "Identification" means any of the following
documents issued to an individual:
(a) One of the following documents that is unexpired
or if expired has expired after the date of the most
recent general election:
1. An operator's license issued under ch. 343.
2. An identification card issued under s. 343.50.
3. An identification card issued by a U.S.
uniformed service.
4. A U.S. passport.
(b) A certificate of U.S. naturalization that was
issued not earlier than 2 years before the date of
an election at which it is presented.
(c) An unexpired driving receipt under s. 343.11.
(d) An unexpired identification card receipt issued
under s. 343.50.
(e) An identification card issued by a federally
recognized Indian tribe in this state.
(f) An unexpired identification card issued by a
university or college in this state that is
accredited, as defined in s. 39.30(1)(d), that
contains the date of issuance and signature of the
individual to whom it is issued and that contains an
expiration date indicating that the card expires no
later than 2 years after the date of issuance if the
individual establishes that he or she is enrolled as
a student at the university or college on the date
that the card is presented.
4
No. 2012AP584.ssa
¶76 These Act 23 photo IDs are not mandated in the
Wisconsin Constitution as a qualification to vote.8
¶77 The State may require verification of the identity of
the voter, but Act 23 severely restricts and limits the form of
identification that enables a qualified voter to cast a ballot.
Rather than merely verify identity, Act 23's requirement
conditions the right to vote on possession of a restricted list
of identifying documents; no other form of proof of identity
than an Act 23 photo ID allows a qualified voter to verify
identity and cast a ballot. By restricting verification of
identity to only certain government-issued photo IDs, Act 23
does not condition the right to vote on verification of
identity. Instead, Act 23 conditions the right to vote on
production of a particular identity card. Requiring a specific
photo ID is an additional qualification on the right to vote,
and is therefore impermissible under the Wisconsin Constitution.
¶78 Without any evidence that in-person voter
impersonation is a problem in Wisconsin,9 the voting restrictions
that the majority opinion approves today give Wisconsin the most
restrictive voting laws in America,10 laws that systematically
8
Not every government-issued photo ID satisfies Act 23.
Act 23 does not allow an individual to use a Veteran's ID card,
the photo ID that the United States Department of Veterans
Affairs issues when veterans leave the military, or an ID from
one of Wisconsin's two-year technical colleges.
9
NAACP, 2014 WI 98, ¶¶134-136 (Crooks, J., dissenting).
10
For a helpful list of voter registration and
identification requirements from across the country, see
National Conference of State Legislatures, Voter Identification
Requirements, tbl. 2, http://www.ncsl.org/research/elections-
and-campaigns/voter-id.aspx (last visited July 14, 2014).
5
No. 2012AP584.ssa
disenfranchise entire classes of individuals who are without the
required Act 23 photo ID. For example, an estimated 23 percent
of persons aged 65 and over do not have a Wisconsin driver's
license or other Act 23 photo ID.11
¶79 Qualified and registered Wisconsin individuals who
voted in the last election may be barred from voting in the next
election under today's majority opinions in NAACP and the
instant case unless they obtain an Act 23 photo ID. Their vote
is now contingent upon possession of a specific ID, not their
constitutional qualifications to vote or their identity. The
possession of an Act 23 photo ID may be further contingent on
the discretion of an agency administrator who determines whether
an individual can obtain an Act 23 photo ID.12 "These
disenfranchised citizens would certainly include some of our
friends, neighbors, and relatives."13
No other state requires the production of one of a list of
permissible government-issued photo identifications as in Act
23, and no other state forbids other methods of voter identity
verification such as affidavit, as does Act 23.
11
In contrast, 99% of Indiana's voting age population
possessed photo IDs that complied with the new Indiana law.
Crawford v. Marion County Elections Bd., 553 U.S. 181, 188 n.6
(2008).
12
See NAACP, 2014 WI 98, ¶67.
13
Circuit court op. at 9.
We would ignore reality were we not to recognize that the
requirements of Act 23 fall with unequal weight on voters
according to economic status. See Bullock v. Carter, 405 U.S.
134, 144 (1972); see also NAACP, 2014 WI 98, ¶¶123-129 (Crooks,
J., dissenting).
6
No. 2012AP584.ssa
¶80 I write in dissent to discuss both the instant case
and the NAACP case.
¶81 First, the two cases address the constitutionality of
the same Act 23 but are inconsistent.
¶82 According to NAACP, the fees imposed to obtain an Act
23 photo ID constitute an impermissible de facto poll tax.14
Thus Act 23 creates an unconstitutional precondition on the
right to vote, according to NAACP. A charge to comply with Act
23 creates a severe and unconstitutional burden on the right to
vote, according to NAACP.15
¶83 In the instant case, the court, addressing the same
Act 23, concludes that no precondition to voting has been
created. This inconsistency between the two cases is
unexplained.
¶84 How can the de facto poll tax be unconstitutional in
the NAACP case, while the court declares all of Act 23
constitutional in the instant case as not imposing any
additional qualifications for voters? Isn't NAACP precedential
in the instant case?
¶85 Additionally, the NAACP majority opinion is internally
inconsistent in failing to invalidate various fees and costs
associated with obtaining documentation necessary to obtain an
Act 23 photo ID. Fees and costs imposed on a person
constitutionally qualified to vote are an integral part of the
Act 23 photo ID requirement.
14
See NAACP, 2014 WI 98, ¶83 n.9 (Crooks, J., dissenting).
15
NAACP, 2014 WI 98, ¶¶61-65.
7
No. 2012AP584.ssa
¶86 Second, I articulate the key principles from our case
law that guide the high and exacting standard of judicial
scrutiny required for review of legislation regulating the right
to vote.
¶87 Neither NAACP nor the instant case applies Wisconsin's
voting rights jurisprudence to interpret the Wisconsin
Constitution in the present case.
¶88 Indeed, the two opinions apply different standards of
review to gauge the constitutionality of Act 23 under Article
III of the Wisconsin Constitution. How can that be? The same
Act 23 is challenged in both cases as unconstitutional under
Article III of the state constitution. Both cases present a
facial challenge. The plaintiffs in both cases assert that Act
23 imposes a burden on qualified voters. No persuasive reason
is given for the different standards of review in the two cases.
¶89 Our state's case law outlines key principles that
protect the right to vote in the face of legislative election
regulations. The "presumption of constitutionality"16 applied by
the majority opinion in the instant case is wholly inappropriate
under longstanding state law for the protection of the
fundamental, sacred right to vote.
¶90 Third, I apply the principles of the Wisconsin voting
rights cases to the instant case and conclude that the League of
Women Voters and the circuit court are correct: Act 23
unconstitutionally adds a qualification to the right to vote.
16
Majority op., ¶¶16-17; concurrence, ¶¶62-63.
