Nos. 14-2058 & 14-2059
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
RUTHELLE FRANK, et al., Plaintiffs-Appellees, v. SCOTT WALKER, et al., Defendants-Appellants. ________________________________________________________________________ LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC) OF WISCONSIN, et al., Plaintiffs-Appellees, v. DAVID G. DEININGER, et al., Defendants-Appellants. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF WISCONSIN, CASE NOS. 11-CV-1128 & 12-CV-285,
THE HONORABLE LYNN S. ADELMAN, PRESIDING
DEFENDANTS-APPELLANTS’ CONSOLIDATED SEPARATE APPENDIX – VOLUME 1 of 7 (A. 001-276)
ii
J.B. VAN HOLLEN Attorney General CLAYTON P. KAWSKI* Assistant Attorney General State Bar # 1066228
MARIA S. LAZAR Assistant Attorney General State Bar # 1017150 BRIAN P. KEENAN Assistant Attorney General State Bar # 1056525 Attorneys for Defendants-Appellants in Frank and LULAC
Wisconsin Department of Justice Post Office Box 7857 Madison, Wisconsin 53707-7857 (608) 266-7477 (Kawski) (608) 267-3519 (Lazar) (608) 266-0020 (Keenan) (608) 267-2223 (fax) [email protected] [email protected] [email protected] *Counsel of Record
iii
CERTIFICATE OF COMPLIANCE WITH APPENDIX REQUIREMENTS
I certify that all materials required by Fed. R. App. P. 30 (a) & (b) and 7th
Cir. R. 30(a) & (b) are included in this consolidated separate appendix.
Dated this 23rd day of June, 2014.
/s/ Clayton P. Kawski CLAYTON P. KAWSKI Assistant Attorney General WI State Bar #1066228 Attorney for Defendants-Appellants in Frank and LULAC
iv
INDEX TO CONSOLIDATED SEPARATE APPENDIX
DOCUMENT Pages (A. ___)
DOCKET ENTRIES – Volume 1 Frank v. Walker Dkt. #1 – Complaint for Declaratory and Injunctive Relief, filed on December 13, 2011
001-054
LULAC v. Deininger Dkt. #1 – Complaint, filed on February 23, 2012
055-069
Frank v. Walker Dkt. #31 – First Amended Complaint for Declaratory and Injunctive Relief, filed on March 2, 2012
070-148
LULAC v. Deininger Dkt. #75 - Fed. R. Civ. P. 25(a) Notice Regarding Death of One of the Plaintiffs, filed on August 14, 2013
149-150
LULAC v. Deininger Dkt. #77 - Civil L.R. 7(h) Expedited Nondispositive Motion for the Court to Advance Consideration of Its Jurisdiction, filed on August 30, 2013
151-154
LULAC v. Deininger Dkt. #84 – Decision and Order, entered on September 17, 2013
155-159
LULAC v. Deinigner Dkt. #127 – Decision and Order, entered on April 29, 2014 (same as Frank v. Walker Dkt. #195 – Decision and Order, entered on April 29, 2014)
160-249
LULAC v. Deininger Dkt. #128 – Judgment, entered on April 29, 2014
250
LULAC v. Deininger Dkt. #131 – Notice of Appeal, filed on May 12, 2014
251-252
Frank v. Walker Dkt. #196 – Judgment, entered on April 29, 2014
253
v
Frank v. Walker Dkt. #199 – Notice of Appeal, filed on May 12, 2014
254-256
Frank v. Walker Dkt. #201 – Notice of Motion and Motion to Stay Permanent Injunction Pending Appeal, filed on May 12, 2014 (same as LULAC v. Deininger Dkt. #133 – Notice of Motion and Motion to Stay Permanent Injunction Pending Appeal, filed on May 12, 2014)
257-276
TRIAL EXHIBITS – Volumes 2 through 6 Defendants’ Exhibit 1001 - Supplemental Declaration of M.V. Hood, III, dated October 18, 2013 (LULAC and Frank) Identified: Tr. at 1403; Received: Tr. at 1416
277-311
Defendants’ Exhibit 1002 - Declaration of M.V. Hood, III, dated May 31, 2012 (LULAC) Identified: Tr. at 1416; Received: Tr. at 1416
312-344
Defendants’ Exhibit 1003 - Declaration of M.V. Hood, III, dated June 29, 2012 (Frank) Identified: Tr. at 1415; Received: Tr. at 1416
345-382
Defendants’ Exhibit 1025 - Criminal Complaint: State of Wisconsin v. Leonard K. Brown, Milwaukee County Case No. 13CF1352, March 21, 2013 Identified: Tr. at 2046; Received: Tr. at 2047
383-397
Defendants’ Exhibit 1026 - Criminal Complaint: State of Wisconsin v. Michael A. Zore, Milwaukee County Case No. 07LF000390, December 20, 2006 Identified: Tr. at 2047; Received: Tr. at 2051
398
vi
Defendants’ Exhibit 1027 - Criminal Complaint: State of Wisconsin v. Ronald Hoppus, Milwaukee County Case No. 07CF1829, April 11, 2007 Identified: Tr. at 2052; Received: Tr. at 2052
399
Defendants’ Exhibit 1028 - Criminal Complaint: State of Wisconsin v. Chad M. Gigowski, Milwaukee County Case No. 13CF1353, March 1, 2013 Identified: Tr. at 2052; Received: Tr. at 2052
400-403
