2014 WI 98
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP1652
COMPLETE TITLE: Milwaukee Branch of the NAACP, Voces de La
Frontera, Ricky
T. Lewis, Jennifer T. Platt, John J. Wolfe,
Carolyn
Anderson, Ndidi Brownlee, Anthony Fumbanks,
Johnnie M.
Garland, Danettea Lane, Mary McClintock, Alfonso
G.
Rodriguez, Joel Torres and Antonio K. Williams,
Plaintiffs-Respondents,
v.
Scott Walker, Thomas Barland, Gerald C. Nichol,
Michael
Brennan, Thomas Cane, David G. Deininger and
Timothy Vocke,
Defendants-Appellants,
Doris Janis, James Janis and Matthew Augustine,
Intervenors-Co-Appellants.
ON BYPASS FROM THE COURT OF APPEALS
OPINION FILED: July 31, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 24, 2014
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Daniel T. Flanagan III
JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, C.J., dissents. (Opinion filed.)
CROOKS, BRADLEY, JJ., dissent. (Opinion filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the defendants-appellants, the cause was argued by
Clayton P. Kawski, assistant attorney general, with whom on the
briefs (in the court of appeals) was Thomas C. Bellavia, Carrie
M. Benedon, and Maria S. Lazar, assistant attorneys general; and
J.B. Van Hollen, attorney general.
For the intervenors-co-appellants, the cause was argued by
Michael T. Morley, Washington D.C.; with whom on the briefs (in
the court of appeals) was Joseph Louis Olson and Michael Best &
Friedrich LLP, Milwaukee.
For the plaintiffs-respondents, the cause was argued by
Richard Saks, with whom on the brief (in the court of appeals)
was B. Michele Sumara, and Hawks Quindel, S.C., Milwaukee.
An amicus curiae brief (in the court of appeals) was filed
by Helen Marks Dicks and AARP Wisconsin, Madison; and Daniel B.
Kohrman and AARP Foundation Litigation, Washington, D.C., on
behalf of AARP.
An amicus curiae brief (in the court of appeals) was filed
by Jennifer A. Lohr, Madison, on behalf of Disability Rights
Wisconsin.
An amicus curiae brief (in the court of appeals) was filed
by Rebecca K. Mason and Rebecca Mason Law LLC, Racine, on behalf
of Institute for One Wisconsin, Inc.
An amicus curiae brief was filed by Kristin M.
Kerschensteiner, Madison, on behalf of Disability Rights
Wisconsin.
2
2014 WI 98
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP1652
(L.C. No. 2011CV5492)
STATE OF WISCONSIN : IN SUPREME COURT
Milwaukee Branch of the NAACP, Voces de la
Frontera, Ricky T. Lewis, Jennifer T. Platt,
John J. Wolfe, Carolyn Anderson, Ndidi
Brownlee, Anthony Fumbanks, Johnnie M. Garland,
Danettea Lane, Mary McClintock, Alfonso G.
Rodriguez, Joel Torres and Antonio K. Williams,
Plaintiffs-Respondents, FILED
v.
JUL 31, 2014
Scott Walker, Thomas Barland, Gerald C. Nichol,
Michael Brennan, Thomas Cane, David G. Diane M. Fremgen
Clerk of Supreme Court
Deininger and Timothy Vocke,
Defendants-Appellants,
Doris Janis, James Janis and Matthew Augustine,
Intervenors-Co-Appellants.
APPEAL from a circuit court judgment and permanent
injunction. Judgment reversed; permanent and temporary
injunctions vacated.
¶1 PATIENCE DRAKE ROGGENSACK, J. This appeal arises
from a judgment of the Dane County Circuit Court1 granting
1
The Honorable David T. Flanagan, III presided.
No. 2012AP1652
declaratory and injunctive relief based on the circuit court's
conclusion that 2011 Wis. Act 23, Wisconsin's voter photo
identification act, violates the Wisconsin Constitution.
¶2 Plaintiffs challenge Act 23 under Article III,
Section 1 of the Wisconsin Constitution.2 They contend that the
law is invalid because "it would severely burden a significant
number of qualified voters but [is] not reasonably necess[ary]
or designed to deter fraud or otherwise effect an important
government interest." Plaintiffs identify burdens of time,
inconvenience and costs associated with Act 23. Emphasizing the
difficulties that facial challenges to a statute bear,
defendants contend plaintiffs have not shown that Act 23 is
anything more than a reasonable, election-related regulation or
that the law's requirements amount to a denial of the right to
vote.
2
Article III, Section 1 provides:
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.
In their complaint, plaintiffs alleged that Act 23 also
violated Article I, Section 1 of the Wisconsin Constitution,
which guarantees equal protection and due process under the law
in a manner similar to the Fourteenth Amendment to the United
States Constitution. In their brief to us, plaintiffs refer
only to Article III, Section 1 of the Wisconsin Constitution.
However, they also contend that there is "a single standard to
apply to all challenges to restrictive voting laws, whether
brought as equal protection and due process challenges or under
the fundamental right to vote," and their arguments are in most
respects consistent with arguments made in due process and equal
protection challenges.
2
No. 2012AP1652
¶3 We conclude that plaintiffs have failed to prove Act
23 unconstitutional beyond a reasonable doubt. In League of
Women Voters of Wisconsin Education Network, Inc. v. Walker,
2014 WI 97, __ Wis. 2d __, __ N.W.2d __, also released today, we
concluded that requiring an elector to present Act 23-acceptable
photo identification in order to vote is not an additional
elector qualification. Id., ¶__. In the present case, we
conclude that the burdens of time and inconvenience associated
with obtaining Act 23-acceptable photo identification are not
undue burdens on the right to vote and do not render the law
invalid.
¶4 We conclude, as did the United Stated Supreme Court in
Crawford v. Marion County Election Board, 553 U.S. 181 (2008),
that "the inconvenience of making a trip to [a state motor
vehicle office], gathering the required documents, and posing
for a photograph surely does not qualify as a substantial burden
on the right to vote." Id. at 198. Furthermore, photo
identification is a condition of our times where more and more
personal interactions are being modernized to require proof of
identity with a specified type of photo identification. With
respect to these familiar burdens, which accompany many of our
everyday tasks, we conclude that Act 23 does not constitute an
undue burden on the right to vote. Payment to a government
agency, however, is another story.
¶5 Act 23 provides that the Department of Transportation
(DOT) "may not charge a fee to an applicant for the initial
issuance, renewal, or reinstatement of an identification card"
3
No. 2012AP1652
when "the applicant requests that the identification card be
provided without charge for purposes of voting." Wis. Stat.
§ 343.50(5)(a)3. (2011-12).3 On its face, then, the law
prohibits a government or its agencies from requiring any
elector, rich or poor, to pay a fee as a condition to obtaining
a DOT photo identification card to vote.4 See Harper v. Va. Bd.
of Elections, 383 U.S. 663, 666 (1966) ("payment of any fee [may
not be] an electoral standard"). The mandate of Act 23 is
consistent with the Wisconsin tradition of "jealously guard[ing]
and protect[ing]" the fundamental right to vote. See State ex
rel. Frederick v. Zimmerman, 254 Wis. 600, 613, 37 N.W.2d 473
(1949).
¶6 Plaintiffs produced evidence at trial that, in the
course of obtaining a DOT photo identification card for voting,
government agencies charged them fees to obtain supporting
documents for their applications. A common example is a birth
certificate, which is satisfactory proof of name, date of birth
and citizenship, and can cost $20 to obtain. E.g., Wis. Stat.
§ 69.22(1)(a) and (c). The requirement for such documents arose
under Wisconsin administrative rules that implement Act 23.
E.g., Wis. Admin. Code § Trans 102.15(3)(a).
3
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
4
We address only the financial burden incurred while
obtaining a DOT photo identification card for voting, see Wis.
Stat. § 343.50, because the other forms of Act 23-acceptable
identification are required for purposes other than voting,
e.g., driver licenses are required to lawfully drive a vehicle.
4
No. 2012AP1652
¶7 In order to resolve the conflict between Act 23 and
Wis. Admin. Code § Trans 102.15(3)(a), we interpret the
administrative rules and explain that the discretion of the
Division of Motor Vehicles (DMV) administrators must be
exercised in a constitutionally sufficient manner. Such
exercise of discretion requires the issuance of DOT photo
identification cards for voting without requiring documents for
which an elector must pay a fee to a government agency.5 See
Wis. Admin. Code § Trans 102.15(3)(b) and (c) (permitting
issuance of DOT photo identification cards for voting without
the documents described in § Trans 102.15(3)(a)). Our
conclusion employs a saving construction of § Trans
102.15(3)(b), conforms to Act 23's mandate and relieves a severe
burden on the right to vote that would otherwise exist. Because
with a saving construction of § Trans 102.15(3)(b) Act 23 does
not place a severe burden on the right to vote, we apply
rational basis scrutiny and conclude that Act 23 is reasonably
related to the State's significant interests.
5
Put simply, the right to vote cannot require payment to a
government or its agencies. This includes, of course, a "poll
tax," where a government directly requires and itself collects a
payment in order to vote. See Harper v. Va. Bd. of Elections,
383 U.S. 663 (1966). It also includes, however, fees that a
government agency other than a Wisconsin agency may charge for
documents necessary to obtain a DOT photo identification card
for voting. We cannot require other governments or their
agencies to refrain from charging such fees. We can, however,
explain that in order to constitutionally administer Act 23, the
DMV may not require documents in order to issue a DOT photo
identification card for voting that require payment of a fee to
any government agency.
5
No. 2012AP1652
¶8 We have been mindful that the task before us is not to
determine whether "Act 23 is the best way to preserve and
promote the right to vote." League of Women Voters, __ Wis. 2d
__, ¶55. 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).
¶9 Instead, we apply judicial restraint and
constitutional principles to the case at hand. Accordingly, we
reverse the judgment of the circuit court and vacate the
injunctions the circuit court issued.
I. BACKGROUND
A. Parties
¶10 Plaintiffs are the Milwaukee Branch of the NAACP,
Voces de la Frontera and numerous individuals residing either in
Milwaukee County or in Polk County. The NAACP, an incorporated
association with its business address in the City of Milwaukee,
contends that "Act 23 will force the Milwaukee Branch of the
NAACP to divert substantial resources away from traditional
voter registration and voter turnout efforts in order to educate
and assist voters in procuring Act 23-acceptable photo ID."
NAACP alleges that Act 23 unconstitutionally burdens Wisconsin
African-American residents' right to vote.
¶11 Voces is Wisconsin's preeminent immigration rights
organization. It expresses strong concerns about the burden Act
23 will place on the Latino community and its members as they
seek to exercise their franchise. Voces alleges that "Act 23
6
No. 2012AP1652
will force Voces to divert substantial resources away from
traditional voter registration and voter turnout efforts in
order to educate and assist voters in procuring Act 23-
acceptable photo ID."
B. Act 23
¶12 Act 23, with a few limited exceptions, requires
electors to identify themselves by presenting Act 23-acceptable
photo identification in order to vote. Stated generally, these
include: DOT issued driver's license; DOT issued photo
identification card; an unexpired DOT photo identification card
receipt; 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 citation or notice of driver's license suspension.
Wis. Stat. § 5.02(6m). Our review focuses on the second form of
acceptable identification, which we refer to as a DOT photo
identification card for voting. See Wis. Stat. § 343.50.
¶13 The DMV is the division of the DOT charged with
issuing DOT photo identification cards for voting spoken to in
Act 23. DOT administrative rules governing DMV's process for
issuing these cards require an applicant to document name, birth
date, identity, residence and citizenship. A social security
card and numerous other documents are proof of identity.
Wisconsin Admin. Code § Trans 102.15(4)(a)13. An applicant may
prove residence by items such as a utility bill, paycheck stub
7
No. 2012AP1652
or similar document that shows name and address. § Trans
102.15(4m).
¶14 A certified copy or an original birth certificate is
satisfactory proof of name, date of birth and citizenship. Wis.
Admin. Code § Trans 102.15(3)(a). Wisconsin Stat. § 69.21
describes how to obtain vital records, including certified
copies of birth certificates, for those applicants born in
Wisconsin. Wisconsin Stat. § 69.22(1)(a) and (c) permit a
government agency to assess a $20 fee for a certified copy of a
birth certificate.6 Other states presumably have their own
procedures, which may similarly allow a government agency to
charge a fee.
C. Procedural History
¶15 On March 6, 2012, the circuit court temporarily
enjoined the enforcement of Act 23. On April 16-19, April 30,
and May 4, 2012, the court conducted a bench trial. During the
trial, plaintiffs testified about the burdens of time and
inconvenience of going to DMV offices to obtain Act-23
acceptable identification. They also testified about the cost
of documents the DMV requires in order to issue a DOT photo
identification card for voting. These costs included payment to
6
Wisconsin Stat. § 69.22(6) provides that the "register of
deeds may provide free searches and free copies [of vital
records] to agencies in his or her county at the direction of
the county board." However, there is no mention in § 69.22 of
providing free certified copies of birth certificates or other
vital records that have been required to obtain DOT photo
identification cards to vote.
8
No. 2012AP1652
government agencies in various states, including Wisconsin, to
secure a certified copy of a birth certificate.
¶16 On July 17, 2012, the circuit court declared Act 23's
photo identification requirements unconstitutional, and granted
permanent injunctive relief. The circuit court reasoned that
"[t]he cost and the difficulty of obtaining documents necessary
to apply for a DMV Photo ID is a significant burden upon the
opportunity of Wisconsin citizens to vote." It further
concluded that these burdens "constitute a substantial
impairment of the right to vote" and are therefore "inconsistent
with, and in violation of Article III, Section 1 of the
Wisconsin Constitution."
¶17 The circuit court made extensive findings of fact.
For example, the court found that 80 percent of Wisconsin voters
had a DOT-issued driver's license, which is an Act 23-acceptable
identification, but that there were potentially thousands of
otherwise qualified voters who currently lack Act 23-acceptable
identification. The court made no finding of how many of those
otherwise qualified voters could not obtain Act 23-acceptable
identification. The court found that two electors, Ruthelle R.
Frank and Ricky T. Lewis, had not secured photo identification
cards due to problems in obtaining corrected birth certificates.
The court also found that obtaining a certified copy of a birth
certificate required payment to a government agency.
¶18 On November 20, 2013, after briefing was completed in
the court of appeals and pursuant to Wis. Stat. § 809.61 and
9
No. 2012AP1652
Wis. Const. Art. VII, § 3(3), we took jurisdiction of the appeal
on our own motion.7
II. DISCUSSION
¶19 Plaintiffs bring a facial challenge to Act 23 under
the Wisconsin Constitution, arguing that the time, inconvenience
and costs incurred in obtaining Act 23-acceptable photo
identification impermissibly burden their right to vote.