8
No. 2012AP584.ssa
¶91 If a qualified voter fails to produce an Act 23 photo
ID, Act 23 bars that person from voting even though that voter
meets all the qualifications enumerated in the Wisconsin
Constitution and meets all the statutory voter registration
requirements. Thus Act 23 deprives qualified, registered
Wisconsin voters of the right to vote, based solely on their
failure to meet a legislatively established precondition to
voting. Such deprivation amounts to an impermissible
legislative amendment of the Wisconsin Constitution to add a
voter qualification.
¶92 Today's holding, along with the holding in NAACP,
undermines the very foundation of our democracy and deprives
individuals of the most sacred of constitutional rights through
no fault of their own.17
¶93 Act 23 is facially unconstitutional and void. This
court cannot rewrite Act 23 to make it constitutional. That
task is for the legislature.
¶94 Accordingly, I dissent.
I
¶95 The opinions in the instant case and NAACP are
inconsistent. If Act 23 imposes a de facto poll tax in NAACP,
does it not impose a de facto poll tax in the instant case? The
majority opinion and Justice Crooks' dissent in NAACP recognize
that Act 23 in effect creates, in whole or in part, facially
17
Dells v. Kennedy, 49 Wis. 555, 557, 6 N.W. 246 (1880).
9
No. 2012AP584.ssa
unconstitutional restrictions on the right to vote.18 The
holding of NAACP is precedential and governs the instant case.
¶96 The NAACP majority opinion follows the lead of the
United States Supreme Court in Harper v. Virginia State Board of
Elections, 383 U.S. 663 (1966), which finally struck down poll
tax laws that were created to burden African-American voters.19
¶97 In Harper, the Court struck down a $1.50 poll tax on
the ground that "payment of any fee" to a Virginia governmental
entity could not be required as a precondition of voting.
Although the Harper Court discussed the uneven impact such a fee
may have on those with limited financial resources, the Court
struck down the fee for all voters. The Harper Court declared
that payment of a fee to vote is invidious discrimination and
has no relation to voter qualifications:
[W]e must remember that the interest of the State,
when it comes to voting, is limited to the power to
fix qualifications. Wealth, like race, creed, or
color, is not germane to one's ability to participate
intelligently in the electoral process. . . . To
introduce wealth or payment of a fee as a measure of a
voter's qualifications is to introduce a capricious or
irrelevant factor. The degree of the discrimination
is irrelevant. . . . [T]he requirement of fee paying
causes an 'invidious' discrimination. . . .
. . . .
18
NAACP, 2014 WI 98, ¶¶60-65; id., ¶¶86-97 (Crooks, J.,
dissenting).
19
The court overruled Breedlove, 302 U.S. 277, which had
upheld poll taxes as constitutional just 30 years prior. By the
time Harper was mandated, only four states still imposed poll
taxes: Texas, Alabama, Virginia, and Mississippi.
10
No. 2012AP584.ssa
For to repeat, wealth or fee paying has, in our view,
no relation to voting qualifications; the right to
vote is too precious, too fundamental to be so
burdened or conditioned.20
¶98 The NAACP majority opinion asserts that "to
constitutionally administer Act 23, the [Department of Motor
Vehicles] may not require documents in order to issue a
[Department of Transportation] photo identification card for
voting that require payment of a fee to any government agency."
NAACP, 2014 WI 98, ¶7 n.5.
¶99 Despite apparently invalidating some fees and costs
for obtaining Act 23 photo IDs, the NAACP majority opinion does
not resolve the de facto poll tax issue for other fees and
costs.
¶100 For example:
• An individual may need to obtain a court order in the
case of a name change, gender change, adoption, or
divorce, which will require additional filing and
court costs.21
• An individual may need to provide a marriage
certificate or certified copy of a judgment of
divorce,22 which will require court costs, filing fees,
and other costs associated with a court order.
20
Harper v. Virginia State Bd. of Elections, 383 U.S. 663,
668, 670 (1966) (internal quotation marks omitted).
21
Wis. Admin. Code § Trans 102.15(3)(a)17 (Feb. 2013).
22
Wis. Admin. Code § Trans 102.15(4)(a)11. (Feb. 2013).
11
No. 2012AP584.ssa
• An individual must provide citizenship documentation
to obtain Act 23 photo ID,23 such as a passport, a
certificate of United States citizenship, a
certificate of naturalization, etc., each of which
have associated costs imposed by the federal
government. The fee for applying is $165 for a
passport for first-time adult applicants,24 and $600
for a certificate of naturalization.25
¶101 Exactly which costs and severe burdens the NAACP
majority opinion invalidates is anyone's guess.
¶102 The NAACP majority opinion avers that it cures the
unconstitutional imposition of these costs and fees through its
"saving construction" of Wis. Admin. Code § Trans 102.15(3)(b)-
(c).26
23
Wis. Admin. Code § Trans 102.15(3m) (Feb. 2013).
24
See United States Passports & International Travel,
United States Department of State, Passport Fees,
http://travel.state.gov/content/passports/english/passports/info
rmation/costs.html (last visited July 14, 2014).
25
See Instructions for Form N-600, Application for
Certificate of Citizenship, OMB No. 1615-0057 at 7 (2014),
available at
http://www.uscis.gov/sites/default/files/files/form/n-
600instr.pdf (last visited July 14, 2014).
26
Wisconsin Admin. Code § Trans 102.15(3)(b)-(c) (Feb.
2013) states as follows:
(b) If a person is unable to provide documentation
under par. (a), and the documents are unavailable to
the person, the person may make a written petition to
the administrator of the division of motor vehicles
for an exception to the requirements of par. (a). The
application shall include supporting documentation
required by sub. (4) and:
12
No. 2012AP584.ssa
¶103 The NAACP majority opinion reads this Department of
Transportation regulation to provide that if a qualified voter
asserts that he or she is obtaining a photo ID for the purposes
of voting, the administrator shall exercise his or her
discretion in deciding whether to issue a DOT photo
identification card without the documents referenced in § Trans
102.15(3)(a) "in a constitutionally sufficient manner." NAACP
majority op., ¶71. The NAACP majority opinion leaves the
administrator and the public to guess what a "constitutionally
sufficient manner" is.
¶104 The NAACP majority opinion regarding Department of
Transportation regulations is not, however, a cure for the
constitutional defect.
¶105 First, the NAACP majority opinion provides no process
for an individual to demonstrate that he or she is
"constitutionally 'unable'" to obtain the necessary
documentation required by Wis. Admin. Code
1. A certification of the person's name, date of birth
and current residence street address on the
department's form;
2. An explanation of the circumstances by which the
person is unable to provide any of the documents
described in par. (a); and
3. Whatever documentation is available which states
the person's name and date of birth.