Defendants’ Exhibit 1029 – Criminal Complaint (unsigned): State of Wisconsin v. Charles L. Brandt, Milwaukee County Case No. 12CF1720 Identified: Tr. at 2055; Received: Tr. at 2055
404-405
Defendants’ Exhibit 1030 - Criminal Complaint: State of Wisconsin v. Endalyn Adams, Milwaukee County Case No. 08CF4890, September 29, 2008 Identified: Tr. at 2056; Received: Tr. at 2056
406-411
Defendants’ Exhibit 1053 - Bring It to the Ballot website excerpts, http://bringit.wisconsin.gov/ Identified: Tr. at 1913; Received: Tr. at 1912
412-419
Defendants’ Exhibit 1054 - Wisconsin Voter Photo ID Videos and Public Service Announcements (links to YouTube videos) Identified: Tr. at 1914; Received: Tr. at 1912
420
Defendants’ Exhibit 1056 – Draft of toll free Ballot Voter Helpline decision tree Identified: Tr. at 1918; Received: Tr. at 1912
421-423
vii
Defendants’ Exhibit 1058 - Written Proposal – GAB – Voter ID Print Ads – November 4, 2011 Identified: Tr. at 1920; Received: Tr. at 1912
424
Defendants’ Exhibit 1059 - Bring It to the Ballot posters, handbills, fliers, and pamphlets in English and Spanish Identified: Tr. at 1920; Received: Tr. at 1912
425-436
Defendants’ Exhibit 1060 - Bring It to the Ballot flyer Identified: Tr. at 1921; Received: Tr. at 1912
437-438
Defendants’ Exhibit 1063 – February 29, 2012, Letter from Wisconsin Broadcasters Association to GAB Public Information Officer Reid Magney
439-452
Defendants’ Exhibit 1064 – April 18, 2012, Letter from Wisconsin Broadcasters Association to GAB Public Information Officer Reid Magney Identified: Tr. at 1926; Received: Tr. at 1923
453-464
Defendants’ Exhibit 1065 - Bring It to the Ballot – A Resource Guide to The Government Accountability Board’s Implementation of Wisconsin Act 23: Voter Photo Identification Law (March 2012) Identified: Tr. at 1926; Received: Tr. at 1923
465-528
Defendants’ Exhibit 1066 - Bring it to the Ballot – Wisconsin’s Voter Photo ID Law, “Speaker’s Bureau” Slideshow
529-570
Defendants’ Exhibit 1070 – August 4, 2011, news release from the Wisconsin Department of Transportation (“DMV announces expanded service locations in Wisconsin”) Identified: Tr. at 1806; Received: Tr. at 1811
571-573
viii
Defendants’ Exhibit 1071 - Regional DMV Service Centers map Identified: Tr. at 1809; Received: Tr. at 1811
574
TRIAL TRANSCRIPT – Volume 7 Barreto, Matthew – Frank Plaintiffs’ witness, November 5, 2013, Volume II, p. 315 (Cross)
575
Beatty, Leland – LULAC Plaintiffs’ witness, November 6, 2013, Volume III, p. 710-12 (Cross)
576-578
Ciszewski, Raymond – LULAC Plaintiffs’ witness, November 5, 2013, Volume II, p. 546 (Cross)
579
Coakley, Allison – Defendants’ witness, November 14, 2013, Volume VII, p. 1903-33 (Direct)
580-610
Hood III, M.V. (Trey) - Defendants’ witness, November 12, 2013, Volume VI, p. 1471-72 (Direct)
611-612
Johnson, Anita – LULAC Plaintiffs’ witness, November 5, 2013, Volume II, p. 400-01 (Direct)
613-614
Kennedy, Kevin – Frank Plaintiffs’ witness, November 7, 2013, Volume IV, p. 939-40 (Cross)
615-616
Landgraf, Bruce - Defendants’ witness, November 15, 2103, Volume VIII, p. 2046-57 (Direct)
617-628
Lumpkin, Kenneth – LULAC Plaintiffs’ witness, November 5, 2013, Volume II, p. 436-37 (Cross)
629-630
Miller, James - Defendants’ witness, November 14, 2013, Volume VII, p. 1806-11, 1814, 1840-43 (Direct)
631-641
Newcomb, Sim – Frank Plaintiffs’ witness, November 7, 2103, Volume IV, p. 840-41, 844-46 (Direct); p. 850-52 (Cross)
642-649
ix
Robertson, Melvin – LULAC Plaintiffs’ witness, November 5, 2013, Volume II, p. 418-21 (Direct)
650-653
Smith, Dewayne – Frank Plaintiffs’ witness, November 7, 2013, Volume IV, p. 861-62 (Cross)
654-655
Spindell, Robert Jr. - Defendants’ witness, November 15, 2013, Volume VIII, p. 2001-02 (Direct)
656-657
Thompson, Rose – LULAC Plaintiffs’ witness, November 6, 2013, Volume III, p. 700, 704-05, 709 (Direct)
658-661
Wolfe, Rosalynn – LULAC Plaintiffs’ witness, November 5, 2103, Volume II, p. 528-30 (Cross)
662-664
Transcript of Court Trial – Master Witness Index
665-671
1
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN
RUTHELLE FRANK, CARL ELLIS, JUSTIN LUFT, DARTRIC DAVIS, BARBARA ODEN, SANDRA JASHINSKI, PAMELA DUKES, ANTHONY SHARP, ANTHONY JUDD, ANNA SHEA, MATTHEW DEARING, MAX KLIGMAN, SAMANTHA MESZAROS, STEVE KVASNICKA, SARAH LAHTI, DOMONIQUE WHITEHURST by his mother and next friend SABRENA PUTNAM, and EDWARD HOGAN Plaintiffs,
v.
