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7th Cir. Panel Skeptical of Wis. Voter ID Challenge

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By Mark Wilson, Esq. on September 15, 2014 5:38 PM

On Friday, a panel of the Seventh Circuit heard oral arguments in Frank v. Walker, a challenge to Wisconsin's voter ID law (listen to an MP3 here).

Following oral arguments, the panel issued an order allowing enforcement of the state's voter ID law, which means the law will likely be in effect during the upcoming November 4 election.

It's Not That Burdensome

Wisconsin's assistant attorney general, Clay Kawski, argued that the burden the law places on voters is either hypothetical or not that big of a deal. More than 90 percent of registered voters have a photo ID, he said.

The district court didn't engage in comprehensive fact-finding to determine exactly how many people would be unable to get a photo ID (the district court said about 300,000, but didn't elaborate beyond that) or why they couldn't get one. The qualitative difference matters, said Kawski, because the burden of having to go down to the DMV to get a photo ID isn't an unconstitutional burden.

Kawski also characterized "anecdotes" of people being unable to get photo IDs as outlier examples. Eddie Lee Holloway Jr., for example, couldn't get an ID because his name is misspelled as "Eddie Lee Junior Holloway" on his birth certificate. Kawski said that, while there are no figures for how often such unusual problems occur, he expects that it's extremely rare. Even so, Judge Frank Easterbrook couldn't get Kawski to say with certainty how many people would need to be burdened before the law would be unconstitutional.

Causation

Judge Easterbrook posed the same question to Dale Ho, the attorney for the plaintiffs. Easterbrook wanted to know why a 2 percent disparity in photo ID possession by whites and African Americans can't simply be explained by economics and not discrimination. African Americans in Wisconsin own cars at a lower rate than whites, and thus don't have to have driver's licenses.

Easterbrook also took issue with the significance of the 300,000 figure; he wanted Ho to tell him what percentage of the adult population in Wisconsin was registered to vote, but Ho didn't have that number. "It's interesting in part -- is 300,000 a large or a small number relative to that? Maybe that tells you that it's too hard to register in Wisconsin, but if we don't know what that number is, it's hard to compare the difficulties of registration versus the difficulties of getting photo ID, given that you're registered."

At the end of the day, the thread running through the oral arguments was that neither party was sure what effect the photo ID requirement would have on voter turnout. The panel's decision not to stay enforcement of the law, however, might suggest that they didn't think it would have very much of an effect.

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