(c) The administrator may delegate to the
administrator's subordinates the authority to accept
or reject such extraordinary proof of name and date of
birth.
13
No. 2012AP584.ssa
§ Trans 102.15(3)(a).27 What procedures must be followed by the
Department of Transportation administrator and his or her
designees when reviewing a petition or request? What is the
timeline for petitioning the Department of Transportation or the
Department of Motor Vehicles and the timeline for the agencies
to process the petition or request? What proof may the
administrator require? Can a Department of Transportation
administrator and his or her designees apply his or her
discretion to deny Act 23 photo ID because he or she does not
find the petition credible? How may the administrator's ruling
be challenged?
¶106 The NAACP majority opinion appears to leave discretion
in the hands of the Department of Transportation administrator
and his or her designees but provides no guidance to the
Department of Transportation or to the public about proper
procedures and the rights of qualified voters.
¶107 Second, the section of administrative regulations that
the NAACP majority opinion "construes" to cure Act 23's
constitutional defects appears to apply only to documents
regarding proof of name and date of birth, not to other
documentation required to obtain an Act 23 photo ID. A
naturalization certificate required to prove citizenship or a
marriage certificate required to prove identity may require
payments to a government agency; these documents are not covered
by the NAACP majority opinion's "saving" regulation.
27
NAACP, 2014 WI 98, ¶69.
14
No. 2012AP584.ssa
¶108 Third, as Justice Crooks' dissent notes, fees and
costs other than fees paid directly to government agencies may
be required to obtain an Act 23 photo ID.28 These costs are
similarly unaddressed and unresolved and may be invidious
discrimination.
¶109 Thus, although the NAACP majority opinion appears to
deem invalid any fees and costs paid to any government agency
necessary for documentation to obtain an Act 23 photo ID, its
supposed "saving construction" of the administrative regulations
fails to cure the myriad variety of costs that Act 23 imposes on
individuals attempting to obtain the photo ID necessary to
exercise the right to vote.
¶110 The NAACP majority opinion invalidates the
unconstitutional imposition of some de facto poll taxes as part
of Act 23, but leaves other de facto poll taxes, fees, and costs
intact.
¶111 Yet the majority opinion in the present case declares
that Act 23 is facially constitutional. Neither the majority
opinion nor I can explain the inconsistency.
II
¶112 The majority opinion erroneously uses the "presumption
of constitutionality" standard of review to support its
conclusions that Act 23 is constitutional. Majority op., ¶¶16-
17. This standard is particularly inappropriate in the instant
case, because:
28
NAACP, 2014 WI 98, ¶¶102-103, 117-132 (Crooks, J.,
dissenting).
15
No. 2012AP584.ssa
A. The majority opinion in NAACP has already declared a
fee imposed by Act 23 an unconstitutional prerequisite
for a qualified voter to exercise the right to vote;
B. The majority opinion in NAACP apparently uses several
different standards of review; and
C. The presumption of constitutionality standard does not
comport with longstanding state case law in which
legislative regulation of voting rights has been
challenged.
A
¶113 The court has already declared in NAACP that, as a
matter of law, the fees imposed by Act 23 for a Department of
Transportation photo identification card are in effect a de
facto poll tax. The NAACP court has declared that the fees are
severe, are so burdensome that they effectively deny qualified
persons their right to vote, and are constitutionally
impermissible.
¶114 The NAACP case is precedential in the instant case.
When the court itself has in effect invalidated an integral part
of Act 23 as unconstitutional, how can a presumption of
constitutionality apply in the instant case? How can the court
declare Act 23 constitutional in the instant case?
B
¶115 How can two opinions, League of Women Voters and
NAACP, mandated the same day, use a different standard of review
in gauging the constitutionality of Act 23? The same Act 23 is
challenged in both cases as unconstitutional under Article III
16
No. 2012AP584.ssa
of the state Constitution. A facial challenge is made in both
cases.29 Indeed, the plaintiffs in NAACP expressly disclaim that
that they are making an as-applied challenge.30 The majority
opinion in NAACP concedes that the challenge is a facial
challenge.31
¶116 In the instant case, the majority opinion employs the
"presumption of constitutionality" standard, mucking it up
somewhat. See ¶61, infra.
¶117 In NAACP, it is unclear what standard of review, if
any, the majority opinion employs to reach its result.
Depending on the section, the majority opinion in NAACP asserts
several different standards of review.
¶118 In the section labeled "Standard of Review," the NAACP
majority opinion asserts that "[i]f we conclude that a voter
regulation creates a severe burden on electors' right to vote,
we will apply strict scrutiny to the statute, and conclude that
it is constitutional only if it is narrowly drawn to satisfy a
compelling state interest." NAACP, 2014 WI 98, ¶22. This
appears to be some variation on the Anderson/Burdick federal
test for Equal Protection Clause and First Amendment facial
challenges to statutes that impair the right to vote. See
NAACP, 2014 WI 98, ¶¶26-39.
29
See NAACP, 2014 WI 98, ¶¶19, 21; majority op., ¶14;
Justice Crooks' concurrence, ¶¶61-63.
30
Brief of the Plaintiffs-Respondents at 30.
31
NAACP, 2014 WI 98, ¶¶19, 21.
17
No. 2012AP584.ssa
¶119 In a strict-scrutiny analysis, the State has the
burden to show that the regulation is necessary to serve a
compelling state interest and that it is narrowly drawn to
achieve that end." State v. Baron, 2009 WI 58, ¶45, 318
Wis. 2d 60, 769 N.W.2d 34.
¶120 Yet in the section titled "Foundational Principles,"
the NAACP majority opinion asserts the presumption of
constitutionality is the proper standard, stating that "statutes
are presumed to be constitutional." NAACP, 2014 WI 98, ¶24.
The NAACP majority opinion further asserts that it is the
plaintiffs challenging the statute who "must prove that the
statute is unconstitutional beyond a reasonable doubt." Id.,
¶25.
¶121 The majority opinion also asserts that the presumption
of constitutionality "may vary depending on the nature of the
constitutional claim at issue." NAACP, 2014 WI 98, ¶24 (citing
League of Women Voters). An identical statement appears in the
majority opinion in the instant case, citing NAACP. Majority
op., ¶16. This statement is an unexplained cipher, with no
meaning or guidance for the analysis in either case or in future
cases.
