- The Washington Times - Tuesday, April 29, 2014

A federal judge reopened the voter identification debate Tuesday when he struck down a new Wisconsin law, saying it discriminated against blacks and Hispanics, and renewing doubts about the Republican push for stricter voting laws across the country.

Democrats hailed the ruling and said they wanted it expanded to other jurisdictions, but Wisconsin vowed to appeal.

Some legal analysts said Judge Lynn Adelman’s decision appears to contradict a 2008 Supreme Court ruling that upheld a similar law in Indiana.

Judge Adelman said up to 300,000 Wisconsin residents — mostly blacks and Hispanics — could be turned away from polls as a result of the ID requirement. He said his calculation far outnumbered potential fraudulent votes.

“Act 23 has a disproportionate impact on Black and Latino voters because it is more likely to burden those voters with the costs of obtaining a photo ID that they would not otherwise obtain,” the judge wrote in a 90-page opinion that included detailed appendixes laying out his calculations.

“This burden is significant not only because it is likely to deter Blacks and Latinos from voting even if they could obtain IDs without much difficulty, but also because Blacks and Latinos are more likely than whites to have difficulty obtaining IDs,” he wrote.

He said the voter ID legislation, signed by Gov. Scott Walker, a Republican, violated the U.S. Constitution and the 1965 Voting Rights Act, which prohibits election laws that disproportionately affect minorities.

State Attorney General J.B. Van Hollen vowed to appeal the ruling.

“I am disappointed with the order and continue to believe Wisconsin’s law is constitutional,” he said in a statement.

Voter ID requirements are part of an increasingly heated debate between the two major political parties, and more than a dozen states have passed stricter laws since 2011.

Republicans say ballot integrity could be compromised without IDs, but Democrats say ballot access is a more pressing issue.

The U.S. Supreme Court last grappled with the issue in 2008, in Crawford v. Marion County Election Board. The justices upheld Indiana’s voter ID requirement in a 6-3 decision.

Half of the majority, however, said states should be left to weigh burdens versus benefits, and the other half, led by Justice John Paul Stevens, said there was no evidence that anyone would be unduly burdened or denied the right to vote by Indiana’s ID requirement.

Judge Adelman said the Wisconsin case is different because in Indiana, the challengers didn’t show any conclusive evidence that people would be denied a chance to vote. In Wisconsin, he said, there was compelling evidence that hundreds of thousands of people — more than enough to sway an election — would be denied a vote.

Rick Esenberg, founder of the Wisconsin Institute for Law & Liberty, which filed briefs in the case defending Wisconsin’s law, said Judge Adelman’s decision appears to go against what the Supreme Court held.

“It is a fairly aggressive decision which suggests that perhaps any type of photo identification requirement would violate Section 2 of the Voting Rights Act and possibly the Constitution,” Mr. Esenberg said. “In that sense, it is at least in tension with the Supreme Court’s decision in the Crawford Case out of Indiana.”

One key difference is that Indiana’s law allowed those who lacked photo IDs to cast provisional ballots, which would be counted if the voter proved identity. Wisconsin’s law lacked that safety valve, Mr. Esenberg said.

Edward Fallone, a law professor at Marquette University, said the legal challenges have become more sophisticated in the six years since the Crawford case.

“I think this case in Wisconsin is sort of on the cutting edge of applying the factual evidence and demonstrating, in Adelman’s ruling anyway, that there is not evidence of voter fraud, but there is evidence of specific individuals who are prevented from voting by the law,” he said. “Therefore, the burden on the right to vote outweighs any state interest here.”

The Milwaukee Journal Sentinel reported that Mr. Walker was reviewing the decision but had pledged to call a special session of the state Legislature if the law was struck down.

Judge Adelman said that if the Legislature rewrites the law to try to comply with his decision, he will expedite the case. But he signaled that he is unlikely to accept any photo ID requirement.

“Given the evidence presented at trial showing that Blacks and Latinos are more likely than whites to lack an ID, it is difficult to see how an amendment to the photo ID requirement could remove its disproportionate racial impact and discriminatory result,” the judge wrote.

Judge Adelman was a Democratic state senator in Wisconsin, and was appointed to the federal court by President Clinton in 1997.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

• Seth McLaughlin can be reached at smclaughlin@washingtontimes.com.

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