7
We note that the District Court for the Eastern District
of Wisconsin declared that Act 23 violated the federal
constitution in Frank v. Walker, Nos. 11CV1128 and 12CV185, 2014
WL 1775432 (E.D. Wis. Apr. 29, 2014). The court did so knowing
that the question of whether the voter identification law is
constitutional was before us. Id. at *42 n.1. Federal court
interpretation of a state statute prior to precedential state
court interpretation is most unusual because if a saving
construction by the state court is possible, then facial
invalidation of the statute is inappropriate. See, e.g.,
Harrison v. NAACP, 360 U.S. 167, 176 (1959) (concluding that "no
principle has found more consistent or clear expression than
that the federal courts should not adjudicate the
constitutionality of state enactments fairly open to
interpretation until the state courts have been afforded a
reasonable opportunity to pass upon them"). This is known as
"Pullman abstention." See R.R. Comm'n of Tex. v. Pullman Co.,
312 U.S. 496, 499-500 (1941).
Pullman abstention requires federal courts to abstain
from deciding an unclear area of state law that raises
constitutional issues because state court
clarification might serve to avoid a federal
constitutional ruling. . . . [F]ederal courts should
retain jurisdiction over the case, but stay the
proceedings so that state courts can rule on the state
law question. If the state court fails to resolve the
issue, however, the parties may then return to federal
court for a ruling on the constitutional issue.
Nivens v. Gilchrist, 444 F.3d 237, 245-46 (4th Cir. 2006)
(citation omitted).
10
No. 2012AP1652
Plaintiffs do not assert that the actual presentation of photo
identification violates their constitutional right to vote.
Therefore, their challenge is made on a different legal basis
than that of the plaintiffs in League of Women Voters.
¶20 Defendants maintain that Act 23 is constitutional.
They argue that the burdens imposed on electors to obtain a DOT
photo identification card are minimal when compared to the
State's significant interest in protecting the integrity and
reliability of the electoral process, in maintaining public
confidence in election results and in preventing voter
impersonation fraud.
A. Standard of Review
¶21 Plaintiffs bring a facial challenge to Act 23. A
facial challenge presents a question of law that we review
independently, but benefitting from the discussion of the
circuit court. Custodian of Records for the Legislative Tech.
Servs. Bureau v. State, 2004 WI 65, ¶6, 272 Wis. 2d 208, 680
N.W.2d 792; State v. Wood, 2010 WI 17, ¶15, 323 Wis. 2d 321, 780
N.W.2d 63. Because this appeal follows a trial to the circuit
court, we will uphold that court's historic findings of fact
unless they are clearly erroneous. State v. Arias, 2008 WI 84,
¶12, 311 Wis. 2d 358, 752 N.W.2d 748.
¶22 If 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. See Wagner v. Milwaukee Cnty. Election Comm'n, 2003
11
No. 2012AP1652
WI 103, ¶77, 263 Wis. 2d 709, 666 N.W.2d 816; see also Milwaukee
Cnty. v. Mary F.-R., 2013 WI 92, ¶35, 351 Wis. 2d 273, 839
N.W.2d 581. On the other hand, if we conclude that the burden
on the electors' right to vote is not severe, the legislation
will be presumed valid, and we will apply a rational basis level
of judicial scrutiny in determining whether the statute is
constitutional. Mary F.-R., 351 Wis. 2d 273, ¶35.
B. Challenge to Act 23 Burdens
1. Foundational principles
¶23 Without question, the right to vote is a fundamental
right and in many respects, it is protective of other rights.
Frederick, 254 Wis. at 613; Clingman v. Beaver, 544 U.S. 581,
599 (2005). As Justice Brennan explained so long ago, "the
right to vote is 'a fundamental political right, because [it is]
preservative of all [other] rights.'" Storer v. Brown, 415 U.S.
724, 756 (1974) (Brennan, J., dissenting) (quoting Yick Wo v.
Hopkins, 118 U.S. 356, 370 (1886)).
¶24 Foundational legal principles are our starting point
when fundamental rights are at issue. One such principle is
that generally, statutes are presumed to be 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
constitutional claim at issue. See League of Women Voters, 2014
WI 97, ¶16, __ Wis. 2d __. The presumption of constitutionality
is based on the court's respect for a co-equal branch of
government, and it is meant to promote due deference to
12
No. 2012AP1652
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. In addition,
given a choice of reasonable interpretations of a statute, we
must select the interpretation that results in
constitutionality. Am. Family Mut. Ins. Co. v. DOR, 222 Wis. 2d
650, 667, 586 N.W.2d 872 (1998).
¶25 One who challenges a statute on constitutional grounds
has a very heavy burden to overcome. Dowhower v. W. Bend Mut.
Ins. Co., 2000 WI 73, ¶10, 236 Wis. 2d 113, 613 N.W.2d 557. To
succeed, the challenger must prove that the statute is
unconstitutional beyond a reasonable doubt. State v. Cole, 2003
WI 112, ¶11, 264 Wis. 2d 520, 665 N.W.2 328. 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. Furthermore, courts
must resolve any doubt about the constitutionality of a statute
in favor of upholding the statute. Monroe Cnty. Dep't of Human
Servs. v. Kelli B., 2004 WI 48, ¶16, 271 Wis. 2d 51, 678 N.W.2d
831.
2. Voter rights
¶26 When courts approach constitutional challenges that
allege a burden on the right to vote, we focus first on how the
right is burdened. The analysis by which we do so is more
13
No. 2012AP1652
nuanced than that set out above. Decisions of the United States
Supreme Court, as well as our own decisions that relate to
voting, provide discussions helpful to determining how to
structure our examination of the plaintiffs' claims and the
circuit court's conclusions.
¶27 For example, in Anderson v. Celebrezze, 460 U.S. 780
(1983), the Supreme Court examined whether an Ohio statute's
requirement that an independent candidate for President file his
statement of candidacy and nominating petition more than five
months before party candidates were required to file, placed an
unconstitutional burden on voting and associational rights of
the candidate's supporters under the First and Fourteenth
Amendments. Id. at 786 n.7, 790-91.
¶28 The Supreme Court began by noting that "as a practical
matter, there must be a substantial regulation of elections if
they are to be fair and honest and if some sort of order, rather
than chaos, is to accompany the democratic processes." Id. at
788 (quoting Storer, 415 U.S. at 730). The Court then explained
that voter regulation laws "inevitably affect[]——at least to
some degree——the individual's right to vote and his right to
associate with others for political ends. Nevertheless, the
State's important regulatory interests are generally sufficient
to justify reasonable, nondiscriminatory restrictions." Id.
¶29 The Court said that there was no "litmus-paper test"
that can separate valid from invalid voting regulations. Id. at
789. Instead, a court must first consider "the character and
magnitude of the asserted injury to the rights protected by the
14
No. 2012AP1652
First and Fourteenth Amendments that the plaintiff seeks to
vindicate. It then must identify and evaluate the precise
interests put forward by the State as justifications for the
burden imposed by its rule." Id. The Court analyzed the facts
supporting the alleged burdens on supporters of independent
candidates and concluded that "[t]he inquiry is whether the
challenged restriction unfairly or unnecessarily burdens the
availability of political opportunity." Id. at 793 (citation
and internal quotation marks omitted).
¶30 The Court then took up the precise interests
identified by the State: "voter education, equal treatment for
partisan and independent candidates, and political stability,"
and examined the "legitimacy" of the stated interests and the
extent to which the early filing deadline served those
interests. Id. at 796. The Court concluded that given modern
communications, particularly those that occur in presidential
elections, it was not clear that the early filing requirement
aided voter education. Id. at 798. The Court also concluded
that there was "no merit in the State's claim that the early
filing" assisted in treating partisan and independent candidates
equally. Id. at 799.
¶31 Nowhere in the majority opinion did the Court describe
whether it was applying rational basis or strict scrutiny to the
Ohio statute. Rather, the Court seemed to balance the burden on
the individual's First and Fourteenth Amendment rights with the
specific interests the State sought to promote. However, it is
important to note that although the law directly limited how one
15
No. 2012AP1652
could become a nonpartisan candidate, it was the indirect
restriction on the voters' right to have a choice of candidates
that drove the Court's decision.
¶32 In Burdick v. Takushi, 504 U.S. 428 (1992), another
case related to burdens on the right to vote, the Supreme Court
continued to focus its discussion on the rights being burdened.
There, Hawaii's lack of a provision to permit write-in voting
was challenged as an impermissible burden on First and
Fourteenth Amendment protections. Because only one candidate
filed nomination papers for a state legislative seat, the
petitioner wanted to mount a write-in campaign and was told that
Hawaii made no provision for write-in candidates. Id. at 430.
¶33 As the Court began its discussion, it explained that
"Petitioner proceeds from the erroneous assumption that a law
that imposes any burden upon the right to vote must be subject
to strict scrutiny. Our cases do not so hold." Id. at 432.
The Court instructed that only "severe restrictions" by the
State would require a compelling state interest and that
"reasonable, nondiscriminatory" regulations were permissible.
Id. at 434.
¶34 The Court concluded that the burden imposed by
Hawaii's lack of a provision for write-in voting was "slight";
therefore, the State "need not establish a compelling interest
to tip the constitutional scales in its direction." Id. at 439.
The Court then applied rational basis scrutiny and concluded
that "[t]he State has a legitimate interest . . . and the write-
16
No. 2012AP1652
in voting ban is a reasonable way of accomplishing this goal."
Id. at 440.
¶35 In Crawford, the Supreme Court decided a challenge to
Indiana's statutory requirement that an elector identify himself
by presenting a government-issued photo identification in order
to vote. Crawford, 553 U.S. at 185. The complainants, who
represented among others, "groups of elderly, disabled, poor,
and minority voters," alleged that the law "substantially
burdens the right to vote in violation of the Fourteenth
Amendment" and that it will "arbitrarily disfranchise qualified
voters who do not possess the required identification and will
place an unjustified burden on those who cannot readily obtain
such identification." Id. at 187.
¶36 In upholding the constitutionality of the Indiana
statute, six members of the Court applied the Burdick/Anderson
analysis, although the lead opinion, authored by Justice
Stevens, and the concurrence, authored by Justice Scalia,
applied the analysis somewhat differently. In the first step of
that analysis, six justices examined whether requiring a
government issued photo identification burdens the right to
vote. Id. at 189-90; id. at 204 (Scalia, J., concurring). The
lead opinion concluded that the requirement did not impose
"excessively burdensome requirements on any class of voters" and
that "the statute's broad application to all Indiana voters
. . . imposes only a limited burden on voters' rights." Id. at
202-03 (citations and internal quotation marks omitted). The
concurrence evaluated and upheld a single burden that was
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No. 2012AP1652
uniformly imposed on all voters, without regard to
classifications of voters and took issue with the lead opinion's
consideration of "class of voters." Id. at 205 (Scalia, J.,
concurring).
¶37 Given that the burdens imposed were not "severe," both
the lead opinion and the concurrence applied rational basis
scrutiny in determining that the law was reasonably related to
the State's legitimate interests and therefore, upheld the photo
identification law. Id. at 204; id. at 209 (Scalia, J.
concurring).
¶38 In Wagner, a Wisconsin case affecting voting, we
applied the Burdick/Anderson burden analysis to a constitutional
challenge to an enforced delay in becoming a candidate. Wagner,
263 Wis. 2d 709, ¶¶1, 76. Judge Wagner claimed a deprivation of
"liberty and equal protection of the law" under both the
Wisconsin Constitution and the United States Constitution
brought about by the enforced delay of his opportunity to be a
candidate for a non-judicial office during the judicial term for
which he had been elected.8 Id., ¶76.
¶39 We began by first considering "the character and
magnitude of the asserted injury to the rights protected." Id.,
8
We note that Judge Wagner's due process and equal
protection claims under the Wisconsin Constitution related to
Article I, Section 1 of the Wisconsin Constitution and that
plaintiffs' challenge to Act 23 is based on Article III, Section
1 of the Wisconsin Constitution. However, the method of
analysis of burdens employed in Wagner v. Milwaukee Cnty.
Election Comm'n, 2003 WI 103, 263 Wis. 2d 709, 666 N.W.2d 816,
is appropriate here too.
18
No. 2012AP1652
¶77 (quoting Anderson, 460 U.S. at 789). We then considered the
"legitimacy and strength" of the State's specifically identified
interests, that of maintaining the integrity and independence of
the judiciary. Id., ¶83. In so doing, we imported the United
States Supreme Court's method of focusing first on the burden
placed on a right related to voting and from that determination,
deciding what level of judicial scrutiny would be required.
After concluding that the burden on the right to become a
candidate was not severe, we applied rational basis scrutiny to
the challenged limitation and concluded that the State's
significant interest supported the delay. Id., ¶¶84-85.
C. Burdens of Act 23
¶40 We structure our discussion of plaintiffs' challenges
to Act 23 consistent with the method of analysis employed in
Burdick and Anderson, as we did in Wagner, where the challenge
related to when a candidate could be submitted for voters'
consideration and how the protections of both the Wisconsin
Constitution and the United States Constitution were implicated.
Id., ¶76. Accordingly, we first consider whether the burden on
19
No. 2012AP1652
the right to vote is severe.9 We begin by examining whether the
time and inconvenience of going to DMV offices to secure DOT
photo identification cards for voting is a severe burden. We
then consider whether payments for transportation to DMV offices
and for documents that DMV has required before it would issue
the requested photo identification cards are severe burdens on
the exercise of the franchise. Finally, we consider the precise
interests identified by the State for enacting Act 23.
9
In Frank, the district court repeatedly cited to Anderson
v. Celebrezze, 460 U.S. 780 (1983) and Burdick v. Takushi, 504
U.S. 428 (1992), but it did not follow the legal standard those
cases provide. Frank, Nos. 11CV1128 and 12CV185, 2014 WL
1775432, at *5. The district court did not employ the
Anderson/Burdick analytic framework because the court did not
first determine whether the Wisconsin act severely burdened
exercise of the franchise. Id. at *6. Rather, the court merely
concluded that the act placed an "unjustified" burden on the
right to vote. Id. at *18. It arrived at its conclusion by
first deciding that Walker had failed to prove the significance
of the State's interests. Id. at *6-11. Because the State's
interests were not significant, the district court concluded
that the burden was "unjustified." Id. at *18.
The district court's reasoning stands the Anderson/Burdick
analysis on its head. Anderson and Burdick require that the
statutory challenger first prove whether the burden on the
franchise is severe because it is this initial determination
about the severity of the burden that drives the level of
scrutiny courts then apply to the State's asserted interests.
Burdick, 504 U.S. at 434, 440; see also Crawford v. Marion Cnty.
Election Bd., 553 U.S. 181, 190 (2008); id. at 205 (Scalia, J.,
concurring). It is only when a statute imposes a severe burden
on the right to vote that the State's asserted interests are
subject to strict scrutiny. Burdick, 504 U.S. at 434.
Accordingly, Frank provides no guidance as we address
plaintiffs' claims.