SCOTT WALKER, in his official capacity as Governor of the State of Wisconsin; JUDGE THOMAS BARLAND, JUDGE GERALD C. NICHOL, JUDGE MICHAEL BRENNAN, JUDGE THOMAS CANE, JUDGE DAVID G. DEININGER, JUDGE TIMOTHY VOCKE, in their official capacities as Members of the Wisconsin Government Accountability Board, KEVIN J. KENNEDY, in his official capacity as Director and General Counsel of the Wisconsin Government Accountability Board, and NATHANIEL E. ROBINSON, in his official capacity as Administrator of the Elections Division of the Wisconsin Government Accountability Board; MARK GOTTLIEB, in his official capacity as Secretary of the Wisconsin Department of
Civil Action File No. _______________________
COMPLAINT
Case 2:11-cv-01128 Filed 12/13/11 Page 1 of 54 Document 1A. 001
2
Transportation; LYNNE JUDD, in her official capacity, as Administrator of the Division of Motor Vehicles; KRISTINA BOARDMAN, in her official capacity as Director of the Bureau of Field Services at the Division of Motor Vehicles; DONALD D. REINCKE his official capacity as Region Manager of the DMV Bureau of Field Services office for the Southwest Region; TRACY JO HOWARD, in her official capacity as Region Operational Manager of the DMV Bureau of Field Services office for the Southwest Region; SANDRA M. BRISCO in her official capacity as Region Manager of the DMV Bureau of Field Services office for the Southeast Region; BARNEY L. HALL, in his official capacity as Region Operational Manager of the DMV Bureau of Field Services office for the Southeast Region; DONALD J. GENIN, in his official capacity as Region Manager of the DMV Bureau of Field Services office for the Northeast Region; JILL LOUIS GEOFFROY, in her official capacity as Region Manager of the DMV Bureau of Field Services office for the North Central Region; PATRICIA A. NELSON, in her official capacity as Region Manager of the DMV Bureau of Field Services office for the Northwest Region; Defendants.
COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF
Plaintiffs Ruthelle Frank, Carl Ellis, Justin Luft, Dartric Davis, Barbara
Oden, Sandra Jashinski, Pamela Dukes, Anthony Sharp, Anthony Judd, Anna
Shea, Matthew Dearing, Max Kligman, Samantha Meszaros, Steve Kvasnicka,
Case 2:11-cv-01128 Filed 12/13/11 Page 2 of 54 Document 1A. 002
3
Sarah Lahti, Domonique Whitehurst by his mother and next friend Sabrena
Putnam, and Edward Hogan (collectively, “Plaintiffs”), who are eligible Wisconsin
voters, bring this action to protect their right to vote under the United States
Constitution and federal law. Wisconsin’s voter identification law, 2011
Wisconsin Act 23 (“the photo ID law”), will—as applied to these voters and the
classes of voters they represent—deprive them of their fundamental right to vote.
Plaintiffs, through their undersigned counsel, bring this Complaint against
Defendant Scott Walker, in his official capacity as Governor of the State of
Wisconsin (“Governor Walker”); Judge Thomas Barland, in his official capacity as
Chair of the Wisconsin Government Accountability Board (“GAB”); Judge Gerald
C. Nichol, in his official capacity as Vice Chair of the GAB; Judge Michael
Brennan, in his official capacity as a member of the GAB; Judge Thomas Cane, in
his official capacity as a member of the GAB; Judge David G. Deininger, in his
official capacity as a member of the GAB; Judge Timothy Vocke, in his official
capacity as a member of the GAB; Kevin J. Kennedy, in his official capacity as
Director and General Counsel of the GAB; Nathaniel E. Robinson, in his official
capacity as Administrator of the Elections Division of the GAB (“the GAB
Defendants”); Defendant Mark Gottlieb, in his official capacity as Secretary of the
Wisconsin Department of Transportation (“WisDOT”) (“Secretary Gottlieb”);
Defendant Lynne Judd, in her official capacity as the Administrator of the Division
Case 2:11-cv-01128 Filed 12/13/11 Page 3 of 54 Document 1A. 003
4
of Motor Vehicles (“DMV”) at WisDOT; Defendant Kristina Boardman, in her
official capacity as the Director of the Bureau of Field Services at the DMV;
Defendants Donald D. Reincke and Tracy Jo Howard, in their respective official
capacities as Region Manager and Region Operational Manager of the DMV
Bureau of Field Services office for the Southwest Region; Defendants Sandra M.
