National Review Online misrepresented a recent court decision that could allow an unneccessarily restrictive voter identification law to be implemented in Wisconsin only weeks before the November election.
On September 12, the Seventh Circuit Court of Appeals lifted an injunction that a district court judge had previously granted to prevent Wisconsin's strict voter ID law from going into effect due to concerns that its disproportionate effect on communities of color violated the Voting Rights Act. After the three judge panel of the Seventh Circuit issued its order, Wisconsin officials announced that they would move forward with implementing the law despite the fact that election officials are not trained in the new photo ID requirements and absentee ballots have already been turned in. This last minute voting change has the potential to keep hundreds of thousands of Wisconsin voters who lack photo ID from participating in the November election.
Right-wing media quickly downplayed the significance the law might have on the election. On the September 17 edition of Special Report with Bret Baier, Fox News correspondent Mike Tobin managed to point out that the law could affect the outcome of the gubernatorial race in Wisconsin, which shows Republican Gov. Scott Walker in a near-tie with his Democratic opponent Mary Burke. But Tobin minimized the impact of the ID law by erroneously suggesting that “there is only a handful of voters who won't get IDs by election day.”
NRO contributor Hans von Spakovsky, a tireless advocate for voter ID laws that suppress the vote of women, minorities, and the poor, also applauded the Seventh Circuit's order, calling it a “stunning blow” for opponents of voter ID. Von Spakovsky overlooked key facts in the case to ultimately conclude there was “no justification for striking down” Wisconsin's law in the first place:
As I explained in an NRO article in May, the district court judge, Lynn Adelman, a Clinton appointee and former Democratic state senator, had issued an injunction claiming the Wisconsin ID law violated the Voting Rights Act as well as the Fourteenth Amendment. Adelman made the startling claim in his opinion that the U.S. Supreme Court's decision in 2008 upholding Indiana's voter-ID law as constitutional was “not binding precedent,” so Adelman could essentially ignore it.
However, that was too much for the Seventh Circuit. It pointed out, in what most lawyers would consider a rebuke, that Adelman had held Wisconsin's law invalid “even though it is materially identical to Indiana's photo ID statute, which the Supreme Court held valid in Crawford v. Marion County Election Board.”
It was also obviously significant to the Seventh Circuit that the Wisconsin state supreme court had upheld the state's voter-ID law in July ... In fact, the appeals court said the state court decision had changed the “balance of equities and thus the propriety of federal injunctive relief.”
In other words, there was no justification for striking down a state voter-ID law that was identical to one that had been previously upheld by both the Supreme Court of the United States and that state's highest court.
Von Spakovsky went on to dismiss concerns that the new law will cause "chaos at the polls" because “there has been no such 'chaos' in any of the other states that have implemented voter-ID laws over the past ten years.” Whether or not previous attempts to introduce new voter ID laws have gone smoothly in other states is debatable, but von Spakovsky also conveniently overlooks the specifics of the Wisconsin law to prove his point. Regardless of the similarities between the Wisconsin and Indiana laws, the November election is less than two months away. As the ACLU argued in its request to the Seventh Circuit to rehear the case, “no court has permitted a voter ID law to go into effect this close to an election based on last-minute changes to the law” and the Supreme Court has expressly warned that “Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.”
In support of their argument that “it's mathematically, logically, and physically impossible that by November 4, hundreds of thousands of voters will learn about the need for the photo ID, collect the multiple underlying documents to try to get an ID and exercise their most fundamental right, get to a DMV, and then obtain the ID suddenly required to vote since Friday afternoon,” the Advancement Project and the ACLU point out that in order to protect these citizens' right to vote the state would have “to issue some 6,000 photo IDs per day between now and the election.”
Moreover, von Spakovsky's claim that the Seventh Circuit's ruling was a “rebuke” is based on a selective reading of the order. While it is true that the Supreme Court upheld Indiana's voter ID law in Crawford, the idea that the lower court judge in the Wisconsin case “essentially ignored” that legal precedent is absurd. In reality, as the Seventh Circuit's order explicitly noted in the part not quoted by von Spakovsky, the district court initially blocked the law “based on findings that it thought showed that Wisconsin did not need this law to promote an important governmental interest, and that persons of lower income (disproportionately minorities) are less likely to have driver's licenses, other acceptable photo ID, or the birth certificates needed to obtain them.” Even though the law is similar to Indiana's constitutional version, there were extenuating circumstances in the Wisconsin case that gave the district court pause.
This is a common bait and switch tactic on the part of right-wing media -- claiming Crawford settled the constitutionality of all voter ID laws, when in fact it was a decision about the propriety of one specific piece of legislation as passed at one specific time.
No matter what happens in Wisconsin, von Spakovsky also seems all too happy to ignore the obvious problems with voter ID laws: they are a solution to an imaginary problem. The type of fraud voter ID is designed to catch -- in-person voter fraud -- is virtually non-existent, despite von Spakovsky's endorsement of Walker's claim that the stay makes it “easier to vote and harder to cheat.” In the Wisconsin Supreme Court decision that von Spakovsky approvingly cited, the only example of voter fraud the court noted was one that voter ID would not prevent -- and it was reportedly “committed by a Walker supporter.”
Von Spakovsky didn't seem too eager to point that out, either.