20
No. 2012AP1652
1. Time/Inconvenience
¶41 The record provides extensive testimony about trips to
DMV offices by individuals who sought to obtain Act 23-
acceptable photo identification for voting. Some of these trips
were at quite a distance and many trips were repeats because
either the line to obtain a photo identification card was too
long or the applicant did not have the documents that DMV
required in order to issue a photo identification card. Some
witnesses testified that they had spent in excess of six hours
in their efforts.
¶42 No one who testified thought the process of obtaining
a DOT photo identification card was easy. However, all were
successful, except two applicants, Ruthelle R. Frank and Ricky
T. Lewis. They were unable to obtain photo identification cards
because of problems with their birth certificates that may
require court action to correct.
¶43 Few cases have parsed the constitutional significance
of time and inconvenience burdens on the right to vote.
However, Crawford did, to some extent, when it considered the
burden that "life's vagaries" can impose and noted that:
[a] photo identification requirement imposes some
burdens on voters that other methods of identification
do not share. For example, a voter may lose his photo
identification, may have his wallet stolen on the way
to the polls, or may not resemble the photo in the
identification because he recently grew a beard.
Crawford, 553 U.S. at 197. Crawford also went on to explain
that "the inconvenience of making a trip to [a state motor
vehicle office], gathering the required documents, and posing
21
No. 2012AP1652
for a photograph surely does not qualify as a substantial burden
on the right to vote, or even represent a significant increase
over the usual burdens of voting." Id. at 198. We agree with
that assessment.
¶44 Moreover, we note that 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. For example, years ago, driver
licenses did not require a photograph of the licensee, now
Wisconsin driver licenses do. Photo identification is now
required to purchase a firearm, to board a commercially operated
airline flight, to enter some federal buildings and to obtain
food stamps. Photo identification is often required to obtain a
book from a public library, to cash a check, to purchase
alcoholic beverages, to be admitted to many places of employment
and to be seen by one's own physician for a personal
appointment. Elector identification is certainly as important
an identification as any of the above examples.
¶45 The federal government also has directed states to
require photo identification in circumstances where the federal
government was not involved in the past. For example, the REAL
ID Act of 2005, Pub.L. 109-13, sets forth requirements for state
driver licenses wherein underlying documents are required to
obtain or renew a driver's license in a state that has
implemented the REAL ID Act, as Wisconsin has.10 See, e.g., Wis.
10
The REAL ID Act also applies to those ID cards for
boarding commercially operated airline flights, entering federal
22
No. 2012AP1652
Stat. § 343.165. As inconvenient as it may be, photo
identification is here to stay. It is a fact of life to which
we all have to adjust.
¶46 We do not minimize the difficulties that some who
applied for Act 23-acceptable photo identification have
encountered in the past or will encounter in the future.
However, the time and inconvenience incurred are not severe
burdens on the right to vote. In many cases, these familiar
burdens are no more of an imposition than is the exercise of the
franchise itself, which can involve waiting in long lines and
traveling distances in order to personally cast a ballot on
election day.11
¶47 In addition, we note that the NAACP and Voces are two
of Wisconsin's most conscientious and capable organizations in
regard to encouraging and facilitating voting. They will know
what documentation DMV requires to issue DOT photo
identification cards for voting and will work to assure that
members of the African-American and Latino communities will be
well prepared for their trips to DMV. NAACP and Voces have seen
the power that the voting booth can give to their communities
buildings and nuclear power plants. It does not apply to DOT
photo identification cards issued for use in voting.
11
While our focus is on DOT issued photo identification
cards, we note that some of those who testified had obtained a
Wisconsin driver's license. Any payments to Wisconsin
government agencies in order to obtain a driver's license are
not relevant to our discussion because that license confirms the
privilege to drive; it is not obtained solely for elector
identification.
23
No. 2012AP1652
and will continue to work to assure that all eligible voters
have the opportunity to exercise their franchise.
¶48 The Government Accountability Board (GAB) also is
poised to assist in educating the electors about how to obtain a
DOT-issued photo identification card. The GAB received
legislative approval for a $1.9 million appropriation to
implement Act 23 and to educate Wisconsin voters on where and
how to obtain Act 23-acceptable photo identification. Although
some of these efforts have been put on hold due to circuit court
injunctions, the GAB remains a significant resource for
information and education.
2. Costs
¶49 We now turn to the other burden that the plaintiffs
identified and the circuit court found, which are the costs
incurred in obtaining a DOT-issued photo identification card for
voting. Some costs involved payments for transportation to DMV
offices or time taken from work. They are not costs paid to a
government agency nor are they regulated by Act 23. In some
respects, they are similar to those costs incurred in casting an
in-person ballot. They are not a severe burden on the right to
vote.
¶50 Plaintiffs also provided evidence of payments to
government agencies to obtain documents required by DMV to issue
DOT photo identification cards to vote. Plaintiffs do not
employ the term "poll tax" in regard to those payments and we do
not define them as poll taxes. Plaintiffs assert, however, that
those payments are an unconstitutional burden on the right to
24
No. 2012AP1652
vote. Because other jurisdictions have characterized payments
to government agencies to obtain documents necessary to voting
as a de facto poll tax and because there are compelling reasons
to assure that Wisconsin does not impose an unconstitutional fee
as a condition of voting, we interpret Act 23 with both
characterizations in mind.
¶51 Act 23 provides that DOT "may not charge a fee to an
applicant for the initial issuance, renewal, or reinstatement of
an identification card" when "the applicant requests that the
identification card be provided without charge for purposes of
voting." Wis. Stat. § 343.50(5)(a)3. This provision prohibits
DOT from causing any elector, rich or poor, to pay a fee as a
condition to voting.
¶52 However, plaintiffs incurred costs due to payments to
government agencies for documents that DMV required in order to
issue DOT photo identification cards for voting. These costs
were not paid to DOT or its division, DMV; they were paid to
other government agencies. One example of such a cost is the
payment for certified copies of birth certificates that DMV has
required as proof of name, date of birth and citizenship.12 See
Wis. Stat. § 69.22.
¶53 Payments required to be made to a Virginia government
agency in order to exercise the right to vote were held
unconstitutional in Harper, where a $1.50 poll tax was examined.
12
Copies of other vital records, Wis. Stat. § 69.21, may
also have been required. For convenience of discussion, we
refer only to birth certificates.
25
No. 2012AP1652
The Supreme Court concluded that "payment of any fee" to a
Virginia government entity could not be required as a condition
of voting. Harper, 383 U.S. at 666. Although the Court talked
about the uneven impact such a fee may have on those with
limited financial resources, the Court struck down the fee for
all voters. Id.
¶54 More recently, state supreme courts have examined
claims that fees paid to state agencies to obtain documents
required as part of the application process for state photo
identification cards violated electors' constitutional rights.
For example, in In re Request for Advisory Opinion Regarding
Constitutionality of 2005 PA 71, 740 N.W.2d 444 (Mich. 2007),
the Michigan Supreme Court considered a facial challenge to a
Michigan statute that required potential voters to identify
themselves with a government-issued photo identification card.
Id. at 451. As part of its discussion, the court examined
whether ancillary charges for documents necessary to obtaining
the required photo identification card operated as a de facto
poll tax that violated the Michigan Constitution or United
States Constitution. Id. at 463-66.
¶55 In concluding that the Michigan statute was not a
de facto poll tax, the court explained:
[T]he statute does not condition the right to vote on
the payment of any fee. A voter who does not
otherwise possess adequate photo identification is not
required to incur the costs of obtaining photo
identification as a condition of voting. Instead, a
voter may simply sign an affidavit in the presence of
an election inspector. Nothing in the statute
26
No. 2012AP1652
contemplates that a voter is required to incur any
costs in the execution of an affidavit.
Id. at 464-65. Therefore, the Michigan statute differed from
the Wisconsin law because Act 23 requires elector identification
by presenting a government-issued photo identification and does
not permit an elector to vote after signing an affidavit of
identity at the polls.13
¶56 In City of Memphis v. Hargett, 414 S.W.3d 88 (Tenn.
2013), the Tennessee Supreme Court considered a Tennessee
statute that required, with limited exceptions, electors to
provide photographic proof of identity. Id. at 92. Under the
Tennessee law, an elector who attempted to vote in person, but
was unable to produce valid evidence of identification and did
not fall within the exceptions to the law, may cast a
provisional ballot, which would be counted if the voter
presented valid proof of identity within two days after the
election. Id. at 93.
13
The affidavit alternative available to Michigan electors
provides:
If the elector does not have an official state
identification card, operator's or chauffeur's license
as required in this subsection, or other generally
recognized picture identification card, the individual
shall sign an affidavit to that effect before an
election inspector and be allowed to vote as otherwise
provided in this act.
In re Request for Advisory Opinion Regarding Constitutionality
of 2005 PA 71, 740 N.W.2d 444, 451 (Mich. 2007) (quoting Mich.
Comp. Laws § 168.523).
27
No. 2012AP1652
¶57 Two voters presented non-compliant photo
identifications issued by the City of Memphis and cast
provisional ballots when their identifications were not
accepted. Id. at 93-94. Those voters and the City then
challenged the statute, bringing both facial and as-applied
constitutional challenges. Id. at 94-95. In upholding the
constitutionality of the Tennessee statute against the
challenges, part of which contended that the law amounted to a
de facto poll tax, the court pointed out that:
[T]his state's Act contains an exception for any in-
person voter who "is indigent and unable to obtain
proof of identification without payment of a fee[.]"
By its plain language, this provision exempts from the
photo ID requirement any voter unable to pay the fees
needed to obtain valid evidence of identification,
including any fee associated with the documentation
necessary to obtain a "free" photo ID card pursuant to
section 55-50-336(g)(1). Because of this provision,
we cannot endorse the Plaintiffs' characterization of
the photo ID requirement as a poll tax.
Id. at 106 (emphasis added) (citation omitted). There,
indigency operated as an exception to payment of direct and
ancillary fees while preserving the right to vote.
¶58 In Crawford, the United States Supreme Court also
mentioned ancillary fees. It noted that, "Indiana, like most
States, charges a fee for obtaining a copy of one's birth
certificate. This fee varies by county and is currently between
$3 and $12." Crawford, 553 U.S. at 198 n.17. However, the
Court did not consider whether an ancillary payment to an
Indiana government agency in order to obtain a birth certificate
was a de facto poll tax because "the record does not provide
28
No. 2012AP1652
even a rough estimate of how many indigent voters lack copies of
their birth certificates." Id. at 202 n.20. Additionally,
indigent electors could avoid paying that fee by casting a
provisional ballot and then executing an affidavit before the
circuit court clerk within ten days of the election. Id. at
186.
¶59 The voter identification laws of Michigan, Tennessee
and Indiana all included a provision by which a voter could cast
a ballot without paying money to a government agency. Act 23
similarly provides that DOT "may not charge a fee to an
applicant for the initial issuance, renewal, or reinstatement of
an identification card" when "the applicant requests that the
identification card be provided without charge for purposes of
voting." Wis. Stat. § 343.50(5)(a)3.
¶60 Requiring payment to a government agency to obtain a
DOT photo identification card for voting puts the administrative
regulation on a collision course with Act 23's directive that
DOT "may not charge a fee." It also would be a severe burden on
the right to vote.
¶61 Why is this burden severe? The usual payment of $20
for a certified copy of a birth certificate is modest and does
not approach the sizeable costs parsed in other cases that bear
on voting. See Lubin v. Panish, 415 U.S. 709, 710, 719 (1974)
(concluding that $701.60 filing fee was unconstitutional); see
also Bullock v. Carter, 405 U.S. 134, 145, 149 (1972)
(explaining that a primary filing fee that at times reached
$8,900 was constitutionally impermissible).
29
No. 2012AP1652
¶62 The modest fees for documents necessary to prove
identity would be a severe burden on the constitutional right to
vote not because they would be difficult for some to pay.
Rather, they would be a severe burden because the State of
Wisconsin may not enact a law that requires any elector, rich or
poor, to pay a fee of any amount to a government agency as a
precondition to the elector's exercising his or her
constitutional right to vote. See Harper, 383 U.S. at 666
(concluding that the "payment of any fee [may not be] an
electoral standard").14
¶63 Given our conclusion that it would be contrary to Act
23 and a severe burden on the right to vote if an elector were
obligated to pay a fee to a government agency in order to obtain
documents required for a DOT photo identification card to vote,
we now consider whether a saving construction that is consistent
with the statutory mandate and the Wisconsin constitution is
possible.15 If a saving construction of the administrative rule
14
Although Harper was based on the United States
Constitution, Wisconsin's protection of the right to vote is
even stronger because in addition to the equal protection and
due process protections of Article I, Section 1 of the Wisconsin
Constitution, the franchise for Wisconsin voters is expressly
declared in Article III, Section 1 of the Wisconsin
Constitution.
15
We have broad subject matter jurisdiction as a "court of
last resort on all judicial questions under the constitution and
laws of the state; a court of first resort on all judicial
questions affecting the sovereignty of the state, its franchises
or prerogatives, or the liberties of its people." Attorney Gen.
v. Chicago & Nw. Ry. Co., 35 Wis. 425, 518 (1874).
30
No. 2012AP1652
preserves the constitutionality of the statute, we will employ
it. See McConnell v. Fed. Election Comm'n, 540 U.S. 93, 180
(2003) (concluding that where a saving construction is "fairly
possible," the court will adopt it) (quoting Crowell v. Benson,
285 U.S. 22, 62 (1932)).
¶64 We do so in order to avoid a constitutional conflict.
See, e.g., Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S.
497, 503 (2001) (avoiding an interpretation of Fed. R. Civ. Pro.
41(b) that "would arguably violate the jurisdictional limitation
of the Rules Enabling Act"). Stated otherwise, when we
determine that there is a statutory flaw that may have
constitutional significance, we ascertain whether the government
rule or statute can be interpreted in a manner that will avoid a
constitutional conflict. See State ex rel. Strykowski v.
Wilkie, 81 Wis. 2d 491, 506, 261 N.W.2d 434 (1978). As the
Supreme Court has explained, it is best to "limit the solution
to the problem" rather than enjoining the application of an
entire statute due to a limited flaw. Ayotte v. Planned
Parenthood of N. New England, 546 U.S. 320, 328-29 (2006).
It is true that courts may lack subject matter jurisdiction
to review administrative agency decisions if the petition for
review is not timely filed. Schiller v. DILHR, 103 Wis. 2d 353,
355, 309 N.W.2d 5 (Ct. App. 1981) (concluding that circuit court
lacked subject matter jurisdiction to review LIRC decision
because petition was not timely filed); Kegonsa Joint Sanitary
Dist. v. City of Stoughton, 87 Wis. 2d 131, 150, 274 N.W.2d 598
(1979) (same). However, this line of cases has nothing to do
with the issues presented in this appeal.