Brisco and Barney L. Hall in their respective official capacities as Region Manager
and Region Operational Manager of the DMV Bureau of Field Services office for
the Southeast Region; Defendant Donald J. Genin in his official capacity as Region
Manager of the DMV Bureau of Field Services office for the Northeast Region;
Defendant Jill Louis Geoffroy in her official capacity as Region Manager of the
DMV Bureau of Field Services office for the North Central Region; and Defendant
Patricia A. Nelson in her official capacity as Region Manager of the DMV Bureau
of Field Services office for the Northwest Region (“the WisDOT/DMV
Defendants”) (collectively, “Defendants”). Plaintiffs allege upon knowledge as to
their own conduct and observations and upon information and belief as to the
conduct of others:
NATURE OF THE ACTION
1. This action seeks declaratory and injunctive relief against Wisconsin state
officials’ enforcement of 2011 Wisconsin Act 23 (the “photo ID law”), which
requires voters in Wisconsin to present photo identification in order to cast their
Case 2:11-cv-01128 Filed 12/13/11 Page 4 of 54 Document 1A. 004
5
votes either in person at a polling place or by absentee ballot. This requirement
will be effective as of Wisconsin’s spring primary on February 21, 2012.
2. This lawsuit seeks a declaratory judgment that the photo ID law is
unconstitutional as applied to certain classes of eligible Wisconsin voters, and to
enjoin its enforcement with respect to these classes. The photo ID law imposes a
severe and undue burden on the fundamental right to vote under the Equal
Protection Clause of the Fourteenth Amendment of the United States Constitution;
violates the Twenty-Fourth and Fourteenth Amendments to the United States
Constitution as an unconstitutional poll tax; and violates the Equal Protection
Clause of the Fourteenth Amendment in arbitrarily refusing to accept certain
identification documents.
PARTIES
3. Each of the plaintiffs named in this Complaint is a citizen of the United
States, a resident of the State of Wisconsin, and is, or will be on or before February
21, 2012, a duly qualified elector eligible to vote in local, state, and federal
elections in Wisconsin. Every United States citizen age 18 or older who has
resided in an election district or ward in the State of Wisconsin for 28 consecutive
days before any election where the citizen offers to vote is an eligible elector
(hereinafter, “eligible Wisconsin voter”). Wis. Stat. § 6.02(1).
Case 2:11-cv-01128 Filed 12/13/11 Page 5 of 54 Document 1A. 005
6
4. Plaintiff Ruthelle Frank is an 84-year-old Caucasian resident of Brokaw,
Wisconsin, where she has served on the Village Board since 1996, and an eligible
voter registered to vote in Wisconsin. She has no accepted form of photo ID under
the photo ID law and lacks a certified copy of her birth certificate, which she needs
to prove citizenship to the Wisconsin DMV. Ms. Frank was born at her home in
Brokaw in 1927. Though she has never possessed a birth certificate, upon
information and belief, the state Register of Deeds has a record of her birth and
could produce a certified copy of her birth certificate at a charge. However, that
record bears an incorrect spelling of her maiden name: Wedepohl. The process to
amend a birth certificate is lengthy and costly, with some reports suggesting it
might require $200 or more. She has voted in every election since 1948 and
intends to vote in Wisconsin again next year.
5. Plaintiff Carl Ellis is a 52-year-old African-American/Caucasian resident
of Milwaukee, Wisconsin and an eligible voter. A veteran of the United States
Army, Mr. Ellis is currently living in a homeless shelter for veterans and has no
income or savings. Mr. Ellis has no accepted form of photo ID under the photo ID
law and lacks a certified copy of his birth certificate from the Illinois Department
of Public Health’s Vital Records Office. Given his financial circumstances, Mr.
Ellis cannot afford to pay for a certified copy of his Illinois birth certificate. He
does, however, possess a Veterans Identification Card (“VIC”), which is issued by
Case 2:11-cv-01128 Filed 12/13/11 Page 6 of 54 Document 1A. 006
7
the U.S. Department of Veterans Affairs and contains his name and photograph.
He intends to vote in Wisconsin next year.
6. Plaintiff Justin Luft is a 20-year-old Caucasian resident of Milwaukee,
Wisconsin and an eligible voter. He has no accepted form of photo ID under the
photo ID law. He has traveled twice to the Wisconsin DMV office to obtain a state
ID card, but was unable to do so due to the lack of a Social Security Card (“SSC”)
or any other accepted form of proof of identity. Mr. Luft has visited the Social
Security Administration (“SSA”) office five times with his mother in a reasonable,
but unsuccessful, effort to obtain a duplicate of his SSC. He does not have a car,
and thus, all the trips he has made to try to obtain an SSC and state ID card have
been by bus. He intends to vote in Wisconsin next year.
7. Plaintiff Dartric Davis is a 21-year-old African-American resident of
Milwaukee, Wisconsin and an eligible voter. Mr. Davis has no accepted form of
photo ID under the photo ID law and lacks a certified copy of his birth certificate
from the Illinois Department of Public Health’s Vital Records Office. He moved
to Wisconsin in 2011 and has never held a Wisconsin driver’s license or Wisconsin
state ID card. Mr. Davis has made several attempts to acquire a certified copy of
his birth certificate from Illinois, but has so far been unable to do so. He intends to
vote in Wisconsin next year.
Case 2:11-cv-01128 Filed 12/13/11 Page 7 of 54 Document 1A. 007
8
8. Plaintiff Barbara Oden is a 57-year-old, African-American resident of
Milwaukee, Wisconsin and an eligible voter. Ms. Oden has no accepted form of
photo ID under the photo ID law and lacks a certified copy of her birth certificate
and a Social Security Card (“SSC”). She needs these documents to prove
citizenship and identity, respectively, to the Wisconsin DMV in order to obtain a
free state ID card. She was denied a SSC by an employee at the Social Security
Administration office, who informed her that she must present a photo ID in order
to obtain an SSC. Ms. Oden has no income or savings. She intends to vote in
Wisconsin next year.