¶122 In its section titled "Saving construction," the NAACP
majority opinion applies yet another standard of review,
asserting that Act 23 is not unconstitutional, averring that "we
do not initially weigh the burden identified . . . because a
saving construction of the administrative rule must be
18
No. 2012AP584.ssa
considered first."32 Yet a court typically applies a "saving
construction" by first assessing whether the statute is
unconstitutional and only then assessing whether a saving
construction can be applied.33
¶123 The NAACP majority opinion usurps the legislative
role: "[A]lthough this Court will often strain to construe
legislation so as to save it against constitutional attack, it
must not and will not carry this to the point
of . . . judicially rewriting it. Otherwise there would be no
such thing as an unconstitutional statute." State v. Zarnke,
224 Wis. 2d 116, 139-40, 589 N.W.2d 370 (1999) (quoting United
States v. X-Citement Video, 513 U.S. 64, 86 (1994) (Scalia, J.,
dissenting)) (internal quotation marks and citations omitted).
¶124 Finally, after its various machinations on the
standard of review, the NAACP majority opinion claims to apply
rational-basis review. NAACP, 2014 WI 98, ¶71.
¶125 Only by applying multiple contradicting standards of
review can the NAACP majority opinion reach its multiple and
32
NAACP, 2014 WI 98, ¶65.
33
See State v. Zarnke, 224 Wis. 2d 116, 124-25, 139-40, 589
N.W.2d 370 (1999) (determining whether to apply a saving
construction after State conceded that statute would be invalid
otherwise); State v. Hall, 207 Wis. 2d 54, 67, 557 N.W.2d 778
(1997) (presenting three issues, and first determining that
statute is unconstitutional, followed by saving construction
analysis).
The NAACP majority opinion cites a variety of cases that
deal with the jurisprudential doctrine of interpreting statutes
to avoid a constitutional conflict. See NAACP, ¶64. None of
these cases addresses the "savings construction" doctrine.
19
No. 2012AP584.ssa
contradictory holdings: in one breath invalidating fees required
for documentation to obtain an Act 23 photo ID as an
unconstitutional de facto poll tax and severe burden, and in the
next breath asserting that Act 23 is nonetheless constitutional
and that "the burdens of time, inconvenience and cost upon
electors' right to vote are not severe under our interpretation
of § Trans 102.15 . . . ."34
¶126 The NAACP majority opinion's shifting standards of
review throughout the opinion make it impossible to evaluate how
or why the court reaches its decision.
¶127 The majority opinions in NAACP and in the instant case
fail to rely on Wisconsin cases that have over the years
interpreted and applied the voting provisions of the Wisconsin
Constitution.35
¶128 The majority opinions ignore the uniqueness of
Wisconsin's constitutional provision on voting rights and
Wisconsin's unique jurisprudence protecting the right to vote
under its own constitution. The United States Constitution does
not protect voting rights in the same way as does the Wisconsin
Constitution,36 and the federal challenges to state voter ID
legislation are based on the Equal Protection Clause.
34
NAACP, 2014 WI 98, ¶72.
35
See Crawford, 553 U.S. 181; Burdick v. Takushi, 504 U.S.
428 (1992); Anderson v. Celebrezze, 460 U.S. 780 (1983).
36
Compare San Antonio Indep. Sch. Dist. v. Rodriguez, 411
U.S. 1, 132 n.78 (1973) ("[T]he right to vote, per se, is not a
[federal] constitutionally protected right.") with Phelps, 144
Wis. at 14-15 ("[T]he right to vote is one . . . guaranteed by
the declaration of rights and by section 1, art. 3 of the
[Wisconsin] Constitution.").
20
No. 2012AP584.ssa
¶129 The majority opinion in the present case attempts to
distinguish the League of Women Voters and NAACP cases to
justify its different approaches to the standard of review. See
majority op., ¶11 n.8.
¶130 The majority opinion claims that the two cases are
different because the League of Women Voters does not assert
that Act 23 is so burdensome that it effectively denies the
right to vote. Majority op., ¶11, n.8. The majority opinion
ventures that, in contrast, in NAACP the burdens on the right to
vote are at issue. Majority op., ¶44 n.11.37
¶131 This distinction is not borne out in the cases.
Burdens on the right to vote of constitutionally qualified
voters are at issue in both cases.
¶132 The League of Women Voters complains that Act 23
adopts and adds qualifications for voting that are not in the
Wisconsin Constitution, namely requiring production of a
specified photo ID, and thus on its face Act 23 impairs or
destroys the voting right of persons constitutionally qualified
to vote and creates an impermissible burden on the right to
vote.38 Act 23 destroys or burdens the right to vote by
excluding from voting any registered, qualified voter who fails
to display the mandated form of photo ID.
37
See also Justice Crooks' concurrence, ¶61 (determining
that the claims in the instant case are "distinct from the
challenge raised" in NAACP because the plaintiffs in NAACP
"provid[ed] a record with evidence of the Act's burden on
individual Wisconsin residents").
38
See Brief of Plaintiffs-Respondents-Petitioners at 38-39.
21
No. 2012AP584.ssa
¶133 In contrast, the NAACP asserts that Act 23 imposes
burdens of time, inconvenience, and costs on the
constitutionally qualified voter to obtain an Act 23 photo ID.39
¶134 In both the instant case and NAACP, the challenges are
plainly facial challenges asserting a burden on Wisconsin
citizens who are qualified to vote under the Wisconsin
Constitution.40 The precise nature of the burden complained of
39
The record in League of Women Voters also reflects
financial and other costs that burden qualified electors' right
to vote. See, e.g., Plaintiff's Amended Complaint, R22:7-9,
¶¶18-26; Affidavit of Michael McCabe, President of Wisconsin
Democracy Coalition (alleging that various members of his
organization will have their right to vote burdened by the photo
identification requirements); Affidavit of Analiese Eicher,
Government Relations Director, United Council of UW Students,
(alleging that many universities and colleges do not have photo
identification cards that comply with Act 23 and do not plan to
produce such cards, and that this will prevent many students for
whom student identification cards are primary identification
from voting); Affidavit of Ingrid Thompson (alleging that
individuals in the senior living facility that she directs will
be unable to vote); Affidavit of Amy Mendel-Clemens in Support
of Amicus Curiae Brief on Behalf of Dane County (alleging that
replacement birth certificates are difficult or impossible to
obtain from certain states, and that California and Pennsylvania
have not responded or do not respond to the forms used by Dane
County).
40
The distinction between a facial and an as-applied
challenge is not always clear. Justice Crooks states the
standard of review as follows: "The appropriate framework to
analyze the plaintiffs' challenge to Act 23 is the modified
facial challenge approach, which the United States Supreme Court
has applied in comparable cases." NAACP, 2014 WI 98, ¶85
(Crooks, J., dissenting) (footnote omitted).
There is also confusion about the application of the
"presumption of constitutionality" standard of review to a
facial challenge or an as-applied challenge.
22
No. 2012AP584.ssa
in each case is different, but in both cases the plaintiffs urge
that Act 23 imposes a burden on qualified voters impairing or
depriving them of their Wisconsin constitutionally guaranteed
right to vote.