31
No. 2012AP1652
¶65 Here, the potential to impose a severe burden on the
right to vote is not stated in Act 23 itself. Rather, the flaw
is in the administrative rules that DMV has applied to
applicants for DOT photo identification cards to vote.
Accordingly, we do not initially weigh the burden identified,
i.e., the fees paid to government agencies to obtain documents
that DMV has required prior to issuing DOT photo identification
cards for voting, because a saving construction of the
administrative rule must be considered first.
3. Saving construction
¶66 Wisconsin statutes and administrative regulations that
address the same subject matter must be construed in a way that
harmonizes them. Cnty. of Milwaukee v. Superior of Wisconsin,
Inc., 2000 WI App 75, ¶21, 234 Wis. 2d 218, 610 N.W.2d 484.
Here, Wis. Admin. Code § Trans 102.15(3)(a) requires documents
for "Proof of Name and Date of Birth," that other statutes, such
as Wis. Stat. § 69.22, require payment to provide. This creates
a conflict with Act 23's directive to provide DOT photo
identification cards for voting without charge.
¶67 However, DMV administrators have discretion under Wis.
Admin. Code § Trans 102.15(3)(b) to excuse the failure to
provide documents referenced in § Trans 102.15(3)(a) when DOT
photo identification cards for voting are requested. Section
Trans 102.15(3)(b) and (c) provide:
(b) If a person is unable to provide
documentation under [§ Trans 102.15(3)](a), and the
documents are unavailable to the person, the person
may make a written petition to the administrator of
32
No. 2012AP1652
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:
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.
¶68 Because the exercise of a DMV administrator's
discretion has constitutional ramifications when a DOT photo
identification card for voting is requested, we note that we are
obliged to choose the interpretation of Wis. Admin. Code § Trans
102.15(3)(b) that does not conflict with the Wisconsin
Constitution. See Am. Family, 222 Wis. 2d at 667.
¶69 In order to harmonize the directive of Wis. Stat.
§ 343.50(5)(a)3., which says no fees; statutes such as Wis.
Stat. § 69.22, which impose payment of fees; and Wis. Admin.
Code § Trans 102.15(3)(a), which requires certain documents for
which electors may be required to pay fees to government
agencies, we construe § Trans 102.15(3)(b). We do so to
preserve the constitutionality of § 343.50(5), as follows: One
who petitions an administrator pursuant to § Trans 102.15(3)(b)
for an exception is constitutionally "unable" to provide those
33
No. 2012AP1652
documents and they are constitutionally "unavailable" to the
petitioner within our interpretation of § Trans 102.13(3)(b), so
long as petitioner does not have the documents and would be
required to pay a government agency to obtain them.16
¶70 Stated otherwise, to invoke an administrator's
discretion in the issuance of a DOT photo identification card to
vote, an elector: (1) makes a written petition to a DMV
administrator as directed by Wis. Admin. Code § Trans
102.15(3)(b) set forth above; (2) asserts he or she is "unable"
to provide documents required by § Trans 102.15(3)(a) without
paying a fee to a government agency to obtain them; (3) asserts
those documents are "unavailable" without the payment of such a
fee; and (4) asks for an exception to the provision of § Trans
102.15(3)(a) documents whereby proof of name and date of birth
that have been provided are accepted. § Trans 102.15(3)(b) and
(c). Upon receipt of a petition for an exception, the
administrator, or his or her designee, shall exercise his or her
discretion in a constitutionally sufficient manner.17
¶71 We further conclude that filing a Wis. Admin. Code
§ Trans 102.15(3)(b) petition for an exception with a DMV
16
Our ruling in this regard applies to the provision of an
elector's initial, renewal and reinstatement of a DOT photo
identification card. It does not apply to replacements for DOT
photo identification cards that have been lost or misplaced.
17
We do not address the straw man of personal jurisdiction
because it is not the DMV administrator's rights that are at
issue in this lawsuit. It is the electors' constitutional right
to vote.
34
No. 2012AP1652
administrator, as set forth above, is not a severe burden on the
right to vote. Accordingly, because the burdens of time,
inconvenience and costs upon electors' right to vote are not
severe under our interpretation of § Trans 102.15, we apply a
rational basis level of scrutiny in determining whether Act 23
is constitutional. Mary F.-R., 351 Wis. 2d 273, ¶35; Wagner,
263 Wis. 2d 709, ¶84. As the Supreme Court has explained, it is
erroneous to assume that a law that regulates voting must be
subject to strict scrutiny. Burdick, 504 U.S. at 432. Strict
scrutiny applies only when a statute imposes a severe burden on
the exercise of the franchise. Id. at 434.
D. State Interests
¶72 Defendants have identified state interests of
protecting the integrity and reliability of the electoral
process, maintaining public confidence in election results and
preventing voter fraud as significant and compelling interests
that underlie Act 23.
¶73 It should be beyond question that the State has a
significant and compelling interest in protecting the integrity
and reliability of the electoral process, as well as promoting
the public's confidence in elections. Crawford, 553 U.S. at
196. As we learn of elections that are currently occurring
around the world in troubled nations, the integrity and
35
No. 2012AP1652
reliability of the electoral process and the public's confidence
in elections are always exceedingly important.18
¶74 The circuit court found there was no evidence of
"recent" voter impersonation fraud in Wisconsin. However, that
finding cannot overcome the State's interest in preventing voter
fraud.19 As the Supreme Court has held, "[v]oter fraud drives
honest citizens out of the democratic process and breeds
distrust of our government. Voters who fear their legitimate
votes will be outweighed by fraudulent ones will feel
disenfranchised." Purcell v. Gonzalez, 549 U.S. 1, 4 (2006).
¶75 We agree that the identified interests are significant
and compelling. Id. (explaining that the "State indisputably
has a compelling interest in preserving the integrity of its
election process" (quoting Eu v. San Francisco Cnty. Democratic
Cent. Comm., 489 U.S. 214, 231 (1989) and that "[c]onfidence in
the integrity of our electoral process is essential to the
functioning of our participatory democracy"). However, because
the burden on exercise of the franchise is not severe, the
defendants need show only a legitimate state interest and that
18
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.
19
We note that Wisconsin was one of the states identified
in Crawford, where there is a record of voter fraud having
occurred. Crawford, 553 U.S. at 195 n.12.
36
No. 2012AP1652
requiring elector identification by the use of a government-
issued photo identification is a reasonable means of serving
that interest. See Wagner, 263 Wis. 2d 709, ¶¶77-78; Crawford,
553 U.S. at 196-97; 553 U.S. at 208 (Scalia, J., concurring);
Burdick, 504 U.S. at 440.
¶76 We conclude that the use of Act 23-acceptable photo
identification is a reasonable means of furthering the stated
interests. It may help to assure the public that the electoral
process is followed and that results of elections held in
Wisconsin validly represent the will of the electors. In
addition, those who would attempt to defraud the electors
through misrepresentations to election officials will find that
task more difficult.
III. CONCLUSION
¶77 We conclude that the burdens of time and inconvenience
associated with obtaining Act 23-acceptable photo identification
are not severe burdens on the right to vote and do not
invalidate the law. The burdens of time and inconvenience of
obtaining Act 23-acceptable photo identification are in many
respects no more of an imposition than is casting an in-person
ballot on election day. Furthermore, photo identification is a
condition of our times where more and more personal interactions
are being modernized to require proof of identity with a
specified type of photo identification before proceeding.
¶78 However, to require payments to government agencies
for documents necessary to obtain DOT photo identification cards
for voting would severely burden the right to vote because it
37
No. 2012AP1652
would condition that right on payment to a government agency.
Act 23 explicitly prohibits payment to a government agency to
obtain a DOT photo identification card for voting.
¶79 The payments at issue arise under Wisconsin
administrative rules that implement Act 23. Therefore, we
construed those rules and explained how the discretion of the
DMV administrator must be exercised in a constitutionally
sufficient manner. Such exercise of discretion requires the
issuance of DOT photo identification cards for voting without
requiring documents for which a fee continues to be charged by a
government agency. In so doing, we employ a saving construction
of Wis. Admin. Code § Trans 102.15(3)(b) and relieve the severe
burden that would otherwise exist due to costs levied by
government agencies.
¶80 Because Act 23 does not place a severe burden on the
exercise of the franchise, we apply rational basis scrutiny and
conclude that Act 23 is reasonably related to the State's
significant interests. Accordingly, we reverse the judgment of
the circuit court and vacate all injunctions the court issued.
By the Court-The judgment of the circuit court is reversed
and the permanent and temporary injunctions are vacated.
38
No. 2012AP1652.ssa
¶81 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). I have
written in dissent in League of Women Voters v. Walker, 2014 WI
97, ___ Wis. 2d ___, ___ N.W.2d ___. That dissent also applies
to the instant case. Indeed I incorporate my entire dissent in
League of Women Voters in this dissent. The instant case, like
League of Women Voters, is a facial challenge to Act 23,
although it presents a richer factual record than does League of
Women Voters.
¶82 Like the majority opinion1 and Justice Crooks'
dissent,2 I agree that Act 23 creates a severe burden on the
exercise of the right to vote. I join the reasoning set forth
in Justice Crooks' dissent concerning the substantial burden
placed on the right of qualified voters to vote; the failure of
the State to advance a compelling state interest; and the
failure of the majority opinion in NAACP to remedy the burdens
it identifies.3 In particular, I agree with Justice Crooks'
dissent that the record in the instant case demonstrates that a
substantial number of constitutionally qualified registered
1
Majority op., ¶7 (noting that the statute creates a
"severe burden on the right to vote").
2
See Justice Crooks' dissent, ¶92.
3
See also Frank v. Walker, No. 11-CV-01128, 2014 WL 1775432
(E.D. Wis. Apr. 29, 2014). Although the instant case provides a
slightly different record and the challenge in the instant case
is raised under the Wisconsin Constitution, not the United
States Constitution, the Frank court's reasoning that Act 23
imposes burdens on the right to vote and that the State failed
to meet the requirements of the test laid out in Burdick v.
Takushi, 504 U.S. 428 (1992), and Anderson v. Celebrezze, 460
U.S. 780 (1983), is instructive.
1
No. 2012AP1652.ssa
voters in Wisconsin do not possess the required government-
issued identification4 and that the costs of obtaining such
identification constitute a severe burden.5
¶83 I write separately, however, because as I wrote in my
dissent in League of Women Voters, the NAACP opinion is confused
and confusing regarding the standard of review.6 Moreover,
Wisconsin case law sets forth a stringent standard of review for
voting rights cases applicable to both League of Women Voters
and the instant case under the Wisconsin Constitution. The
League of Women Voters case and the instant case ignore
Wisconsin's jurisprudence regarding review of legislation
regulating voting rights.
¶84 Nevertheless, whether I apply the Burdick/Anderson
standard of review or any variation thereof or the standard in
Wisconsin's case law regarding review of legislation regulating
voting rights, I conclude that Act 23 is unconstitutional. The
State "may not burden the right to vote merely by invoking
abstract interests, be they legitimate, or even compelling, but
must make a particular, factual showing that threats to its
interests outweigh the particular impediments it has imposed.
The State has made no such justification here, and as to some
aspects of its law, it has hardly even tried."7
4
See Justice Crooks' dissent, ¶¶114-118.
5
See Justice Crooks' dissent, ¶¶119-134.
6
See League of Women Voters v. Walker, 2014 WI 97, ¶¶112-
136 (Abrahamson, C.J., dissenting).
7
Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 209
(2008) (Souter, J., dissenting) (citation omitted).
2
No. 2012AP1652.ssa
¶85 Like Justice Crooks' dissent, I would hold that
invalidating Act 23 is the only appropriate remedy. This court
should not rule on administrative regulations not before us or
rewrite a statute. For the foregoing reasons, I dissent.
3
No. 2012AP1652.npc
¶86 N. PATRICK CROOKS, J. (dissenting). The question of
whether Act 23 violates the Wisconsin Constitution is at the
intersection of profound democratic principles: the right of
qualified Wisconsin citizens to vote, as explicitly guaranteed
by the Wisconsin Constitution,1 and the undisputed principle that
the state has a legitimate interest in safeguarding the
integrity of elections through regulations.2 Voter
identification provisions are one way the state may choose to
protect the legitimacy of elections. Such provisions may be
constitutionally imposed even if they severely burden a person's
right to vote as long as they are narrowly tailored to advance a
compelling state interest. However, Act 23's photo
identification requirements severely burden eligible voters
without being narrowly tailored to achieve the state's
compelling interests of reducing voter fraud and increasing
1
The Wisconsin Constitution guarantees the right to vote to
qualified citizens. It 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." Wis. Const.
art. III, § 1.
2
Dells v. Kennedy and Others, 49 Wis. 555, 557, 6 N.W. 246
(1880) ("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."); State
ex rel. Wood v. Baker (Baker), 38 Wis. 71, 86 (1875) ("Statutes
cannot impair the right [to vote], though they may regulate its
exercise. Every statute regulating it must be consistent with
the constitutionally qualified voter's right of suffrage when he
claims his right at an election. Then statutes may require
proof of the right, consistent with the right itself.").
1
No. 2012AP1652.npc
voter confidence in the outcomes of elections.3 For that reason,
Act 23 is an unconstitutional election regulation, and I
therefore respectfully dissent.
¶87 The United States Supreme Court's decision in Crawford
v. Marion County Election Board,4 which upheld Indiana's voter
identification statute, does not persuade me that Act 23 is
constitutional. This is because there are substantial
differences between this case and the Crawford case. First, the
record in the Crawford case was not nearly as developed as the
record in this case. This factor certainly influenced the
Supreme Court's decision.5 Second, Indiana's voter
identification statute is not as stringent as Act 23. Most
importantly, the Indiana law provides for an affidavit exception
that allows certain individuals to vote without photo
identification.6 In upholding Indiana's voter identification
law, Justice Stevens' lead opinion commented that the severity
of the burden imposed by the photo identification requirement
3
The balancing test under which I find Act 23
unconstitutional is addressed in Anderson v. Celebrezze, 460
U.S. 780, 789 (1983), and further discussed by Burdick v.
Takushi, 504 U.S. 428, 434 (1992).
4
Crawford v. Marion Cnty. Election Bd., 553 U.S. 181
(2008).
5
Id. at 200 ("But on the basis of the evidence in the
record it is not possible to quantify either the magnitude of
the burden on this narrow class of voters . . . . [T]he record
does not provide us with the number of registered voters without
photo identification.").
6
Id. at 186 (describing the affidavit procedure available
to indigent voters as well as individuals with a religious
objection to being photographed).
2
No. 2012AP1652.npc
"is, of course, mitigated by the fact that, if eligible, voters
without photo identification may cast provisional ballots that
will ultimately be counted."7 Finally, while Act 23 applies to
both in-person and absentee voting, Indiana's photo
identification requirements do not apply to absentee voting.
Therefore, the Crawford case is neither controlling nor
persuasive.