9. Plaintiff Sandra Jashinski is a 48-year-old, Caucasian and Native
American (Cherokee) resident of Milwaukee, Wisconsin and an eligible voter. Ms.
Jashinski has no accepted form of photo ID under the photo ID law and lacks a
Social Security Card (“SSC”), which she requires to prove her identity to the
Wisconsin DMV and obtain a free state ID card. An employee at the Social
Security Administration office informed Ms. Jashinski that she must present a
photo ID in order to obtain an SSC and then denied her an SSC when she could not
present a photo ID. As a homeless person, Ms. Jashinski also has no way to prove
a current Wisconsin residence street address. She intends to vote in Wisconsin
next year.
Case 2:11-cv-01128 Filed 12/13/11 Page 8 of 54 Document 1A. 008
9
10. Plaintiff Pamela Dukes is a 51-year-old African-American resident of
Milwaukee, Wisconsin and an eligible voter. She has none of the accepted forms
of photo ID under the photo ID law and lacks a certified copy of her birth
certificate from Cook County, Illinois, which she needs to prove citizenship to the
Wisconsin DMV. Ms. Dukes receives monthly Supplemental Security Income
(“SSI”) disability benefits, but has no other income or savings. She spends the
overwhelming majority of her SSI income on rent, and the remainder is devoted to
utility bills and other necessary living expenses. She is therefore unable to afford a
certified copy of her Illinois birth certificate. She intends to vote in Wisconsin
next year.
11. Plaintiff Anthony Sharp is a 19-year-old, African-American resident of
Milwaukee, Wisconsin and an eligible voter. He is living with his mother,
possesses none of the accepted forms of photo ID under the photo ID law, and
lacks a certified copy of his birth certificate, which he requires to prove citizenship
to the Wisconsin DMV. Mr. Sharp has no income or savings and is therefore
unable to afford a certified copy of his Wisconsin birth certificate. He intends to
vote in Wisconsin next year.
12. Plaintiff Anthony Judd is a 46-year-old, Caucasian resident of
Milwaukee, Wisconsin and an eligible voter. He has none of the accepted forms of
photo ID under the photo ID law and lacks a certified copy of his New York birth
Case 2:11-cv-01128 Filed 12/13/11 Page 9 of 54 Document 1A. 009
10
certificate, which he needs to prove citizenship to the Wisconsin DMV. Mr. Judd
has no regular income whatsoever, receives no government benefits, and has no
savings. He is therefore unable to afford a certified copy of his New York birth
certificate. He intends to vote in Wisconsin next year.
13. Plaintiff Anna Shea is a 20-year-old Caucasian junior at Lawrence
University, an accredited four-year private university in Appleton, Wisconsin, and
an eligible voter. She lacks all the accepted forms of photo ID under the photo ID
law, including a compliant student ID card. She currently holds an unexpired
driver’s license from the State of Colorado which she does not want to surrender.
Ms. Shea voted in the November 2010 general election and intends to vote in
Wisconsin next year.
14. Plaintiff Matthew Dearing is an 18-year-old African-American
freshman at Lawrence University, an accredited four-year private university in
Appleton, Wisconsin, and an eligible voter. He lacks all the accepted forms of
photo ID under the photo ID law, including a compliant student ID card. He
currently holds an unexpired driver’s license from the State of New York which he
does not want to surrender. Mr. Dearing intends to vote in Wisconsin next year
and will vote for the first time in 2012.
15. Plaintiff Max Kligman is a 19-year-old Caucasian freshman at
Lawrence University, an accredited four-year private university in Appleton,
Case 2:11-cv-01128 Filed 12/13/11 Page 10 of 54 Document 1A. 010
11
Wisconsin, and an eligible voter. He lacks all the accepted forms of photo ID
under the photo ID law, including a compliant student ID card. He currently holds
an unexpired driver’s license from the State of California which he does not want
to surrender. Mr. Kligman intends to vote in Wisconsin next year and will vote for
the first time in 2012.
16. Plaintiff Samantha Meszaros is an 18-year-old Caucasian freshman at
Carthage College, an accredited four-year private college in Kenosha, Wisconsin,
and an eligible voter. She lacks all the accepted forms of photo ID under the photo
ID law, including a compliant student ID card. She currently holds an unexpired
driver’s license from the State of Illinois which she does not want to surrender.
Ms. Meszaros intends to vote in Wisconsin next year and will vote for the first
time in 2012.
17. Plaintiff Steve Kvasnicka is a 20-year-old Caucasian junior at Carthage
College, an accredited 4-year private college in Kenosha, Wisconsin, and an
eligible voter. He lacks all the accepted forms of photo ID under the photo ID law,
including a compliant student ID card. He currently holds an unexpired driver’s
license from the State of Illinois which he does not want to surrender. Mr.
Kvasnicka intends to vote in Wisconsin next year.
18. Plaintiff Sarah Lahti is an 18-year-old Caucasian resident of Milwaukee,
Wisconsin, and a student at Milwaukee Area Technical College (“MATC”), where
Case 2:11-cv-01128 Filed 12/13/11 Page 11 of 54 Document 1A. 011
12
she is studying for her GED. She lacks all the accepted forms of photo ID under
the photo ID law, including a compliant student ID card. She currently holds an
unexpired driver’s license from the State of Tennessee which she does not want to
surrender. Ms. Lahti has an MATC student ID card with her name and photo. She
intends to vote in Wisconsin next year and will vote for the first time in 2012.