¶135 If a more stringent standard of review than the
"presumption of constitutionality" applies in NAACP, it must, in
my opinion, also apply in the instant case.
¶136 Neither the majority opinion in the instant case, nor
the concurrence in the instant case, nor the majority opinion in
NAACP advances satisfactory reasons for applying different
standards in the two cases. I conclude that this court must
apply an identical standard of review in both cases and that the
standard of review is not the "presumption of constitutionality"
standard.
C
¶137 Finally, I conclude that the "presumption of
constitutionality" standard of review does not apply because our
case law in voting rights cases contravenes this standard. No
Wisconsin court has ever applied this presumption to legislative
regulations on voting. None of the cases cited by the majority
opinion supporting this standard of review relates to the
The majority opinion, ¶13, distinguishes between standards
of review for facial and as-applied cases, quoting State v.
Wood, 2010 WI 17, ¶13, 323 Wis. 2d 321, 780 N.W.2d 63). Compare
Wood, 323 Wis. 2d 321, ¶15 (applying identical presumption of
constitutionality to both facial and as-applied challenges) with
Tammy W.-G. v Jacob T., 2011 WI 30, ¶¶46-48, 333 Wis. 2d 273,
797 N.W.2d 854 (citing Wood for the proposition that the
presumption applies in as-applied challenges but that "we do not
presume that the State applies statutes in a constitutional
manner").
23
No. 2012AP584.ssa
fundamental right to vote, except for NAACP, whose standard of
review is, to be charitable, confusing.41
¶138 Our cases addressing voting rights often do not state
a standard of review as such (as was judicial practice at the
time the cases were decided), and they predate the federal
adoption of strict scrutiny as a judicial standard for reviewing
constitutional claims under the federal Constitution.42
¶139 Nevertheless, key principles can be drawn from our
jurisprudence to guide our review of laws governing the right to
vote. The essence of the cases is that courts must apply the
highest levels of scrutiny to laws regulating the right to
vote.43
41
Majority op., ¶¶15-17. See ¶¶115-136, supra.
42
The first case invoking the "strict scrutiny" standard in
evaluating Wisconsin constitutional rights that I can find is
Town of Vanden Broek, Outagamie Cnty. v. Reitz, 53 Wis. 2d 87,
191 N.W.2d 913 (1971). No reported Wisconsin appellate case
since that date other than the instant case and NAACP has raised
a facial challenge to a state statute or regulation alleging
that it violates Article III of the Wisconsin Constitution.
43
The United States Supreme Court has similarly stated that
before the right to vote "can be restricted, the purpose of the
restriction and the assertedly overriding interests served by it
must meet close constitutional scrutiny." Dunn v. Blumstein,
405 U.S. 330, 336 (1972) (citing Evans v. Cornman, 398 U.S. 419,
422 (1970)).
The NAACP majority opinion at ¶22 describes its test as
applying strict scrutiny if a "severe burden" exists on the
right to vote, while the dissent in NAACP follows the language
of the Anderson/Burdick test requiring balance between any
burden on the right to vote and the state interests. NAACP,
2014 WI 98, ¶¶100-102 (Crooks, J., dissenting).
24
No. 2012AP584.ssa
¶140 Because of the fundamental nature of the right to
vote, the court has recognized that the right to vote is unlike
other rights guaranteed by the Wisconsin Constitution and is
specially protected from legislative interference:
Thus is given the right to vote a dignity not less
than any other of many fundamental rights. So it has
been rightly said by judicial writers: "It is a right
which the law protects and enforces as jealously as it
does property in chattels or lands. . . . The law
maintains and vindicates" it "as vigorously as it does
any right of any kind which men may have or enjoy."
State v. Staten, 46 Tenn. 233, 241 [(1869)]. It is
commonly referred to as a sacred right of the highest
character and then again, at times, as a mere
privilege, a something of such inferior nature that it
may be made "the foot–ball of party politics." We
subscribe to the former view, placing the right of
suffrage upon the high plane of removal from the field
of mere legislative material impairment.
State ex rel. McGrael v. Phelps, 144 Wis. 1, 15, 128 N.W. 1041,
1046 (1910) (emphasis added).
¶141 One key principle in the case law is that the
legislature cannot impose a restriction on voting that
constitutes an additional "qualification" on the right to vote.
Only the Wisconsin Constitution can impose additional
qualifications on the right to vote.
¶142 The case law has drawn a line between those laws that
create an "additional qualification" on the right to vote,
thereby impairing an otherwise qualified voter from casting a
Furthermore, Wisconsin applies a strict scrutiny standard
of review for First Amendment challenges. Courts have located
the federal right to vote in the First Amendment right to
freedom of speech. See Harper, 383 U.S. at 665 ("[T]he right to
vote in state elections is implicit, particularly by reason of
the First Amendment . . . .").
25
No. 2012AP584.ssa
vote, and those that merely verify a voter's existing
constitutional qualifications without restricting his or her
existing rights.
¶143 This distinction between impermissibly adding
qualifications and verifying existing qualifications appears,
for example, in two early cases, also cited by the majority
opinion,44 State ex rel. Knowlton v. Williams, 5 Wis. 308 (1856),
and State ex rel. Cothren v. Lean, 9 Wis. 254 [*279] (1859).
¶144 In Knowlton, an elector challenged a 30-day residency
requirement that restricted the right to vote to those
individuals who had resided in the district for 30 days prior to
election. The court in Knowlton voided the residency
requirement as an additional qualification on the right to vote
beyond what the constitution required:
We have no doubt that the qualifications of the voters
as fixed by the act are, in respect to residence in
the state, quite different from those prescribed in
the constitution. The latter instrument is explicit;
it provides in express terms that a person who
possesses the other qualifications mentioned, and who
has resided in the state one year next preceding any
election, shall be deemed a qualified elector at such
election.
. . . .
The constitution provides, that if a person possesses
certain qualifications, and has resided in the state
one year next preceding any election, he shall be
deemed a qualified elector at such election; while the
act of the legislature in question provides, in
effect, that this shall not be sufficient, but that he
shall, in addition, have resided for thirty days
44
Majority op., ¶¶25-32.
26
No. 2012AP584.ssa
previous to the time when the election is holden in
the town where he offers his vote.
We have no doubt that the legislature have the power
to provide that a person who has a right to vote under
the constitution shall be allowed to exercise this
right only in the town where he resides, because this
would be only to prescribe the place where a right
which he possessed under the constitution shall be
exercised, and fixes upon the most convenient place
for its exercise. Such a provision does not add to
the qualifications which the constitution requires;
but an act of the legislature which deprives a person
of the right to vote, although he has every
qualification which the constitution makes necessary,
cannot be sustained.45
¶145 Thus, the law fixing the location where an elector can
vote regulated merely how, where, and when to vote, but by
adding that the elector had to reside in the district for the
previous 30 days, the law in question restricted the rights of
those voters who would otherwise be qualified under the
Wisconsin Constitution to vote.