¶88 The majority opinion claims to approach the
plaintiffs' constitutional challenge to Act 23 as a purely
facial challenge.8 In doing so it purports to evaluate Act 23
using the framework outlined by the United States Supreme Court
in Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v.
Takushi, 504 U.S. 428 (1992). However, it ultimately turns to a
different legal theory to conclude that Act 23 imposes an
unconstitutional de facto poll tax9 on voters, which imposes a
severe burden.10 The de facto poll tax to which it refers is not
the cost of the identification card itself, which is available
free of charge, but the cost of obtaining a birth certificate,
which a voter is required to have to obtain an identification
7
Id. at 199.
8
Majority op., ¶¶19, 21.
9
Although the majority sometimes asserts that it does not
define the payments at issue as poll taxes, it acknowledges that
it interprets Act 23 with this "characterization[] in mind."
Id., ¶50. Regardless of what the majority calls the costs at
issue, it is clear that the majority relies on poll tax
jurisprudence.
10
Id., ¶¶62-63 (citing Harper v. Va. Bd. of Elections, 383
U.S. 663, 666 (1966)).
3
No. 2012AP1652.npc
card for voting.11 After concluding that the costs of obtaining
a birth certificate impose an unconstitutional de facto poll tax
that severely burdens eligible Wisconsin voters, the majority
then crafts a remedy which allows individuals to obtain
certified copies of their birth certificates free of charge.12
The majority concludes that its remedy lessens the burden
imposed by Act 23 on eligible Wisconsin voters to such a degree
that Act 23 easily passes constitutional muster.13
¶89 I cannot agree with the majority opinion's
characterization and analysis of the plaintiffs' challenge. The
majority incorrectly characterizes the challenge as a purely
facial challenge. It fails to apply the Anderson/Burdick
framework correctly. It improperly relies on poll tax case law.
Even if I were to assume that poll tax analysis applied, the
majority's attempt to alleviate the de facto poll tax for
eligible Wisconsin voters results in an unworkable solution that
fails to cure the unconstitutionality of Act 23. Specifically,
the majority opinion's remedy appears to leave in place the
discretion of DMV administrators to issue or refuse to issue Act
23-compliant identification where a fee is required for
supporting documents. If the majority opinion leaves in place
11
See id., ¶63. The majority states, "Copies of other
vital records, Wis. Stat. § 69.21, may also have been required.
For convenience of discussion, we refer only to birth
certificates." See majority op., ¶52 n.12. I employ the same
term.
12
See id., ¶¶7 n.5, 70.
13
See id., ¶¶79-80.
4
No. 2012AP1652.npc
the discretion of DMV administrators to issue exceptions to
those burdened by the cost of obtaining underlying
documentation,14 then it fails to guarantee constitutional
protections against poll taxes. On the other hand, if the
majority opinion requires DMV administrators to issue photo
identification cards to individuals who are burdened by the cost
of obtaining required underlying documentation,15 it is directing
a non-party to take specific action, which it has no authority
to do. In sum, the remedy imposed by the majority, under either
approach, is flawed. It impinges on the legislature's role by
interpreting administrative code provisions that are not part of
this challenge and by directing an administrative agency that is
not a party to this case. I urge the legislature to take action
to cure the unconstitutionality of Act 23. Without such action,
the remedy crafted by the majority leaves Act 23
unconstitutional.
¶90 The appropriate framework to analyze the plaintiffs'
challenge to Act 23 is the modified facial challenge approach,
which the United States Supreme Court has applied16 in comparable
14
See id., ¶70.
15
See id., ¶7, ¶7 n.5.
16
See Citizens United v. Fed. Election Comm'n, 558 U.S.
310, 333-35 (2010) (applying a modified facial challenge
approach and concluding, in part, that independent corporate
political expenditures cannot be limited under the First
Amendment); see also Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 449 n.6 (2008) (applying a
modified facial challenge approach and holding that Washington
State's primary system did not violate political parties'
associational rights under the First Amendment).
5
No. 2012AP1652.npc
cases. Under a modified facial challenge, a "law may be
overturned as impermissibly overbroad because a 'substantial
number' of its applications are unconstitutional, 'judged in
relation to the statute's plainly legitimate sweep.'"17 This
differs from a purely facial challenge, which necessarily fails
if any application of the challenged law is constitutional.
¶91 A modified facial challenge is appropriate in this
type of case because neither a purely facial challenge nor an
as-applied challenge is practical in these circumstances. A
purely facial challenge requires that a party prove that a law
is unconstitutional under all circumstances.18 Based on the
burden that it imposes, a purely facial challenge to Act 23
fails without question because the photo identification
requirements of the law could be constitutionally applied to any
Wisconsin voter who already possesses the appropriate
identification. In contrast to a purely facial challenge, an
as-applied challenge looks at whether a law violated the
constitutional rights of a particular person under the facts
presented.19 Here, the record developed before the circuit court
established that a substantial number of eligible Wisconsin
voters lack Act 23-compliant identification and are severely
burdened by its requirements. A requirement that each burdened
17
Wash. State Grange, 552 U.S. at 449 n.6 (emphasis added)
(quoting Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)).
18
State v. Wood, 2010 WI 17, ¶13, 323 Wis. 2d 321, 780
N.W.2d 63.
19
Id.
6
No. 2012AP1652.npc
individual bring an as-applied challenge would perpetuate
uncertainty about the constitutionality of Act 23, as well as
result in an extreme volume of litigation that would take a
significant amount of time and resources to conclude. Since the
purely facial and as-applied frameworks cannot appropriately
address the constitutionality of Act 23, I would apply a
modified facial approach as utilized by the United States
Supreme Court in analogous situations discussed in more detail
herein.
¶92 Under a proper application of the Anderson/Burdick
framework, a modified facial challenge to Act 23's
constitutionality succeeds in establishing a violation of the
Wisconsin Constitution. The only proper remedy is invalidation
of the law. This is because Act 23 imposes severe burdens on a
substantial number of eligible Wisconsin voters who do not
currently possess an Act 23-compliant form of identification,
and that burden cannot be remedied by this court. First, and
most importantly, even though the identification card itself can
be obtained at no cost, there are costs associated with
acquiring the underlying documents required to obtain an
identification card. Those costs impose a severe burden on
certain eligible Wisconsin voters, both those born in Wisconsin
and those born in other states and other countries. Second, for
certain voters the time and effort required to obtain Act 23-
compliant identification adds to the severity of the burden.
¶93 The majority recognizes that a severe cost burden
exists, but instead of considering such burden in a
7
No. 2012AP1652.npc
straightforward manner under the well-established
Anderson/Burdick framework, it applies poll tax analysis and
crafts a remedy that purports to alleviate the burden imposed by
Act 23. The majority concludes that the costs associated with
obtaining a free voter identification card are the functional
equivalent of an unconstitutional poll tax. No party or amicus
brief advanced this argument. Instead all recognized the
Anderson/Burdick test as the applicable framework. That test
requires that a heightened level of scrutiny apply to any voting
regulation that imposes a severe burden.20 I conclude that Act
23 imposes such a burden on a substantial number of eligible
Wisconsin voters. This means Act 23 must be narrowly tailored
to achieve compelling governmental interests if it is to be
upheld. I conclude that Act 23 does not meet this standard.
¶94 In contrast to my approach, the majority opinion makes
a radical departure from the well-established Anderson/Burdick
framework. This is because instead of balancing the benefits
and burdens of Act 23 as the Anderson/Burdick framework
instructs and reaching the conclusion compelled by the record,
the majority intervenes to lessen the severity of the burden by
crafting a remedy that allows for individuals to obtain a
certified copy of their birth certificate, a document necessary
to obtain a free voter identification card, free of charge.
Furthermore, the majority opinion's remedy reworks the framework
in which Act 23 operates, which is not the court's role. It is
20
Burdick, 504 U.S. at 434 (citing Anderson, 460 U.S. at
788).
8
No. 2012AP1652.npc
the legislature and not this court that must craft a
constitutional voter identification law considering the
framework in which that law operates, policy objectives, and
budgetary constraints. For these reasons, I respectfully
dissent.
I. THE MODIFIED FACIAL CHALLENGE APPROACH
¶95 The majority opinion asserts that it is addressing a
purely facial challenge to Act 23.21 The majority's analysis,
however, reveals that it is not actually doing so. We have
consistently said that a purely facial challenge to a law may
succeed only when the challenger proves that the law cannot be
constitutionally applied under any circumstance.22 Because Act
23 imposes a minimal burden on eligible Wisconsin voters who
already possess an approved form of identification, the law
would survive a purely facial challenge on that basis alone.
However, the challenge before this court is not purely facial.
Instead, it is better understood and analyzed as a modified
facial challenge.
¶96 In certain contexts, the United States Supreme Court
has recognized the existence of a modified approach to facial
challenges.23 "Our cases recognize a second type of facial
21
Majority op., ¶¶19, 21.
22
Wood, 323 Wis. 2d 321, ¶13. United States v. Salerno,
481 U.S. 739 (1987), first established this approach to the
evaluation of a purely facial constitutional challenge.
23
See Wash. State Grange, 552 U.S. at 449 n.6 (discussing
First Amendment overbreadth doctrine); see also Sabri v. United
States, 541 U.S. 600, 609-10 (2004) (listing cases in which the
United States Supreme court applied a modified or relaxed facial
analysis).
9
No. 2012AP1652.npc
challenge in the First Amendment context under which a law may
be overturned as impermissibly overbroad because a 'substantial
number' of its applications are unconstitutional, 'judged in
relation to the statute's plainly legitimate sweep.'"24
¶97 The United States Supreme Court used this type of
analysis in Citizens United v. Federal Election Commission, 558
U.S. 310, 333-35 (2010). There, the Court reasoned, "In the
exercise of its judicial responsibility, it is necessary then
for the Court to consider the facial validity of § 441b. Any
other course of decision would prolong the substantial,
nationwide chilling effect caused by § 441b's prohibitions on
corporate expenditures."25 Essential to the Court’s reasoning
was that requiring plaintiffs to bring as-applied challenges to
the law would cause uncertainty and prolonged litigation, which
would not be appropriate considering the importance of speech in
the context of elections.26
¶98 A discussion of purely facial constitutional
challenges and as-applied constitutional challenges demonstrates
why the modified facial approach is appropriate in this case. A
purely facial challenge requires that the party challenging the
law prove, beyond a reasonable doubt, that the law is
unconstitutional under all circumstances.27 "If a challenger
24
Wash. State Grange, 552 U.S. at 449 n.6 (quoting
Broadrick, 413 U.S. at 615).
25
Citizens United, 558 U.S. at 333.
26
Id. at 333-35.
27
Wood, 323 Wis. 2d 321, ¶¶13, 15.
10
No. 2012AP1652.npc
succeeds in a facial attack on a law, the law is void 'from its
beginning to the end.'"28 Furthermore, in considering a purely
facial constitutional challenge, we presume that the law is
constitutional.29
¶99 An as-applied challenge, in contrast, determines
whether a law violated the constitutional rights of a particular
person under the facts presented.30 "Under such a challenge, the
challenger must show that his or her constitutional rights were
actually violated. If a challenger successfully shows that such
a violation occurred, the operation of the law is void as to the
party asserting the claim."31 Therefore, in an as-applied
challenge, a court should not presume that the statute has been
applied in a constitutional manner.32
28
Id., ¶13 (quoting State ex rel. Comm'rs of Pub. Lands v.
Anderson, 56 Wis. 2d 666, 672, 203 N.W.2d 84 (1973)).
29
See id., ¶15.
30
Id., ¶13.
31
Id.
32
This statement is supported by Tammy W-G. v. Jacob T.,
2011 WI 30, ¶49, 333 Wis. 2d 273, 797 N.W.2d 854, in which we
stated, "[T]he analysis that is employed for an as-applied
challenge contains no presumption in regard to whether the
statute was applied in a constitutionally sufficient manner."
Similarly, we have explained that "[w]hile we presume a statute
is constitutional, we do not presume that the State applies
statutes in a constitutional manner." Soc'y Ins. v. Labor &
Indus. Review Comm'n, 2010 WI 68, ¶27, 326 Wis. 2d 444, 786
N.W.2d 385.
11
No. 2012AP1652.npc
¶100 The majority opinion's claim that it is treating this
challenge as a purely facial challenge upsets the well-drawn
distinction between purely facial and as-applied challenges.
Treating this as a purely facial challenge is not appropriate
because the plaintiffs do not actually allege that Act 23 is
unconstitutional under all applications. They acknowledge that
the photo identification requirements of the law could be
constitutionally applied to any eligible Wisconsin voter who
already possesses Act 23-compliant identification.33 Instead of
making a purely facial challenge, the plaintiffs argue that Act
23 presents a severe burden on a substantial number of eligible
voters.
¶101 Similarly, because the challenge here alleges a
potential burden to hundreds of thousands of eligible voters,34
In the context of the modified facial challenge approach,
some scholars have suggested the presumption of
constitutionality that applies to purely facial challenges has
no application to the First Amendment overbreadth doctrine.
Michael C. Dorf, Facial Challenges to State and Federal
Statutes, 46 Stan. L. Rev. 235, 261-283 (1994) ("Thus, when the
court considers the overbreadth challenge, applying the Salerno
presumption entails judging the litigant by an unconstitutional
rule of law——unconstitutional because, at least for the time
being, it chills the behavior of third parties.").
33
The circuit court found that "[t]he majority of Wisconsin
voters, some 80%, possess a driver's license that meets the
Photo ID requirements of Act 23." This means that Act 23
operates constitutionally in regard to the approximately 80% of
Wisconsin voters who face little or no burden in complying with
the law's identification requirements.
34
The circuit court found that approximately 333,276
eligible voters in Wisconsin lack identification that would
comply with Act 23.
12
No. 2012AP1652.npc
it is inappropriate to require that each affected individual
bring an as-applied challenge. While the exact number of
individuals without identification who would be substantially
burdened or unable to obtain identification is not established,
requiring an as-applied approach would mean that each burdened
individual or group of individuals would have to challenge Act
23 separately. This would lead to an unnecessarily large volume
of litigation that would take a substantial amount of time and
resources to conclude. Requiring that individuals bring as-
applied challenges would perpetuate uncertainty about the
application of the law to different groups and could strip
individuals with unresolved but meritorious cases of the right
to vote at election time.
¶102 This court should look to the United States Supreme
Court's modified facial challenge approach, which stems from the
First Amendment overbreadth doctrine because it fits equally
well in the election regulation context. As I have previously
discussed, this approach makes sense because of the problems
associated with treating the plaintiffs' challenge to Act 23 as
either a purely facial challenge or as an as-applied challenge.
¶103 In addition to these practical reasons, a modified
facial challenge approach to laws that allegedly burden the
right to vote is justified because of the importance of the
right as well as the Anderson/Burdick framework in which voting
regulations are analyzed.35 When a voting regulation is
35
See Dorf, supra note 32, at 264-68 (discussing the
potential application of the overbreadth doctrine to all
fundamental rights).