19. Plaintiff Domonique Whitehurst, by his mother and next friend Sabrena
Putnam, is a 17-year-old African-American and Native American (Blackfoot)
student at Milwaukee Area Technical College. He will turn 18 on February 4,
2012, prior to the spring primary. Mr. Whitehurst has an MATC ID card with his
name and photo. He has no other accepted form of photo ID under the photo ID
law. Mr. Whitehurst intends to vote in Wisconsin next year and will vote for the
first time in 2012.
20. Plaintiff Edward Hogan is a 21-year-old Caucasian resident of
Milwaukee, Wisconsin, and a student at Milwaukee Area Technical College
(“MATC”), where he is studying towards an associate’s degree. He lacks all the
accepted forms of photo ID under the photo ID law, including a compliant student
ID card. Mr. Hogan has an MATC student ID card with his name and photo. He
intends to vote in Wisconsin next year.
21. Defendant Scott Walker is the Governor of the State of Wisconsin. He
is sued in his official capacity only.
Case 2:11-cv-01128 Filed 12/13/11 Page 12 of 54 Document 1A. 012
13
22. Defendant Judge Thomas Barland is the Chair of the Wisconsin
Government Accountability Board (“GAB”). Defendant Judge Gerald C. Nichol is
the Vice Chair of the GAB. Defendants Judge Michael Brennan, Judge Thomas
Cane, Judge David G. Deininger, and Judge Timothy Vocke are the four remaining
members of the GAB. The GAB is charged with administering Wisconsin’s
election laws and has the authority to promulgate rules applicable to all
jurisdictions within the state for the purpose of interpreting or implementing the
laws regulating the conduct of elections or ensuring their proper administration.
Each of the GAB members listed above is sued in his official capacity only.
23. Defendant Kevin J. Kennedy is the Director and General Counsel of the
GAB, and Defendant Nathaniel E. Robinson is the Administrator of the Elections
Division of the GAB. They are sued in their official capacities only.
24. Defendant Mark Gottlieb is the Secretary of the Wisconsin Department
of Transportation (“WisDOT”), which includes the DMV. He is sued in his
official capacity only.
25. Defendant Lynne Judd is the Administrator of the Wisconsin DMV.
She is sued in her official capacity only.
26. Defendant Kristina Boardman is the Director of the Bureau of Field
Services at the Wisconsin DMV. She is sued in her official capacity only.
Case 2:11-cv-01128 Filed 12/13/11 Page 13 of 54 Document 1A. 013
14
27. Defendants Donald D. Reincke and Tracy Jo Howard are, respectively,
the Region Manager and Region Operational Manager of the DMV Bureau of
Field Services office for the Southwest Region. Defendants Sandra M. Brisco and
Barney L. Hall are, respectively, the Region Manager and Region Operational
Manager of the DMV Bureau of Field Services office for the Southeast Region.
Defendant Donald J. Genin is the Region Manager of the DMV Bureau of Field
Services office for the Northeast Region. Defendant Jill Louis Geoffroy is the
Region Manager of the DMV Bureau of Field Services office for the North Central
Region. Defendant Patricia A. Nelson is the Region Manager of the DMV Bureau
of Field Services office for the Northwest Region. The Bureau of Field Services is
the entity within DMV responsible for issuing driver’s licenses and identification
cards. They are sued in their official capacities only.
JURISDICTION AND VENUE
28. This case arises under the Constitution and laws of the United States.
This Court has subject matter jurisdiction of this action under 28 U.S.C. §§ 1331,
1343(3) & (4) and 42 U.S.C. § 1983.
29. Venue in this district is proper under 28 U.S.C. § 1391(b)(1), because at
least two of the Defendants reside in the Eastern District of Wisconsin and all the
Defendants reside in Wisconsin, as well as 28 U.S.C. § 1391(b)(2), because a
Case 2:11-cv-01128 Filed 12/13/11 Page 14 of 54 Document 1A. 014
15
substantial part of the events or omissions giving rise to the claims asserted herein
have occurred—and continue to occur—in the Eastern District of Wisconsin.
FACTS RELATED TO THE PHOTO ID LAW
30. Prior to the enactment of the photo ID law, no voter in any situation was
required to provide any form of proof of identity in order to cast a ballot, much less
one of a specified, limited number of photo IDs. Wisconsin voters only needed to
provide proof of residence to register to vote in certain situations, but never to cast
a ballot. When required, a range of documentation is accepted by Wisconsin
election officials to prove residency, including both photo and non-photo forms of
identification such as ID cards or licenses of any kind issued by any Wisconsin
governmental unit, utility bills, bank account statements, paycheck stubs, any
government-issued document, and residential leases.
31. The photo ID law, 2011 Wisconsin Act 23, was signed into law on May
25, 2011 and will be effective for all elections beginning in February 2012. Under
the new photo ID law, Wisconsin voters must present one form of photo
identification from a limited statutory list in order to cast a ballot.1 Unlike voter ID
laws in other states such as Indiana’s photo ID law, which was upheld against a
facial challenge in Crawford v. Marion County Election Board, 553 U.S. 181
1 This is in addition to, not instead of, the requirement to register to vote.
Case 2:11-cv-01128 Filed 12/13/11 Page 15 of 54 Document 1A. 015
16
(2008), Wisconsin’s photo ID law applies to both in-person voting and most
absentee voting.
