$20.00 for a certified copy of a birth certificate is a stumbling block for a free State issued ID.
A divided state Supreme Court on Thursday tweaked a provision of Wisconsin’s voter ID law to put it in keeping with the state constitution, making it easier for people to get identification cards without having to pay along the way.
Despite Thursday’s rulings in two challenges of the law, the requirement to show photo identification at the polls remains blocked because a federal judge in April found Wisconsin’s voter ID law violates the U.S. Constitution and federal Voting Rights Act. That decision is now under review by the U.S. 7th Circuit Court of Appeals in Chicago.
State Attorney General J.B. Van Hollen, who defended the law, said he believed Thursday’s rulings strengthened his hand in the federal litigation and he would use them to try to reinstate the voter ID requirement in time for the Nov. 4 election.
The Wisconsin Supreme Court ruled in two cases, upholding the voter ID law 4-3 in one and 5-2 in the other.
In one case, the court majority crafted a “saving construction” of the voter ID law to keep it from being unconstitutional. That was aimed at preventing the state from requiring voters to pay any government fees to get a state-issued ID card.
How that would work is unclear. The ruling requires the state Division of Motor Vehicles to give out IDs to those who can’t afford birth certificates and other documents, but provides no guidance to how officials could determine people are who they say they are without such documentation.
“I am confounded by that, by the saving construction, because there are no standards for how to apply it,” said Madison attorney Lester Pines, who represented the League of Women Voters of Wisconsin in one of the voter ID cases.
“I find it to be unworkable and it’s going to lead to more litigation.”
Currently, people can get free ID cards for voting from the state, but they have to produce certified copies of their birth certificates — which cost $20 apiece in Wisconsin — to get them. The majority saw that as a problem.
“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,” Justice Patience Roggensack wrote for the majority in a case brought by the Milwaukee branch of the National Association for the Advancement of Colored People.
To keep the law intact, the majority rewrote the state’s administrative code to require the Division of Motor Vehicles to issue photo ID without requiring a birth certificate or other documents that require fees.
“As the (U.S.) 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,” the majority stated.
The majority left DMV administrators with some discretion on when to issue voter ID cards without birth certificates or other documents. That opens the possibility for more legal disputes.
In dissent in both cases, Chief Justice Shirley Abrahamson wrote it was “anyone’s guess” as to which government costs voters could avoid, noting fees are charged for an array of documents that could be used to get IDs, such as marriage certificates, judgments of divorce and naturalization papers. She argued the court shouldn’t be interpreting regulations that aren’t before it, such as the administrative code the majority redrafted.
Because the burden on voters is severe and the state has not shown a compelling interest served by requiring photo ID, the voter ID law should be struck down as unconstitutional, she wrote.
“Today the court follows not James Madison — for whom Wisconsin’s capital city is named — but rather Jim Crow — the name typically used to refer to repressive laws used to restrict rights, including the right to vote, of African-Americans,” Abrahamson wrote for the dissenters in the second case brought by the League of Women Voters.
She noted that in the NAACP case, the majority conceded that the cost of a birth certificate amounts to a poll tax, but in the League of Women Voters case declared all of the voter ID law constitutional. Neither opinion explained the inconsistency, she wrote.