13
No. 2012AP1652.npc
challenged as unconstitutional because of an alleged chilling
effect on a large number of eligible voters, the challengers
should not be required to prove that the law is invalid in all
circumstances. This is due to the significance of the right,
which requires a court to fully consider the challenge and the
record before it to carefully and fully analyze the voting
restriction under the Anderson/Burdick framework, which,
depending on the severity of the burden imposed, may require the
use of a heightened level of scrutiny. In other words, a purely
facial challenge approach is unnecessarily rigid and simply does
not recognize the fundamental importance of the right to vote.
Therefore, under a modified facial challenge approach, I
evaluate whether a substantial number of Act 23's applications
are unconstitutional "judged in relation to the statute's
plainly legitimate sweep."36
II. PROPER APPLICATION OF THE ANDERSON/BURDICK BALANCING TEST
¶104 I agree with the majority opinion37 that the
plaintiffs' challenge to Act 23 must be evaluated under the
balancing test set forth in Anderson38 and Burdick.39 Under the
Anderson/Burdick test, a court addressing a constitutional
challenge to a voting regulation weighs the benefits and the
burdens of the particular regulation at issue.40 Not all voting
36
See Wash. State Grange, 552 U.S. at 449 n.6.
37
Majority op., ¶¶27-34, 40.
38
Anderson, 460 U.S. 780.
39
Burdick, 504 U.S. 428.
40
Anderson, 460 U.S. at 789.
14
No. 2012AP1652.npc
regulations are subject to strict scrutiny.41 Instead, the level
of judicial scrutiny that a court applies to a challenged voting
regulation depends on the severity of the burden imposed by that
regulation.42 Therefore, a court must first consider the burden
imposed by the voting regulation under review. A voting
regulation that imposes a severe burden is constitutional only
if it is narrowly tailored to achieve a compelling state
interest.43 On the other hand, a voting regulation that does not
impose a severe burden on voters will be found constitutional as
long as it is reasonably related to a governmental interest.44
¶105 Although the majority opinion cites to the
Anderson/Burdick balancing test,45 it does not engage in a
straightforward application of the framework. Rather, instead
of directly discussing the cost burden imposed by Act 23, as
evidenced by the record, it unnecessarily considers whether the
fees associated with obtaining a certified copy of a Wisconsin
41
See Burdick, 504 U.S. at 433.
42
Id. at 434.
43
Id.
44
See id. (citing Anderson, 460 U.S. at 788). The
Anderson/Burdick test, which I apply, is consistent with this
court's precedent. Prior Wisconsin Supreme Court cases that
have evaluated election regulations have not identified the
level of scrutiny that this court should apply, nor do these
cases directly engage in a balancing test. More typically, this
court has considered whether the election regulation under
review was reasonable. See also State ex rel. Van Alstine v.
Frear, 142 Wis. 320, 337, 125 N.W. 961 (1910) (citing State ex
rel. Runge v. Anderson, 100 Wis. 523, 533-34, 76 N.W. 482
(1898)); Baker, 38 Wis. at 87.
45
Majority op., ¶¶27-34, 40.
15
No. 2012AP1652.npc
birth certificate, a requirement to obtain a free identification
card for voting purposes, function as an unconstitutional poll
tax.
¶106 The discussion of poll tax case law is misplaced for
two reasons. First, the plaintiffs did not challenge Act 23 as
an unconstitutional de facto poll tax; therefore, this issue was
not briefed or argued by the parties. Second, and more
importantly, the plaintiffs' challenge, brought under the
Anderson/Burdick framework, requires this court to carefully
evaluate the cost burden that Act 23 places on eligible voters.
The Anderson/Burdick framework, rather than poll tax analysis,
is appropriate because the photo identification requirements at
issue are related to election qualifications.46 In contrast,
poll tax analysis is appropriate when the cost imposed on voters
is not related to voter qualifications.47 By evaluating the cost
burden through the framework of poll tax cases, the majority
opinion conflates two separate types of analysis and fails to
consider sufficiently the cost burdens, which are well-
established by the record, under the Anderson/Burdick balancing
test. Although the majority concludes that the costs associated
with obtaining Act 23-compliant identification impose an
unconstitutional de facto poll tax that results in a severe
burden, it improperly crafts a remedy, which purports to
46
See League of Women Voters v. Walker, 2014 WI 97, ¶¶4-5,
__ Wis. 2d __, __ N.W.2d __.
47
See Crawford, 553 U.S. at 189; see also Harper, 383 U.S.
at 670.
16
No. 2012AP1652.npc
alleviate the burden by eliminating the cost of certified
Wisconsin birth certificates under some circumstances. This
remedy allows the majority to conclude that the burdens of Act
23 are minimal. By applying poll tax analysis and by crafting
this remedy in the midst of the Anderson/Burdick framework, the
majority has unnecessarily muddled an otherwise straightforward
and tested analytical framework.
¶107 Even if I were to assume that poll tax analysis
applied to this case, I am not persuaded that the majority
opinion's remedy cures the unconstitutionality of Act 23.
Anyone who thinks Act 23's constitutional problem is that it
creates a de facto poll tax should want to guarantee that such a
de facto poll tax is not imposed on any eligible voter. The
majority concludes that Act 23 imposes a de facto poll tax;
however, there is no support in the law for the proposition that
a court may leave to the discretion of a governmental agency
whether to approve an exception to a poll tax. If the majority
leaves in place the discretion of DMV administrators to issue or
refuse to issue Act 23-compliant identification where a fee is
required for supporting documents,48 it fails to guarantee
constitutional protections against poll taxes. Such an approach
also leaves the potential for future litigation brought by
individuals who were denied the exception. This leaves the
constitutionality of Act 23 unsettled unless the legislature
acts to repair this defect.
48
See majority op., ¶¶67, 70.
17
No. 2012AP1652.npc
¶108 If, however, the majority opinion is requiring DMV
administrators to issue photo identification to individuals who
cannot afford to obtain underlying documentation,49 it is
directing a non-party to take specific action, which it cannot
do.
¶109 Therefore, rather than relying on the majority
opinion's poll tax analysis, I would apply the well-established
Anderson/Burdick framework, which requires the conclusion that
Act 23 places a severe burden on a substantial number of
eligible Wisconsin voters. The severity of the burden dictates
that this court may uphold Act 23 only if it is narrowly
tailored to achieve a compelling governmental interest. The
record demonstrates that Act 23 is not narrowly tailored to the
state's goals of reducing voter fraud or increasing the public's
confidence in elections because the Act is unlikely to further
either of these goals in any meaningful way. Therefore, Act 23
is unconstitutional.
A. THE BURDENS IMPOSED BY ACT 23 ARE SEVERE
¶110 The plaintiffs allege that the costs, time, and effort
associated with obtaining an Act 23-compliant form of
identification impose a significant burden on a substantial
number of eligible Wisconsin voters. I agree with the circuit
court that these burdens are severe.
49
See majority op., ¶7, ¶7 n.5.
18
No. 2012AP1652.npc
1. A SUBSTANTIAL NUMBER OF ELIGIBLE WISCONSIN VOTERS LACK ACT
23-COMPLIANT IDENTIFICATION
¶111 The circuit court found that "[a] reasonable, reliable
and accurate estimate of the number of people eligible to vote
in Wisconsin who do not have a form of identification that would
permit them to vote under Act 23 is 333,276."50 Before reaching
this conclusion, the circuit court heard the expert testimony of
Professor Kenneth R. Mayer, the plantiffs' expert, as well as
the testimony of Professor M.V. Hood and Dr. Peter Morrison, who
both served as expert witnesses for the state.
¶112 The circuit court found Professor Mayer and Professor
Hood to be qualified experts in terms of establishing the number
of eligible Wisconsin voters who lack Act 23-compliant
identification. In contrast, the circuit court did not find Dr.
Morrison qualified to give expert testimony on the number of
eligible voters in Wisconsin lacking Act 23-compliant
identification. Although the circuit court considered the
testimony of both Professor Mayer and Professor Hood, the
circuit court ultimately relied on Professor Mayer's expert
testimony.
50
The circuit court opinion carefully explained how it came
to this conclusion and described the data upon which it relied.
In reviewing this data, it appears that a mathematical error
occurred and that the number of estimated eligible Wisconsin
voters who lack Act 23-compliant identification should be
333,296.
19
No. 2012AP1652.npc
¶113 As the majority opinion correctly states, this court
will uphold a circuit court's findings of fact unless they are
clearly erroneous.51 The circuit court's reliance on Professor
Mayer's estimate that 333,276 eligible Wisconsin voters lack Act
23-compliant identification was not clearly erroneous.
¶114 Professor Mayer utilized the "exact-match" method to
estimate the number of registered voters who lacked Act 23-
compliant identification. Under this method, Professor Mayer
matched the records of registered voters appearing in the
Statewide Voter Registration System (SVRS), maintained by the
Government Accountability Board (GAB), with records of
individuals listed as having either a Wisconsin driver's license
or a Wisconsin identification card in a Department of
Transportation (DOT) database. The comparison of the SVRS
database with the DOT database allowed Professor Mayer to form
an initial estimate of the total number of registered voters who
lack two of the primary forms of Act 23-compliant
identification. Professor Mayer also estimated the number of
non-registered, but otherwise eligible, voters who lacked proper
identification and the number of individuals who possessed
student, tribal, or military identification that would allow
them to vote under Act 23.
51
Majority op., ¶21 (citing State v. Arias, 2008 WI 84,
¶12, 311 Wis. 2d 358, 752 N.W.2d 748).
20
No. 2012AP1652.npc
¶115 Professor Mayer's estimates controlled for individuals
who appeared in the DOT database but who had either moved out of
state or who had passed away. For example, he utilized census
data from the American Community Survey (ACS) to estimate that
277,000 individuals listed as having a Wisconsin driver's
license in DMV records had moved out of state. Professor Mayer
also relied on a sample of obituaries and the rate at which
licenses and identification cards expire each year to determine
that approximately 114,690 individuals listed in the DOT
database as having photo identification are actually deceased.
Finally, Professor Mayer removed duplicate listings of
individuals who appeared in the DOT database as having both a
driver's license and a state identification card.
¶116 Professor Mayer presented clear and concise testimony
that relayed his expert report findings to the circuit court.
These findings pointed out a variety of imperfections with the
DOT database upon which Professor Mayer and Professor Hood
relied. In contrast to Professor Mayer, Professor Hood was
unable to provide an estimate of the number of eligible
Wisconsin voters who lack Act 23-compliant identification. In
reference to relying on Professor Mayer instead of Professor
Hood, the circuit court logically explained that Professor Hood
did not "adequately explain or justify [his] conclusion that the
Wisconsin data available, when evaluated using the 'exact
21
No. 2012AP1652.npc
[m]atch' method was not sufficiently reliable to estimate the
number of eligible voters who lack the required Photo ID."
¶117 Furthermore, the circuit court was not clearly
erroneous in finding that the state's other expert witness, Dr.
Morrison, did not "possess sufficient training or experience to
prepare or to offer reliable expert testimony as to election
procedures generally nor, specifically, the proportion of
persons eligible to vote in Wisconsin who lack a Photo ID
required by Act 23." The circuit court identified several
problems with Dr. Morrison's testimony. These included Dr.
Morrison's failure to consider a "significant source of
relevant, reliable information, the SRVS listing of eligible
Wisconsin voters" and his failure to "recognize or take into
account the limitations of the WisDOT data."
¶118 Although the circuit court found that an estimated
333,276 eligible Wisconsin voters do not possess Act 23-
compliant identification, this finding alone does not indicate
the severity of the burden that individuals would face in
obtaining a compliant form of identification. However, the
record provides ample evidence of the severity of the burden Act
23 imposes.
2. THE COST INCURRED BY ELIGIBLE WISCONSIN VOTERS OBTAINING
ACT 23-COMPLIANT IDENTIFICATION IMPOSES A SERVERE BURDEN
¶119 The most significant burden that Act 23 imposes on
individuals lacking Act 23-compliant identification is the cost
22
No. 2012AP1652.npc
burden that results from the administrative framework in which
Act 23 operates. As the majority opinion explains, typically,
an individual must produce a certified copy of his or her birth
certificate, among other documents, to receive a no-cost
identification card for voting purposes.52 The legislature has
dictated, under the current administrative framework, that a
certified copy of a Wisconsin birth certificate costs $20.53 The
majority concludes that the $20 cost of a certified Wisconsin
birth certificate functions as an unconstitutional fee or poll
tax that imposes a severe burden.54 However, this conclusion
unnecessarily muddles poll tax analysis with the
Anderson/Burdick framework. In addition, the majority opinion
does not fully address the cost burden imposed on eligible
Wisconsin voters who need to obtain a birth certificate from
another state to obtain photo identification for voting
purposes. Finally, the majority opinion does not consider the
severity of the burden that Act 23 places on naturalized
52
See majority op., ¶52 n.12.
53
Id., ¶¶14, 61; Wis. Stat. § 69.22(1)(a),(c).
54
Majority op., ¶62.
23
No. 2012AP1652.npc
citizens who are eligible to vote in Wisconsin.55 In sum, the
majority's remedy does not relieve the cost burden placed on
eligible Wisconsin voters born in other states or countries.
¶120 The circuit court found that "[t]he cost and the
difficulty of obtaining documents necessary to apply for a DMV
Photo ID is a substantial burden which falls most heavily upon
low income individuals."56 The circuit court's finding is
supported by the record; therefore, it is not clearly erroneous.
¶121 The circuit court specifically noted the cost burden
that Act 23 imposed upon several different individuals in its
decision and order. For example, the experiences of Ruthelle R.
Frank and Ricky T. Lewis indicate that they would be forced to
incur significant costs to correct errors in their birth
certificates to obtain Act 23-compliant photo identification.
At the time Lewis sought photo identification, his affidavit
indicated that his sole income is his fixed veteran's pension of
55
One form of Act 23-compliant identification includes a
certificate of naturalization issued "not earlier than 2 years
before the date of an election at which it is presented." Wis.
Stat. § 5.02(6m)(b). This means that a certificate of
naturalization that is more than two years old cannot be used as
a compliant form of identification at the polls under Act 23.
Therefore, it appears that a naturalized citizen may be required
to obtain another form of Act 23-compliant identification, which
in some cases could require foreign-born individuals to obtain a
foreign certificate of birth.
56
The amicus curiae briefs submitted by AARP and Disability
Rights Wisconsin provide convincing arguments that Act 23
disproportionally burdens Wisconsin residents over the age of 65
and Wisconsin residents with disabilities, respectively.
24
No. 2012AP1652.npc
$986 per month and that he has no savings.57 He stated that his
attempts to obtain identification have resulted in what he
considered to be "substantial costs." Additionally, the circuit
court noted that Sequoia Cole's only income is $600 per month in
Social Security benefits, and in her deposition she stated that
the $20 fee for a birth certificate was a burden.
