We may be months away from Election Day, but in states fighting legal battles over newly minted voter-ID laws, time is short. These laws, which require residents to show government-issued identification to vote, have been shown to disenfranchise poor and minority voters in the first place. But as I've written before, the timeframe for implementing them poses another major problem; just look at Pennsylvania, where volunteers and activists are rushing to inform residents about a voter-ID law passed in March. The fact is, comprehensive voter-education efforts can hardly be conducted in two months. It is this basic issue—whether there is enough time to properly implement voter-ID laws before November 6—that has kept voter-ID from going into effect in many states.
But in Wisconsin, Attorney General J.B. Van Hollen is hoping there's still time for one last full-court press to rescue the state's strict voter-ID law. State courts in two different cases—one brought by the League of Women Voters, the other by the Milwaukee NAACP—have already ruled that it violated the state constitution. Normally, at this point the attorney general would file an appeal to the state Court of Appeals, which kicks off a lengthy process. Then, only after the appeals court had made its ruling would the case go to the state Supreme Court (assuming one side wanted to take the case further). Given that currently there are two separate challenges to the law, that would likely happen twice. In short, there's almost no way the state could fully and fairly implement the law by Election Day.
But Van Hollen has nonetheless asked the state Supreme Court to bypass the Court of Appeals and take the case directly. He also wants two different cases against the voter-ID law consolidated so that things can move more quickly. Finally, while court proceedings continue, the attorney general wants the Supreme Court to suspend the rulings from the lower courts and allow the law to go into effect immediately.
Why? It's all "in a determined effort to ensure the law will be in place for the November 6, 2012, general election."
Van Hollen has asked the state Supreme Court to fast-track the cases before, when they were still being heard in the lower courts. The Supreme Court refused.
The lower-court judges wrote strongly worded opinions against the law. In the case brought by the League of Women Voters, the judge determined that the photo-ID requirement "impermissibly eliminate[d] the right of suffrage altogether for certain constitutionally qualified electors." In the NAACP case, the court found that more than 9 percent of registered voters in the state lacked the necessary ID—over 300,000 people statewide; the judge also pointed to the lack of fallback plans for those who could not obtain an ID, and noted that elderly and African American voters would be disproportionately affected. Both judges granted injunctions.
Besides those concerns, now there's an even more pressing reason to stop the law from going into effect: There's simply not enough time left to implement it.
"The time factor alone is reason for the Supreme Court to not put this thing back in limbo," says Denise Lieberman, a staff attorney with the Advancement Project, a voting-rights group. The Advancement Project and the ACLU have filed a federal lawsuit against the photo-ID law, but given that state courts have already suspended the law, they have put their challenge on hold. But if the Supreme Court decides to hear the case, Lieberman says the federal suit will move forward. But even at a breakneck pace, says Lieberman, it will take time for the both sides to collect the necessary evidence, and more time for the court to hear the case and write an opinion. She estimates there is little chance the Supreme Court could decide the case sooner than a month from now. That would leave scant time for voter outreach and education should the court rule the law can move forward.
The problem is compounded by the fact that voter outreach organizations will have to do an about face if the Supreme Court upholds the law. The law has been suspended since early March, when Judge David Flanagan ordered the state Government Accountability Board to "cease immediately any effort to enforce or implement the photo identification requirements" before the trial began. Dara Lindenbaum, associate counsel to the Lawyers Committee for Civil Rights, notes that for months, her group and others have told people that they do not need to bring an ID to the polls. If the lower court's decision gets reversed, they'll have little time to inform voters of the change. Furthermore, poll workers will have to learn the ins and outs of the new requirements in short time; Lindenbaum said some voters who called her organization's hotline reported being improperly asked for ID.
"Having this decided this close to the election is a terrible idea," says Lindenbaum. "This really needs to be put on hold."
The reason Republicans want to have the law in place before November has everything to do with gaining a partisan advantage. Since the requirements disproportionately have an impact on nonwhite and low-income voters—those more likely to vote Democratic—GOP lawmakers hope it will give them a boost at the polls. With close elections, every percentage point matters, and Wisconsin is already a battleground state in a tight presidential race.
Strict voter-ID laws are already laden with political implications—most people know that on the whole, Republicans like the laws and Democrats don't. But their partisan effects will only grow if there's not enough time to educate voters. Such politics are yet another reason for the Supreme Court to refuse to hear the case, says Lieberman. Any decision at such a late stage would look politically motivated. "The issue is too politicized in a state like Wisconsin to be able to pretend that the political implications are not there," she says. "There's no way the court is going to be able to shake the sort of political stench that's going to be attached to it."