¶146 The prohibited law in Knowlton must be compared with
the law upheld in Cothren. In Cothren, an elector challenged a
law that allowed elections officials to "challenge for cause" a
voter's qualifications. An election official could challenge
the voter's qualifications for cause at the polls; if the voter
refused to answer the election official's questions, the vote
would not be counted.46
¶147 The court in Cothren approved of the "challenge for
cause" requirement as mere proof that the qualified voter indeed
possessed the constitutional qualifications to vote,
45
Knowlton, 5 Wis. at 316 (emphasis added).
46
Cothren v. Lean, 9 Wis. 254, 258-59 [*284] (1859).
27
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distinguishing Knowlton because the challenge-for-cause
procedure in Cothren did not prescribe additional
qualifications. The Cothren court reasoned that the law tested
whether the constitutional qualifications for electors were met,
rather than creating new requirements. The voter in Cothren
"failed to furnish the proof required by law, showing his right
to vote," that is, he failed to prove that he had met the
existing constitutional qualifications:
[T]he grounds of challenge to which the sets of
questions are adapted, imply only the qualifications
required by the constitution; nothing further or
different. This act, therefore, instead of
prescribing any qualifications for electors different
from those provided for in the constitution, contains
only new provisions to enable the inspectors to
ascertain whether the person offering to vote
possessed the qualifications required by that
instrument, and certainly it is competent for the
legislature to enact such. The necessity of
preserving the purity of the ballot box, is too
obvious for comment, and the danger of its invasion
too familiar to need suggestion. While, therefore, it
is incompetent for the legislature to add any new
qualifications for an elector, it is clearly within
its province to require any person offering to vote,
to furnish such proof as it deems requisite, that he
is a qualified elector.
Cothren, 9 Wis. at 258-59 (1859) (emphasis added).
¶148 In sum, the Cothren law targeted only the
qualifications required by the constitution. The questions the
voters were asked were those questions necessary to ascertain
whether the voter satisfied the qualifications enumerated in the
Wisconsin Constitution: "the grounds of challenge to which the
sets of questions are adapted, imply only the qualifications
28
No. 2012AP584.ssa
required by the constitution; nothing further or different."
Cothren, 9 Wis. at 258.
¶149 The guiding distinction between an impermissible
additional qualification and proof of qualification as
elucidated by Knowlton and Cothren continued in later cases.
¶150 In State ex rel. Wood v. Baker, 38 Wis. 71 (1875), the
court further clarified the reasoning of Knowlton and Cothren
regarding boundaries on regulating the right to vote. In Baker,
the law required a voter's name be verified against an election
registry before the voter would be allowed to vote. The
registry erroneously omitted a voter.
¶151 The Baker court upheld the registry law, but it put a
finer point on the distinction between prohibited "additional
legislative qualifications" and permissible legislative
requirements of "proof of the right" by asserting that the
requirement of proof could be only "proof consistent with the
right itself," i.e., the proof could verify only the
constitutional qualifications of electors. The Baker court, 38
Wis. at 86, declared that the legislature may require reasonable
proof of the right to vote but cannot impose "a condition
precedent to the right" to vote. Being on the registry was not
a precondition to vote because the law "left other proof open to
the voter at the election consistent with his present right to
vote." The Baker court explained:
And such we understand to be the theory of the
registry law . . . not to abridge or impair the right,
but to require reasonable proof of the right. It was
undoubtedly competent for the legislature to provide
for a previous registry of voters, as one mode of
29
No. 2012AP584.ssa
proof of the right; so that it should not be a
condition precedent to the right itself at the
election, but, failing the proof of registry, left
other proof open to the voter at the election,
consistent with his present right (emphasis added).
¶152 A second key principle emerges from the case law: "No
constitutional qualification of an elector can in the least be
abridged, added to, or altered, by legislation or the preten[s]e
of legislation. Any such action would be necessarily absolutely
void and of no effect."47 If a law requires of a voter what is
impracticable or impossible, and makes the voter's right to vote
depend upon a condition he or she is unable to perform, the law
impermissibly abridges the constitutional right to vote and is
void:
No registry law can be sustained which prescribes
qualifications of an elector additional to those named
in the constitution, and a registry law can be
sustained only, if at all, as providing a reasonable
mode or method by which the constitutional
qualifications of an elector may be ascertained and
determined, or as regulating reasonably the exercise
of the constitutional right to vote at an election. If
the mode or method, or regulations, prescribed by law
for such purpose, and to such end, deprive a fully
qualified elector of his right to vote at an election,
without his fault and against his will, and require of
him what is impracticable or impossible, and make his
right to vote depend upon a condition which he is
unable to perform, they are as destructive of his
constitutional right, and make the law itself as void,
as if it directly and arbitrarily disfranchised him
without any pretended cause or reason, or required of
an elector qualifications additional to those named in
the constitution.
Dells v. Kennedy, 49 Wis. 555, 558, 6 N.W. 246 (1880) (second
emphasis added).
47
Dells, 49 Wis. at 557.
30
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¶153 As the Baker court emphasized, "[E]very one having the
constitutional qualifications then, may go to the polls, vested
with the franchise, of which no statutory condition precedent
can deprive him."48 If voters "went to the election clothed with
a constitutional right of which no statute could strip them,
without some voluntarily failure on their own part to furnish
statutory proof of right," regulations that modified the
qualifications to deprive these qualified voters of the right to
vote in those circumstances would "be monstrous."49
¶154 A third key principle in the case law distinguishes
between cases involving laws that impair or destroy the right to
vote, which require the most stringent judicial review, and laws
that enhance or expand the right to vote, which receive
deference to the legislature as long as the regulation is
reasonable.
¶155 If a legislative regulation enhances, protects, or
expands the right to vote, the inquiry into the regulation need
address only whether the regulation was "reasonable," and our
review gives deference to "legislative discretion."50 If,
however, a legislative regulation restricts or impairs the right
to vote, then the regulation is void on its face, regardless of
state interest.
48
Baker, 38 Wis. at 86.
49
Id. at 89.
50
See Phelps, 144 Wis. at 18; see also State ex rel. Wood
v. Baker, 38 Wis. 71, 86 (1875) (holding that requiring some
proof of identity prior to voting existed "not to abridge or
impair the right, but to require reasonable proof of the right"
and therefore holding proof of identity as constitutional).
31
No. 2012AP584.ssa
¶156 This principle was stated in Dells v. Kennedy, 49 Wis.