¶122 The record also contains numerous affidavits and
depositions from individuals regarding the cost burden that Act
23 imposes. The majority of these individuals have low incomes.
For example, Ndidi Brownlee's deposition indicates that she has
no savings and that she lives month to month on her income.
Johnnie Garland's affidavit states that she relies on Social
Security benefits that total $678 per month to cover her
essential expenses and that she was required to pay $28 to
obtain her birth certificate from another state. Kristen Green
was unemployed at the time she obtained photo identification,
and her deposition indicates that she could not afford the extra
bus fare she needed to travel to a DMV office. Danettea Lane's
affidavit indicates that she had to pay $20 to obtain her birth
certificate and that she supports herself and her four children
on $608 per month. In addition, Willie Watson and Eldridge King
both indicated in their depositions that they lived on fixed
amounts of $683 per month and $1000 per month, respectively.
57
The circuit court later stated that Lewis' monthly income
was $1021, which it based on his deposition.
25
No. 2012AP1652.npc
¶123 In Frank v. Walker, the United States District Court
for the Eastern District of Wisconsin recently considered a
challenge to Act 23 brought under the Fourteenth Amendment and
the Federal Voting Rights Act.58 While I do not rely on the
district court's analysis in Frank, the similarities between the
Frank case and this case make many of the district court's
findings quite persuasive. In Frank, the district court made
persuasive findings in regard to the cost burden that Act 23
imposes.59 Like the circuit court in this case, the district
court considered the testimony of individuals lacking Act 23-
compliant photo identification to conclude that the cost burden
imposed by the Act is severe.60 The district court concluded,
[I]n light of the evidence presented at trial, it is
also clear that for many voters, especially those who
are low income, the burdens associated with obtaining
an ID will be anything but minor. Therefore, I
conclude that Act 23 will deter a substantial number
of eligible voters from casting a ballot."61
¶124 Based on the record in this case, which is remarkably
similar to the record before the district court in Frank, it was
58
Frank v. Walker, No. 2011-CV-1128, slip op. at 1 (E.D.
Wis. Apr. 29, 2014).
59
Id. at 31-34. Seven of the eight people who testified in
Frank are low-income individuals and an expert witness who
testified at that trial established that "[a] substantial number
of the 300,000 plus eligible voters who lack a photo ID are low-
income." Id. at 24.
60
Id. at 37.
61
Id.
26
No. 2012AP1652.npc
not clearly erroneous for the circuit court to conclude that Act
23 places severe cost burdens on a substantial number of
eligible Wisconsin voters who lack Act 23-compliant
identification.
3. THE TIME AND EFFORT NECESSARY TO OBTAIN ACT 23-COMPLIANT
IDENTIFICATION CONTRIBUTES TO THE SEVERITY OF THE BURDEN
¶125 Contrary to the majority opinion, I conclude that the
time spent and difficulties encountered by individuals trying to
obtain Act 23-compliant identification are significant and
contribute to the severity of the burden.62 The fact that the
majority of the plaintiffs in this case eventually obtained a
photo identification card for voting purposes does not mean that
no burden exists.63 This is because the burden analysis requires
the court to consider the time spent, the obstacles encountered,
and the costs paid in obtaining the identification, and not
merely the end result of these efforts.
¶126 Here, the circuit court found, "Procuring a DMV Photo
ID can easily be a frustrating, complex, and time-consuming
process." It further concluded that "[t]he cost and the
difficulty of obtaining documents necessary to apply for a DMV
Photo ID is a significant burden upon the opportunity of
Wisconsin citizens to vote."
62
See majority op., ¶¶41-48.
63
See id., ¶42.
27
No. 2012AP1652.npc
¶127 The circuit court relied on affidavits and depositions
from numerous individuals who described the time spent and
difficulties incurred in obtaining or attempting to obtain Act
23-compliant identification. In its decision and order, the
circuit court specifically relied upon the experiences of
Ruthelle R. Frank and Ricky T. Lewis who each had frustrating
experiences in attempting to obtain photo identification.
Errors on birth certificates caused this difficulty and
prevented both individuals from obtaining photo identification.
Lewis estimated in his deposition that he spent 10 to 15 hours
attempting to obtain identification. The circuit court also
relied upon the experiences of Sequoia Cole, Brittany Cramer,
and Joel Torres who all explained that obtaining photo
identification took a substantial amount of time——up to 6.5
hours in one case. A majority of the individuals cited by the
circuit court made multiple trips to DMV service centers and
other state agencies in attempting to obtain Act 23-compliant
photo identification.
¶128 In addition to the individuals cited in the circuit
court's decision, the record also contains a number of other
affidavits and depositions that describe the time and difficulty
burden that Act 23 imposes. For example, Ndidi Brownlee spent
several hours traveling to and then waiting at the DMV. Cheryl
Edwards' affidavit states that she spent roughly nine hours
assisting family members who needed to obtain photo
28
No. 2012AP1652.npc
identification for voting purposes. Kristen Green's affidavit
indicates that she made multiple trips to the DMV to obtain
photo identification and that her combined trips totaled almost
five hours. Danettea Lane's affidavit states that she spent
nearly 10 hours during the process of obtaining identification.
Mary McClintock, who uses a wheelchair, was required to arrange
special transportation and spent approximately nine hours in the
process of obtaining identification. The record also reflects
that Jennifer Platt's trip to the DMV took three hours.
Speciall Simmons stated in his affidavit that it took him three
hours to obtain identification. Willie Watson spent
approximately four hours arranging transportation that would
allow him to apply for identification. John Wolfe's affidavit
and deposition testimony indicated that the closest DMV was 30
to 40 miles out of his way.
¶129 As the previous discussion demonstrates, the record
fully supports the circuit court's conclusions pertaining to the
time, effort, and difficulty burdens. Therefore, the circuit
court's determination that the difficulties imposed by Act 23
result in a severe burden was not clearly erroneous.
¶130 In coming to the opposite conclusion, the majority
opinion notes that photo identification is part of the reality
of daily life.64 This may be true; however, that does not
64
Id., ¶44.
29
No. 2012AP1652.npc
diminish the burdens that Act 23 imposes on individuals who
accomplish their daily responsibilities without any form of
photo identification that would meet the requirements of Act 23.
In Frank, the United States District Court for the Eastern
District of Wisconsin addressed the impact that Act 23 has on
individuals who currently conduct their daily lives without any
form of Act 23-compliant identification.65 The district court
stated,
[A] person whose daily life did not require possession
of a photo ID prior to the imposition of the photo ID
requirement is unlikely to derive any benefit from
possessing a photo ID other than the ability to
continue voting. Yet that person must pay the same
costs——in the form of the hassle of obtaining the
underlying documents and making a trip to the DMV——as
the person who obtained the ID for driving.66
¶131 The district court in Frank, relying on the
testimony of numerous individuals lacking Act 23-compliant
identification, also specifically considered the time and
difficulty burden imposed by Act 23. In doing so, it
considered the number of DMV service centers in the state
and noted that only two centers in the entire state are
open past 5 p.m. and that only one DMV service center in
65
Frank v. Walker, No. 2011-CV-1128, slip op. at 11 (E.D.
Wis. Apr. 29, 2014).
66
Id.
30
No. 2012AP1652.npc
the state is open on the weekend.67 This fact led the
district court to conclude that individuals will likely
have to take time off of work and forfeit hourly wages to
obtain a voter identification card from a DMV center during
business hours.68 If an individual is required to obtain
underlying documents from other state agencies, then the
amount of time and lost wages increases.69
¶132 The district court also heard testimony that
indicated that not all DMV centers are accessible by public
transportation.70 In reaching its conclusion that Act 23
imposes severe burdens on individuals, it considered these
transportation difficulties especially in light of low-
income Wisconsin residents who rely primarily on public
transportation.71
67
Id. at 30. The amicus brief submitted by Institute for
One Wisconsin similarly explains that "the DMV services centers
are open for limited hours. Indeed, 41 are open just two days
each week, seven are open just a few hours for one day each
month, and three are open just one day every quarter."
68
Id.
69
Id. at 31.
70
Id. Disability Rights Wisconsin's amicus brief also
notes transportation difficulties for eligible Wisconsin voters
living with disabilities as well as eligible voters living in
rural areas.
71
Id. at 30.
31
No. 2012AP1652.npc
¶133 The majority opinion's reliance on the Crawford72
decision's discussion of the time required and other
obstacles faced, such as "life's vagaries,"73 fails to
convince me that the circuit court's findings were clearly
erroneous. The majority opinion cites to Crawford for the
proposition that trips to the DMV and other difficulties
suffered to obtain a voter identification card cannot
constitute a severe burden.74 However, the majority
opinion's selective reliance on portions of Crawford
ignores the fact that the United States Supreme Court was
satisfied that the affidavit exception75 to Indiana's voter
ID law alleviated some of the burdens of "life's
vagaries."76 In addition, the majority opinion ignores the
following language from Crawford,
Both evidence in the record and facts of which we may
take judicial notice, however, indicate that a
72
553 U.S. 181 (2008).
73
Majority op., ¶43.
74
Id.
75
The Indiana voter identification law provides that "[a]
voter who is indigent or has a religious objection to being
photographed may cast a provisional ballot that will be counted
only if she executes an appropriate affidavit before the circuit
court clerk within 10 days following the election." Crawford,
553 U.S. at 186 (2008) (citing Ind. Code Ann. §§ 3-11.7-5-1
(West Supp. 2007), 3-11.7-5-2.5(c) (West 2006)). In contrast to
the Indiana voter identification law, Act 23 provides no such
affidavit exception.
76
Id. at 197-98.
32
No. 2012AP1652.npc
somewhat heavier burden may be placed on a limited
number of persons. They include elderly persons born
out of State, who may have difficulty obtaining a
birth certificate; persons who because of economic or
other personal limitations may find it difficult
either to secure a copy of their birth certificate or
to assemble the other required documentation to obtain
a state-issued identification; homeless persons; and
persons with a religious objection to being
photographed. If we assume, as the evidence suggests,
that some members of these classes were registered
voters when SEA 483 was enacted, the new
identification requirement may have imposed a special
burden on their right to vote.77
¶134 In sum, both the record in this case and the
Frank decision support the circuit court's finding that the
time, effort, and difficulty burden that Act 23 imposes is
severe.
B. ACT 23 IS NOT NARROWLY TAILORED TO ACHIEVE ANY COMPELLING
STATE INTEREST
¶135 The circuit court's finding that Act 23 places a
severe burden on a substantial number of eligible Wisconsin
voters who lack Act 23-compliant identification must be upheld;
therefore, the Act is constitutional only if it is narrowly
tailored to achieve a compelling state interest.78
¶136 The state asserts that Act 23 has two primary and
compelling benefits: the reduction of voter fraud and the
77
Id. at 199 (emphasis added) (footnote omitted).
78
Burdick, 504 U.S. at 434. As previously discussed, the
majority opinion interprets administrative rules to craft a
remedy that attempts to reduce the burden placed on voters.
This does not follow from the Anderson/Burdick framework.
Because of the majority opinion's approach, it concludes that
rational basis scrutiny applies. See majority op., ¶¶72-80
(discussing the benefits of Act 23).
33
No. 2012AP1652.npc
increase of voter confidence in the outcome of elections. In
considering these alleged benefits, the circuit court found that
"[t]he Photo ID requirements of Act 23 are unlikely to protect
the electoral process" and "[t]he Photo ID requirements of Act
23 are not narrowly tailored to achieve a goal of voter
verification." Specifically, the circuit court found,
Since 2004, voter fraud investigations have been
undertaken by the Milwaukee Police Department, by the
Mayor of Milwaukee and by the Wisconsin Department of
Justice, working with various county prosecutors
working through the Attorney General's Election Fraud
Task Force. None of these efforts have produced a
prosecution of a voter fraud violation that would have
been prevented by the voter ID requirements of Act 23.
¶137 Finally, in referencing voter fraud and summarizing
its holding, the circuit court stated,
Act 23 addresses a problem which is very limited, if
indeed it exists. It does not appear to recognize or
to account for the difficulty its demands impose upon
indigent and elderly citizens who are eligible under
the constitution to vote. It offers no flexibility,
no alternative to prevent the exclusion of a
constitutionally qualified voter. Given the sacred,
fundamental interest at issue, it is clear that Act
23, while perhaps addressing a legitimate concern, is
not sufficiently narrow to avoid needless and
significant impairment of the right to vote. The
enactment steps beyond the proper authority of the
legislature and is in violation of the Wisconsin
Constitution, Article III, Section 1.
The circuit court's findings in regard to the lack of benefits
associated with Act 23 and its determination that the Act is not
narrowly tailored to achieve these benefits are supported by the
record, and thus, are not clearly erroneous; therefore, the
circuit court's findings must be upheld.
34
No. 2012AP1652.npc
¶138 In regard to the allegation that Act 23 reduces voter
fraud, the circuit court heard testimony regarding incidents of
voter fraud and considered the current penalties in place to
deter voter fraud.79 One indication that Act 23 is not narrowly
tailored to reduce voter fraud is that incidents of voter fraud
in general are almost non-existent. An even greater indication
that Act 23 is not narrowly tailored to prevent voter fraud is
that the photo identification requirements of the Act would not
prevent the types of voter fraud that have been uncovered during
recent investigations.
¶139 The circuit court heard testimony from Professor Mayer
regarding a lack of voter fraud in Wisconsin generally as well
as a lack of impersonation voter fraud, which Act 23 is most
likely to prevent. Professor Mayer based his testimony on
academic studies of voter fraud, as well as studies conducted in
2004 and 2008 of voter fraud in Wisconsin. He concluded and
testified that "there is virtually no evidence at all that in-
79
Wisconsin statutes criminalize voter fraud as Class I
felonies and impose penalties of up to 3.5 years in prison or up
to a $10,000 fine, or both. See Wis. Stats. §§ 12.13 (governing
various forms of election fraud), 12.60 (detailing the penalty
structure for crimes related to election fraud), 939.50
(outlining the classification structure of felonies). In
reference to the strict penalties imposed on fraudulent voting,
the district court in Frank stated, "As the plaintiffs'
unrebutted evidence shows, a person would have to be insane to
commit voter-impersonation fraud." Frank v. Walker, No. 2011-
CV-1128, slip op. at 8 (E.D. Wis. Apr. 29, 2014).
35
No. 2012AP1652.npc
person voter impersonation at the polling places occurs with any
frequency, if it occurs at all."
¶140 Professor Mayer also reviewed incidents of voter fraud
detected by a 2008 Department of Justice (DOJ) investigation.
The DOJ investigation followed the 2008 presidential election.
As a result of the investigation, the State brought charges in
20 cases of election fraud. These charges included eleven cases
of felons voting, two double voting cases, six cases of
misconduct related to voter registration, and one fraudulent
case of absentee voting. This investigation resulted in no
charges of impersonation voter fraud.