32. The list of accepted photo IDs in Wisconsin is restricted to only the
following: (1) a Wisconsin driver’s license; (2) a Wisconsin state ID card issued by
the Wisconsin DMV; (3) an identification card issued by a U.S. uniformed service;
(4) a U.S. passport; (5) a certificate of U.S. naturalization that was issued not
earlier than 2 years before the date of an election at which it is presented; (6) an
unexpired receipt issued at the time of application for a Wisconsin driver’s license
or state ID card; (7) an identification card issued by a federally recognized Indian
tribe in Wisconsin2; and (8) an unexpired identification card issued by a Wisconsin
university or college accredited as defined in Wis. Stat. § 39.30(1)(d), which
contains the signature of the individual to whom it is issued, the issuance date, and
an expiration date not later than 2 years after the date of issuance (collectively,
“accepted photo ID”). Wis. Stat. § 5.02(6m).3 The first four accepted photo IDs
2 Upon information and belief, the federally recognized tribes in Wisconsin are: Bad River Band of Lake Superior Chippewa, Forest County Potawatomi, Ho-Chunk Nation, Lac Court Oreilles Band of Lake Superior Chippewa, Lac du Flambeau Band of Lake Superior Chippewa, Menominee Indian Tribe, Oneida Tribe of Indians, Red Cliff Band of Lake Superior Chippewa, St. Croix Chippewa Indians, Sokaogan Mole Lake Community, and Stockbridge Munsee Community. 3 A voter using a college or university ID card must also present separate proof of current enrollment. A discussion of the proof-of-enrollment requirement appears in a September 12th GAB Memorandum. See GAB Memorandum, “Photo ID Implementation Issues – Student ID Cards,” Sept. 12, 2011, at 3-4.
Case 2:11-cv-01128 Filed 12/13/11 Page 16 of 54 Document 1A. 016
17
must be unexpired or, if expired, must have expired after the date of the most
recent general election. Wis. Stat. § 5.02(6m)(a). A voter who is required to
surrender his or her operator’s license or driving receipt by a law enforcement
officer within 60 days of the date of an election may present an original copy of the
citation or notice in lieu of the license or receipt for a license, and this too
constitutes “accepted photo ID.” Wis. Stat. § 6.79(7).
33. The following is a non-exhaustive list of forms of identification that will
not be accepted for in-person or absentee voting: (1) any federal photo
identification not specifically listed, and thus excluding, among others, Veterans
Identification Cards (“VICs”); (2) any Wisconsin government-issued card, license,
or document other than a driver’s license or state ID card; (3) driver’s licenses and
state ID cards issued by another state government; (4) any local government-issued
card, license, or document; (5) technical college identification cards;4 (6) any
public or medical assistance benefit cards issued by any unit of government; and
(7) any governmental or non-governmental employer photo identification cards.
34. The only voters exempt from showing photo ID when voting in person
are electors with proof of confidential elector status due to the existence of a
protective order. Wis. Stat. § 6.79(6).
4 Certain Wisconsin legislators continue to oppose the use of technical college ID cards and to threaten their valid use as accepted photo ID. See infra.
Case 2:11-cv-01128 Filed 12/13/11 Page 17 of 54 Document 1A. 017
18
35. The only voters exempt from providing photo identification when
voting absentee are military, overseas, or confidential voters, Wis. Stat. §§ 6.34(1),
6.87(4)(b)1; voters in nursing homes, qualified community based residential
facilities, qualified adult family homes, and qualified residential care apartment
complexes who vote with special voting deputies, Wis. Stat. § 6.875(6)(c), or who
live in such a facility but special voting deputies are not sent, and who “submit[]
with [their] absentee ballot[s] a statement signed by the same individual who
witnesses voting of the ballot that contains the certification of an authorized
representative of the complex, facility, or home that the elector resides in the
complex, facility, or home and the complex, facility, or home is certified or
registered as required by law, that contains the name and address of the elector,
and that verifies that the name and address are correct,” Wis. Stat. § 6.87(4)(b)5;
voters who are indefinitely confined because of age, physical illness, or infirmity
or are disabled for an indefinite period and who, by signing a statement to that
effect, require that an absentee ballot be sent to the voter automatically for every
election,5 Wis. Stat. §§ 6.86(2)(a), 6.87(4)(b)2; and absentee voters who have not
changed their names or addresses since the prior time they voted absentee and who
previously provided proof of photo identification. Wis. Stat. § 6.87(4)(b)3.
5 In these situations, the elector must submit “with his or her absentee ballot a statement signed by the same individual who witnesses voting of the ballot which contains the name and address of the elector and verifies that the name and address are correct.” Wis. Stat. § 6.87(4)(b)2.
Case 2:11-cv-01128 Filed 12/13/11 Page 18 of 54 Document 1A. 018
19
36. Under Wis. Stat. § 227.24, as affected by 2011 Wis. Act 21 and as
amended by 2001 Wis. Act 32, an agency’s proposed emergency administrative
rule in final draft form is subject to gubernatorial review before it can be submitted
for review by the relevant Standing Committee and the Joint Committee for the
Review of Administrative Rules (“JCRAR”) and—barring a legislative override—
ultimately promulgated. Wis. Stat. § 227.24(1)(e)1g (“An agency may not file an
emergency rule with the legislative reference bureau . . . and an emergency rule
may not be published until the governor approves the emergency rule in writing.”);
see also Wis. Stat. § 227.185 (gubernatorial approval required for non-emergency
administrative rules); see also Executive Order No. 50. If JCRAR determines a
statement of policy or an interpretation of a statute is a rule, it may compel an
agency to issue an emergency rule and submit it to the Governor under Act 21.