555, 6 N.W. 246 (1880). The Dells court noted that the
legislature could enact reasonable and necessary regulations to
protect the right to vote, but that the legislature's
regulations were afforded no deference if they impaired the
right to vote:
For the orderly exercise of the right [to
vote] . . . it is admitted that the legislature must
prescribe necessary regulations as to the places, mode
and manner, and whatever else may be required to
insure its full and free exercise. But this duty and
right inherently imply that such regulations are to be
subordinate to the enjoyment of the right, the
exercise of which is regulated. The right must not be
impaired by the regulation. It must be regulation
purely, not destruction. If this were not an
immutable principle, elements essential to the right
itself might be invaded, frittered away, or entirely
exscinded, under the name or preten[s]e of regulation,
and thus would the natural order of things be
subverted by making the principle subordinate to the
accessory. To state is to prove this position. As a
corollary of this, no constitutional qualification of
an elector can in the least be abridged, added to, or
altered, by legislation or the preten[s]e of
legislation. Any such action would be necessarily
absolutely void and of no effect.
Dells, 49 Wis. at 557.
¶157 This principle was further elucidated in State ex rel.
McGrael v. Phelps, 144 Wis. 1, 128 N.W. 1041 (1910). The Phelps
court recognized that the legislature is afforded a certain
amount of deference by the judiciary when the legislature uses
the police power to enact reasonable regulations upon voting.
If, however, the regulation impairs the exercise of the right to
vote rather than improves it, the regulation is no longer
subject to deference and is instead unconstitutional:
32
No. 2012AP584.ssa
Regulation which impairs or destroys rather than
preserves and promotes, is within condemnation of
constitutional guarantees. So it follows that, if the
law in question trespasses upon the forbidden field,
it is only law in form.
State v. Phelps, 144 Wis. 1, 18 (1910).
¶158 A final principle from our case law recognizes that
because, as a practical matter, government must regulate
elections so that they are orderly, fair, and honest, and that
such regulations will invariably impose some burdens upon
individual voters, the legislature has the power to say how,
when, and where a qualified elector may vote, but may not
regulate who may vote. The who is governed by the Wisconsin
Constitution.
¶159 In State ex rel. Frederick v. Zimmerman, 254 Wis. 600,
37 N.W.2d 472 (1949), the court explained the legislature's
power as follows:
It is true that the right of a qualified elector to
cast his ballot for the person of his choice cannot be
destroyed or substantially impaired. However, the
legislature has the constitutional power to say how,
when and where his ballot shall be cast for a justice
of the supreme court.
Frederick, 254 Wis. at 613-14 (emphasis added).
¶160 The legislature cannot, however, under the guise of
regulating how, when, and where a ballot may be cast, destroy or
substantially impair the right to vote.51 No matter how
reasonable the law and how much deference the legislature
receives, "[a]ll these laws were subject to the rule of law that
51
State ex rel. Frederick v. Zimmerman, 254 Wis. 600, 613,
37 N.W.2d 472 (1949).
33
No. 2012AP584.ssa
an elector has the right to cast his [or her] ballot for
whomsoever he [or she] chooses and cannot constitutionally be
deprived of it."52
¶161 The essence of the voting rights jurisprudence
interpreting and applying the Wisconsin Constitution is that
courts must apply the highest level of scrutiny to laws
regulating the right to vote.
III
¶162 Applying the highest level of scrutiny and applying
the key principles derived from our voting rights case law, I
conclude that Act 23 is unconstitutional.
¶163 The force of the Wisconsin Constitution is clear:
"[E]very one having the constitutional qualifications [at the
time of election] may go to the polls, vested with the
franchise, of which no statutory condition precedent can deprive
him [or her][, b]ecause the constitution makes him [or her], by
force of his [or her] present qualifications, 'a qualified voter
at such election.'" Baker, 38 Wis. at 86.
¶164 Under Act 23, a voter qualified under the Wisconsin
Constitution——that is, a person who is over the age of 18, is a
United States citizen, and is a resident of Wisconsin——and who
has met the registration requirements under the Wisconsin
statutes cannot vote even if he or she comes to the polls with
extensive personal photo identification information. Only an
Act 23 photo ID suffices. This requirement strips a qualified
registered voter of the right to vote.
52
Id. at 618.
34
No. 2012AP584.ssa
¶165 The legislature does not have the power under the
guise of an election regulation to strip a qualified, registered
voter of the right to vote.53 Act 23 deprives a person of the
right to vote even though that person meets the constitutional
qualifications to vote and is therefore unconstitutional.
¶166 I agree with the League of Women Voters and the
circuit court that Act 23 impermissibly adds a fourth
qualification for voting in addition to the three specified in
the Wisconsin Constitution. The fourth qualification is a
legislatively specified photo ID. Act 23 deprives all
qualified, registered voters who do not possess an Act 23 photo
ID from exercising the right to vote. The legislature has thus
rendered an Act 23 photo ID in and of itself a qualification for
voting.54
¶167 The State may seek verification of a voter's identity,
but the verification must be limited to "proof consistent with
the right itself."55 Act 23 does not merely verify a voter's
identity. Rather, Act 23 creates a precondition to vote. In
order to cast a ballot, a voter must obtain a specified
government photo ID.
53
Baker, 38 Wis. at 89.
54
Act 23 does not fall into any of the five areas of law in
which Article III, Section 2 of the Wisconsin Constitution
authorizes the legislature to enact laws. It does not define
residency. It does not provide for registration of voters. It
does not provide for absentee voting. It does not exclude from
suffrage persons convicted of a felony or adjudged incompetent.
It does not extend the right of suffrage to additional classes.
55
See Baker, 38 Wis. at 86.
35
No. 2012AP584.ssa
¶168 To obtain an Act 23 photo ID, the voter must verify
his or her identity with additional documentation.56 These
56
Wisconsin Admin. Code § Trans 102.15(4)(a) (Feb. 2013)
allows one of the following as satisfactory proof of identity to
obtain a photo ID:
(a) A supporting document identifying the person by
name and bearing the person's signature, a
reproduction of the person's signature, or a
photograph of the person. Acceptable supporting
documents include:
2. A valid operator's license, including a license
from another jurisdiction, except a province of the
Dominion of Canada, bearing a photograph of the
person;
Note: Temporary driving receipts from other
jurisdictions are not acceptable. "Another
jurisdiction" is defined at s. 340.01 (41m), Stats.
3. Military discharge papers (including certified copy
of federal form DD-214);
4. A U.S. government and military dependent
identification card;
5. A valid photo identification card issued by
Wisconsin or another jurisdiction, except a province
of the Dominion of Canada, bearing a photograph of the
person;
11. A marriage certificate or certified copy of
judgment of divorce;
Note: A testament to the marriage document does not
satisfy this requirement.