¶141 Professor Mayer testified that the photo
identification requirements of Act 23 would not have prevented
any of the types of voter fraud identified in the 2008 DOJ
investigation. For example, the photo identification
requirements of Act 23 would not prevent a felon from voting
because any felon with Act 23-compliant photo identification
could cast a ballot. In the two cases of double-voting,
individuals voted absentee and were also allowed to vote in-
person because of poor record keeping. In Professor Mayer's
expert opinion, photo identification would not have prevented
these two individuals from voting in person, since poll workers
had no record that they had already voted absentee.
Furthermore, the photo identification requirements of Act 23
would not have prevented the cases of fraudulent voter
36
No. 2012AP1652.npc
registration because there is no photo identification
requirement to register to vote.
¶142 Furthermore, the circuit court found that "a
comprehensive study of voter attitudes has found that state
photo ID requirements appear to have no effect upon public
confidence in the process." In reaching this conclusion, the
circuit court relied on Professor Mayer's January 16, 2011,
report in which he reviewed the findings of the Cooperative
Congressional Election Study (CCES). Professor Mayer's report
explains a study of the CCES, which stated, "ID laws will have
little or no effect on the confidence in the electoral system or
the belief in the incidence of fraud. Those beliefs . . . are
not different when a stricter ID law is in place and enforced
than when less invasive voter-authentication methods are used."
There is nothing in the record that disputes Professor Mayer's
interpretation of the CCES or the circuit court's finding that
Act 23 does not increase voter confidence in election outcomes.
¶143 The majority opinion asserts that the "State has a
significant and compelling interest in protecting the integrity
and reliability of the electoral process, as well as promoting
the public's confidence in elections."80 However, both the
majority opinion and the record in this case fail to demonstrate
how Act 23's photo identification requirement promotes either of
80
Majority op., ¶73 (citing Crawford, 553 U.S. at 196).
37
No. 2012AP1652.npc
these state interests in any meaningful way. Therefore, I agree
with the circuit court's findings that Act 23 is not narrowly
tailored to the State's interests of decreasing voter fraud or
increasing public confidence in the outcome of elections. The
result is that Act 23 is unconstitutional.
III. THE PROPER REMEDY
¶144 Consideration of the proper remedy is appropriate
after considering the burdens of Act 23, the applicable level of
judicial scrutiny, and the benefits of the Act. In the midst of
discussing the Anderson/Burdick framework, however, the majority
opinion interprets administrative rules in a way that allows for
an exception to the cost of obtaining a certified copy of a
birth certificate for some individuals. There is no dispute
that a court must determine whether legislation challenged as
unconstitutional may be interpreted in a way to avoid
invalidation.81 However, the majority's approach is absolutely
contrary to the role of this court and essentially invades the
legislative function because it is not actually interpreting Act
23, the challenged legislation, in a way that cures the Act's
unconstitutionality. Instead, the majority reaches outside of
the challenged legislation and interprets existing
81
See Crowell v. Benson, 285 U.S. 22, 62 (1932) ("When the
validity of an act of the Congress is drawn in question, and
even if a serious doubt of constitutionality is raised, it is a
cardinal principle that this Court will first ascertain whether
a construction of the statute is fairly possible by which the
question may be avoided.").
38
No. 2012AP1652.npc
administrative code provisions in its attempt to salvage an
unconstitutional Act. This approach results in a direction to
an administrative agency that is not a party in this case. The
majority cites no authority that supports this novel approach.
¶145 The majority opinion directs DMV administrators to
deem any document requiring a payment to a government agency
"unavailable" for purposes of the Wisconsin Administrative Code
§ Trans 102.15(3)(b) exception.82 The majority may also be
directing DMV administrators to accept an individual's written
petition for the exception.83 Either approach involves directing
a non-party.
¶146 The conclusion that the majority opinion cannot direct
agency administrators who are non-parties to this case is
supported by Wisconsin civil procedure and our case law. For
example, Wis. Stat. § 801.05 governs personal jurisdiction and
provides that a court has "jurisdiction over a person served in
an action . . . ."84 This court has explained,
A summons serves two purposes. First, a summons
provides notice to the defendant that an action has
been commenced against the defendant. Indeed, notice
that apprises a party of the pendency of an action
against it and affords the opportunity to present
objections is regarded as "[a]n elementary and
fundamental requirement of due process." Second,
82
Majority op. ¶¶69-70.
83
Majority op., ¶¶7, 7 n.5, 70.
84
Wis. Stat. § 801.05.
39
No. 2012AP1652.npc
consistent with Wis. Stat. §§ 801.05 and 801.11, a
summons confers personal jurisdiction on a court over
the defendant served.85
In addition, "[i]f a person is not named in a lawsuit, that
person is a stranger to the court and cannot be bound by it."86
These are essential principles governing jurisdiction that the
majority opinion fails to consider when directing DMV
administrators to take action. The issue of directing a non-
party to exercise discretion or to take action is not a "straw
man,"87 but rather it involves basic principles of jurisdiction
and civil procedure.
¶147 The majority's approach is also inconsistent with how
courts typically interact with administrative agencies. For
example, courts tasked with reviewing agency actions must adhere
to strict statutory guidelines that allow the court to maintain
subject matter jurisdiction.88 No court, including our court,
has any authority to direct action by an administrative agency
unless that court has jurisdiction to do so. We have no
jurisdiction to act here as the majority attempts to do so.
85
Johnson v. Cintas Corp. No. 2, 2012 WI 31, ¶24, 339 Wis.
2d 493, 811 N.W.2d 756 (citations omitted).
86
Bulik v. Arrow Realty, Inc. of Racine, 148 Wis. 2d 441,
444, 434 N.W.2d 853 (Ct. App. 1988).
87
Majority op., ¶71 n.17.
88
See Wis. Stat. § 227.53; see also Schiller v. DILHR, 103
Wis. 2d 353, 355, 390 N.W.2d 5 (Ct. App. 1981) (citing Kegonsa
Joint Sanitary Dist. v. City of Stoughton, 87 Wis. 2d 131, 274
N.W.2d 598(1979)).
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No. 2012AP1652.npc
¶148 Contrary to the majority opinion, I conclude that the
appropriate remedy is invalidation of Act 23. If the
legislature chooses, it may enact a constitutional version of
Act 23 considering the administrative framework in which the Act
functions——that is, one that does not severely burden any
eligible Wisconsin voter. To avoid the unconstitutionality of
the majority's remedy and put in place a voter identification
law that is unquestionably enforceable, the legislature should
look to Indiana's voter identification law, which the United
States Supreme Court upheld in Crawford. A clear legislative
directive preserves the essential separation of legislative and
judicial powers that the Wisconsin Constitution requires.89
¶149 Constitutional issues that "are peppered with
political perceptions and emotionally laden views" require
courts to exercise judicial restraint.90 This court exercised
judicial restraint in the context of public school funding in
Kudor v. Grover,91 and this court should likewise exercise
caution in its review of Act 23. This is because voter
identification laws such as Act 23 involve highly politicized
issues that concern complicated matters of public policy.
89
Wagner Mobil, Inc. v. City of Madison, 190 Wis. 2d 585,
594 n.4, 527 N.W.2d 301 (1995).
90
Kukor v. Grover, 148 Wis. 2d 469, 504, 436 N.W.2d 568
(1989) (addressing a constitutional challenge to public school
funding).
91
Id.
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No. 2012AP1652.npc
¶150 In discussing remedy in Frank the district court came
to a similar conclusion. The district court remarked,
The plaintiffs suggest that I could order the
defendants to allow eligible voters without photo IDs
to vote without showing an ID or by signing an
affidavit affirming their identities and lack of an
ID. However, ordering such relief would be the
functional equivalent of enjoining the current law and
replacing it with a new law drafted by me rather than
the state legislature. . . . To grant this remedy, I
would need to make a policy judgment as to whether
eligible voters who do not have IDs should be required
to sign affidavits of identity before receiving a
ballot. And, if I found that an affidavit was
required, I would need to decide what language the
affidavit should contain. Once I issued this relief, I
would have to supervise the state's election-
administration officials to ensure that they were
properly implementing my instructions. These tasks are
outside the limited institutional competence of a
federal court, and therefore I may not rewrite the
photo ID requirement to conform it to constitutional
requirements.92
¶151 A Wisconsin statute allows unconstitutional portions
of laws to be severed under certain circumstances;93 however,
92
Frank v. Walker, No. 2011-CV-1128, slip op. at 39 (E.D.
Wis. Apr. 29, 2014).
93
Wis. Stat. § 990.001 states, "In construing Wisconsin
laws the following rules shall be observed unless construction
in accordance with a rule would produce a result inconsistent
with the manifest intent of the legislature: . . . ."
Subsection (11) provides,
The provisions of the statutes are severable. The
provisions of any session law are severable. If any
provision of the statutes or of a session law is
invalid, or if the application of either to any person
or circumstance is invalid, such invalidity shall not
affect other provisions or applications which can be
given effect without the invalid provision or
application.
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No. 2012AP1652.npc
this remedy is not applicable to Act 23. This is because the
unconstitutionality of Act 23 is a result of how the law
functions within a greater body of administrative rules. In
other words, there is no portion of Act 23 that could be severed
that would cure the unconstitutionality of the Act.
¶152 The United States Supreme Court has explained that
courts must avoid judicial legislation and should avoid editing
statutory text.94 Furthermore, the Supreme Court has illuminated
three key principles underlying remedies.95 First, a court
should seek to invalidate as little of the legislature's work as
possible.96 Second, a court must refrain from rewriting
unconstitutional state laws.97 Third, a court must consider
legislative intent in attempting to salvage an unconstitutional
law.98
¶153 After considering these principles and the inability
of this court to sever a specifically unconstitutional portion
of Act 23 that would save the law, I conclude that the only
applicable remedy is invalidation of Act 23. Act 23 functions
within a regulatory framework established by the Wisconsin
legislature, which imposes a cost for birth certificates. I
94
United States v. Nat'l Treasury Emps. Union, 513 U.S.
454, 478-79 (1995).
95
Ayotte v. Planned Parenthood of N. New England, 546 U.S.
320, 329 (2006).
96
Id.
97
Id.
98
Id. at 330.
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No. 2012AP1652.npc
agree with the majority opinion that the legislature could
eliminate this cost.99 It could also institute another type of
exception to the Act's requirements that could lessen the
severity of the burden imposed on certain eligible Wisconsin
voters, such as the affidavit exception found in Indiana's voter
identification law.100 However, it is the role of the
legislature and not this court to institute such changes to Act
23 or to the framework in which the Act operates. It is unknown
whether the majority opinion's remedy will function effectively
or how that remedy will be enforced. Finally, the majority
opinion's remedy fails to consider policy considerations,
budgetary constraints, and legislative intent. It is the
legislature and not this court that should address the
unconstitutionality of Act 23.
IV. CONCLUSION
¶154 I cannot agree with the majority opinion's
characterization and analysis of the plaintiffs' challenge. The
majority incorrectly characterizes the challenge as a purely
facial challenge. It fails to apply the Anderson/Burdick
framework correctly. It improperly relies on poll tax case law.
Even if I were to assume that poll tax analysis applied, the
99
Majority op., ¶62.
100
See Crawford, 553 U.S. at 186, 199 (discussing the
affidavit exception to Indiana's voter identification law).
Specifically, part of the affidavit exception to Indiana's voter
identification law allows provisional ballots cast by indigent
voters to be counted if the voter "executes an affidavit before
the circuit court clerk or county election board" in accordance
with statutory requirements. Ind. Code Ann. § 3-11.7-5-2.5
(West 2011).
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majority's attempt to alleviate the de facto poll tax for some
eligible Wisconsin voters results in an unworkable solution that
fails to cure the unconstitutionality of Act 23. Specifically,
the majority opinion's remedy appears to leave in place the
discretion of DMV administrators to issue or refuse to issue Act
23-compliant identification where a fee is required for
supporting documents. If the majority opinion leaves in place
the discretion of DMV administrators to issue exceptions to
those burdened by the cost of obtaining underlying
documentation, it fails to guarantee constitutional protections
against poll taxes. On the other hand, if the majority opinion
requires DMV administrators to issue photo identification cards
to individuals who are burdened by the cost of obtaining
required underlying documentation, then it is directing a non-
party to take specific action, which it has no authority to do.
In sum, the remedy imposed by the majority, under either
approach, is flawed. Furthermore, its remedy impinges on the
legislature's role by interpreting administrative code
provisions that are not part of this challenge and by directing
an administrative agency that is not a party to this case. I
urge the legislature to take action to cure the
unconstitutionality of Act 23. Without such action, the remedy
crafted by the majority leaves Act 23 unconstitutional.
¶155 The United States Supreme Court's decision in Crawford
v. Marion County Election Board,101 which upheld Indiana's voter
identification statute, does not persuade me that Act 23 is
101
Crawford, 553 U.S. 181.
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constitutional. This is because there are substantial
differences between this case and the Crawford case. First, the
record in the Crawford case was not nearly as developed as the
record in this case. This factor certainty influenced the
Supreme Court's decision.102 Second, Indiana's voter
identification statute is not as stringent as Act 23. Most
importantly, the Indiana law provides for an affidavit exception
that allows certain individuals to vote without photo
identification.103 In upholding Indiana's voter identification
law, Justice Stevens' lead opinion commented that the severity
of the burden imposed by the photo identification requirement
"is, of course, mitigated by the fact that, if eligible, voters
without photo identification may cast provisional ballots that
will ultimately be counted."104 Finally, while Act 23 applies to
both in-person and absentee voting, Indiana's photo
identification requirements do not apply to absentee voting.
Therefore, the Crawford case is neither controlling nor
persuasive.
¶156 The question of whether Act 23 violates the Wisconsin
Constitution is at the intersection of profound democratic
102
Id. at 200 ("But on the basis of the evidence in the
record it is not possible to quantify either the magnitude of
the burden on this narrow class of voters . . . . [T]he record
does not provide us with the number of registered voters without
photo identification . . . .").
103
Id. at 186 (describing the affidavit procedure available
to indigent voters as well as individuals with a religious
objection to being photographed).
104
Id. at 199.
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principles: the right of qualified Wisconsin citizens to vote,
as explicitly guaranteed by the Wisconsin Constitution, and the
undisputed principle that the state has a legitimate interest in
safeguarding the integrity of elections through regulations.
Voter identification provisions are one way the state may choose
to protect the legitimacy of elections. Such provisions may be
constitutionally imposed even if they severely burden a person's
right to vote, as long as they are narrowly tailored to advance
a compelling state interest. However, Act 23's photo
identification requirements severely burden eligible voters
without being narrowly tailored to achieve the state's
compelling interests of reducing voter fraud and increasing
voter confidence in the outcomes of elections. For that reason,
Act 23 is an unconstitutional election regulation, and I
therefore respectfully dissent.
¶157 I am authorized to state that Justice ANN WALSH
BRADLEY joins this dissent.
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