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Wisconsin, Pennsylvania Decisions Mean Big News Day for Voter ID

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[Image courtesy of Hispanically Speaking News]

Less than a week after an Arkansas judge blocked enforcement of the state's new voter ID law, a federal court in Wisconsin and and a state court in Pennsylvania handed down decisions regarding the fate of ID laws in those states as well.

In Wisconsin, U.S. District Judge Lynn Adelman found that Act 23 - the state's ID law - violated both the U.S. Constitution and the Voting Rights Act and permanently enjoined its enforcement. His action, which comes after a similar injunction by a state court, means that supporters of ID in Wisconsin must now convince both a federal appeals court and the state supreme court to reinstate the law.

As usual, UC-Irvine's Rick Hasen has a quick but informative analysis of the decision, in which he suggests that the very good news for ID opponents in yesterday's decision could face strong challenges on appeal:

Both the constitutional law and VRA section 2 claims are controversial. On the con law point, the judge purports to apply the "Anderson-Burdick" balancing test that the Supreme Court applied in upholding Indiana's voter ID law in the Crawford case. The judge purports to apply Crawford, but reaches a different result. It is not clear that this is a fair application of that test-which seems to suggest at most that the law be upheld as to most voters but create an "as applied" exemption for a specific class of voters. The judge said that this was not practical in this case given the large number of Wisconsin voters who lack id. It is not clear that the appellate courts will agree ...

On the VRA issue, this is the first full ruling on how to adjudicate voter id vote denial cases under section 2. The key test appears on page 52 of the [decision]: "Based on the text, then, I conclude that Section 2 protects against a voting practice that creates a barrier to voting that is more likely to appear in the path of a voter if that voter is a member of a minority group than if he or she is not. The presence of a barrier that has this kind of disproportionate impact prevents the political process from being 'equally open' to all and results in members of the minority group having 'less opportunity' to participate in the political process and to elect representatives of their choice." The judge also approaches the causation/results question in a straightforward way. It is not clear whether the appellate courts will agree or not agree with this approach, which would seem to put a number of electoral processes which burden poor and minority voters up for possible VRA liability.

Either way, it is a virtual certainty that this case will eventually find its way to the U.S. Supreme Court, which could be asked to revisit its 2008 decision in the Crawford case.

Less well noticed - but no less important - was the news yesterday that a Pennsylvania state court judge denied a request to reconsider his decision blocking the Commonwealth's voter ID law and entered a permanent injunction against its enforcement, meaning that only the Pennsylvania Supreme Court could reinstate the law. CBSPhilly has more:

In a 29-page ruling, Commonwealth Court judge Bernard McGinley wrote that the voter ID law failed to provide voters "liberal access" to valid forms of photo ID cards. He wrote that the law therefore potentially deprives thousands of voters of their fundamental right to cast a ballot, and so the ruling rendering the law unconstitutional must stand ...

The Republican-backed voter ID law passed in March 2012, ostensibly to prevent election day voter fraud at the polls. At trial, the state admitted there has been no evidence of such voter fraud in Pennsylvania.

The Commonwealth of Pennsylvania has spent millions in state and federal funds educating voters on the new law since it passed.

The important thing to remember about the Pennsylvania case is that the court is blocking the enforcement of ID because the state has failed to make required IDs available - not necessarily because some voters lack ID. This is an argument that is gaining traction elsewhere and is leading states like Mississippi to engage in fairly aggressive outreach to ensure that all eligible voters who need ID can get one.

These cases - plus the Arkansas case from late last week - suggest that voter ID is likely to stay with us as a hot topic well into the foreseeable future.

Stay tuned!

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