13. A social security card issued by the social
security administration;
Note: Metal or other duplicate Social Security Cards
are not acceptable.
23. Any document permitted under sub. (3)(a), if it
bears a photograph of the person and was not used as
proof of name and date of birth.
36
No. 2012AP584.ssa
documents sufficiently provide proof of identity to receive an
Act 23 photo ID.
¶169 Yet these documents, all of which verify one's
identity for the purposes of obtaining an Act 23 photo ID, are
not acceptable under Act 23 to prove identity for the purposes
of voting. By restricting verification of identity to specified
government-issued photo IDs, Act 23 does not condition the right
to vote on verification of identity. Instead, Act 23 conditions
the right to vote on production of a particular identity card.
Requiring a specific identity card is an additional
qualification on the right to vote, and it is therefore
impermissible under the Wisconsin Constitution.
¶170 The mandatory precondition to voting of presenting an
Act 23 photo ID is imposed on all voters who have already
established their qualifications to vote through the
registration process. No connection exists between the Act 23
voter ID requirement and a voter's constitutional qualifications
to vote.
¶171 Unlike constitutionally permissible verifications of
voter identity, which enable a fully qualified voter to vote by
providing various forms of proof of identity, Act 23 has no such
Note: This permits a person to use two separate
documents under sub. (3)(a) to satisfy the
requirements of subs. (3) and (4).
24. Department of homeland security/transportation
security administration transportation worker
identification credential.
37
No. 2012AP584.ssa
fail-safe provision.57 The only way a voter can exercise the
right to vote under Act 23 is to display the requisite ID.
¶172 If the qualified voter cannot obtain, loses, or
forgets to bring an Act 23 voter ID, Act 23 strips a qualified
voter of the right to vote, even though the ID required by Act
23 is mentioned nowhere in the Constitution. "[A]n act of the
legislature which deprives a person of the right to vote,
although he has every qualification which the constitution makes
necessary, cannot be sustained."58
¶173 Act 23 in effect amends the Wisconsin Constitution to
add a fourth voter qualification, an Act 23 photo ID card,
without complying with the constitutional provisions governing
amendment of the Wisconsin Constitution.59 This the legislature
cannot do.
57
In State ex rel. Wood v. Baker, 38 Wis. 71, 86-87 (1875),
the legislation provided for a fail-safe mechanism. A qualified
voter who failed to appear on the election registry could
nonetheless furnish proof of his right to vote. "[P]roof of the
right [to vote] . . . should not be a condition precedent to the
right itself at the election, but failing the proof of registry
[the legislature] left other proof open to the voter at the
election, consistent with his present right."
In contrast with Act 23, in Michigan, a voter who does not
have adequate photo identification is not required to incur the
costs of obtaining photo identification as a condition of
voting. The Michigan voter may simply sign an affidavit in the
presence of an election inspector and does not incur any costs
in the execution of an affidavit. In re Request for Advisory
Opinion Regarding Constitutionality of 2005 AP 71, 740
N.W.2d 444 (Mich. 2007).
58
Knowlton, 5 Wis. at 316.
59
Wis. Const. art. XII, §§ 1-2.
38
No. 2012AP584.ssa
¶174 Furthermore, Act 23 violates key principles
established in Wisconsin case law for review of a law regulating
voting.
¶175 Act 23 does not preserve, promote or enhance a
qualified voter's right to vote; it impairs or destroys a
qualified voter's constitutional right to vote by requiring a
specific form of voter photo identification.60 It imposes
significant burdens of direct and indirect costs on a
constitutionally qualified voter to acquire the photo ID, as
Justice Crooks explains in his dissent in NAACP, thus severely
and significantly impairing the right of a qualified voter to
cast a ballot.61 "The right must not be impaired by the
regulation. It must be regulation purely, not destruction."62
¶176 Act 23 abridges, adds to, or alters the constitutional
qualifications of electors. As a result of Act 23, qualified
voters are barred from voting through no fault of their own.63
It is clear on the face of Act 23 that some voters will be asked
to perform "impracticable or impossible conditions."64
"[L]egislation on the subject of elections is within the
constitutional power of the Legislature so long as it merely
60
See Phelps, 144 Wis. at 18.
61
NAACP, 2014 WI 98, ¶¶117-132 (Crooks, J., dissenting).
62
See Dells, 49 Wis. at 557.
63
"It would be a fraud on the constitution to hold
[qualified electors] disenfranchised without notice or fault."
Baker, 38 Wis. at 89.
64
See Dells, 49 Wis. at 557.
39
No. 2012AP584.ssa
regulates the exercise of the elective franchise, and does not
deny the franchise itself either directly or by rendering its
exercise so difficult and inconvenient as to amount to a
denial."65
¶177 Act 23 does not regulate how, when, and where a voter
casts his or vote.66 By creating the strict requirement that
voters without an Act 23 photo ID "shall not be permitted to
vote," the legislature has restricted the franchise to a limited
group of individuals——those individuals who can present an Act
23 photo ID. Thus Act 23 regulates who is qualified to vote,
adding a fourth qualification for voters to meet.
¶178 For these reasons, I conclude that Act 23 is
unconstitutional on its face.
* * * *
¶179 Our State has long recognized that the right to vote
is the highest of rights and has enshrined the right in our own
constitution. It is the right upon which all other rights
depend in a democratic society, and our court has consistently
defended and protected that right above all others.
¶180 As a result of Act 23, a qualified registered voter,
with all the proof of his or her qualifications and identity,
can no longer be assured of the right to vote. Act 23 adds a
new qualification for voters, repugnant to our constitution and
65
State ex rel. Van Alstine v. Frear, 142 Wis. 320, 341,
125 N.W. 961 (1910) (allowing legislative enactment of primary
election ballot procedures).
66
See Frederick, 254 Wis. at 613.
40
No. 2012AP584.ssa
"monstrous" to those qualified voters denied the right to vote
through no fault of their own.67
¶181 For many, including our friends, neighbors, and
relatives, Act 23 imposes a precondition to voting that deprives
qualified voters of the right to vote. Such a precondition is
unconstitutional. "[E]very one having the constitutional
qualifications then, may go to the polls, vested with the
franchise, of which no statutory condition precedent can deprive
him."68
¶182 For the foregoing reasons, I dissent.
¶183 I am authorized to state that Justice ANN WALSH
BRADLEY joins this dissent.
67
See Baker, 38 Wis. at 89: "It would be a fraud on the
constitution to hold [a voter whose name was not in the
registry] disfranchised without notice or fault. . . . And it
would be monstrous in us to give such an effect to the registry
law, against its own spirit and in violation of the letter and
spirit of the constitution."
68
Baker, 38 Wis. at 86
41
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1