Wis. Stat. § 227.26(2)(b). If the agency is so directed, then it must submit a
Statement of Scope for Governor Walker’s review and approval or rejection. Wis.
Stat. § 227.24(1)(e)1d. There is no binding statutory deadline by which the
Governor must respond to the submitting agency. Even if the Governor approves
the Statement of Scope, he/she may still reject an emergency rule when it is
subsequently submitted in final draft form. Wis. Stat. § 227.24(1)(e)1g.
37. Initially, the GAB interpreted the photo ID law as not permitting the use
of technical college ID cards at the polls. See GAB Memorandum, “Photo ID
Case 2:11-cv-01128 Filed 12/13/11 Page 19 of 54 Document 1A. 019
20
Implementation Issues – Student ID Cards,” Sept. 12, 2011, at 1-3. At its
November 9, 2011 meeting, the GAB reversed course and voted unanimously to
find that technical colleges are embraced by the photo ID law’s phrase “a . . .
college in this state that is accredited.” Wis. Stat. § 5.02(6m)(f). However, on
November 15, 2011, the JCRAR voted 6-4 to force the GAB to issue an emergency
rule codifying its interpretation of the photo ID law, a rule that must be submitted
to Governor Walker under Act 21 before the legislative review process. The
Statement of Scope for an emergency rule addressing the use of technical college
ID cards was submitted to Governor Walker on November 22, 2011, and Governor
Walker approved it on December 2, 2011. See GAB Memorandum, “Promulgation
of 3 Emergency Rules as Directed by JCRAR,” for Dec. 13, 2011 Meeting, at 1-3.
Ten days after the statement’s publication in the administrative register, GAB may
approve the proposed emergency rule and then draft the rule. Wis. Stat. §
227.24(1)(e)1d. However, it must then submit the emergency rule in final draft
form to Governor Walker, who may approve or reject it. Wis. Stat. §
227.24(1)(e)1g.
38. Governor Walker therefore exercises direct control over the
implementation of the photo ID law and the scope and degree of the burdens it
imposes on eligible Wisconsin voters, particularly technical college student voters
in Class 4 (see infra). Governor Walker also exercises veto power over any bill
Case 2:11-cv-01128 Filed 12/13/11 Page 20 of 54 Document 1A. 020
21
introduced to prevent the promulgation of an emergency rule. Wis. Stat. §
227.26(2)(i).
39. Even if Governor Walker approves the emergency rule concerning the
use of technical college ID cards, the Legislature may still block the emergency
rule by enacting a statute. During the November 15th meeting, several of the
JCRAR members who voted with the majority expressed their belief that the
Legislature did not intend to include technical college ID cards, because an
amendment designed to expressly authorize their use as accepted photo ID (in
addition to the statutory standard above) was defeated. At this time, the JCRAR’s
actions threaten to exclude technical college ID cards from the list of accepted
photo ID. Furthermore, even assuming Governor Walker and the Legislature do
not block the emergency rule, given publication and notice requirements,
Defendant Kennedy believes it is “unlikely” the rule will be effective before the
February 2012 primary election. See GAB Memorandum, “Promulgation of 3
Emergency Rules as Directed by JCRAR,” for Dec. 13, 2011 Meeting, at 2-3.
40. There were 382,006 students enrolled in the technical college system in
the 2009-2010 academic year, which constitutes 8.8% of Wisconsin’s total voting-
age population.6 Of these technical college students, 59,323 were minority
students. By sharp contrast, there were only 18,000 minority students in the entire
6 The 2010 Census dataset labeled “2010 Redistricting Data SF (PL 94-171)” was used to calculate this percentage.
Case 2:11-cv-01128 Filed 12/13/11 Page 21 of 54 Document 1A. 021
22
University of Wisconsin (“UW”) System in the same academic year. Indeed, there
were more minority students (20,916) at Milwaukee Area Technical College alone
than in the entire UW System.
41. Student voters at colleges or universities outside the technical college
system face their own challenges in casting a ballot. As the GAB’s Director and
General Counsel, Defendant Kennedy, has stated, no college or university student
ID cards in Wisconsin were in compliance with the specifications of the photo ID
law at the time of its passage. Many college and university ID cards lacked one or
more of the following required elements: the signature of the individual to whom
the ID card is issued, the issuance date, and an expiration date not later than 2
years after the date of issuance. In early September, the GAB voted to permit the
use of stickers to supply the missing required information and thereby bring non-
complaint student ID cards into compliance. See GAB Memorandum, “Photo ID
Implementation Issues – Student ID Cards,” Sept. 12, 2011, at 4-5. At its
September 27, 2011 meeting, members of the Wisconsin State Legislature’s
JCRAR expressed concerns about the use of stickers and communicated their
belief that the GAB could only lawfully implement this policy by adopting an
administrative rule. Following that meeting, Defendant Kennedy submitted a
memo to the GAB, urging it to reverse course. See GAB Memorandum,
“Administrative Rulemaking Process and Timeline,” Oct. 6, 2011, at 1-2. At its
Case 2:11-cv-01128 Filed 12/13/11 Page 22 of 54 Document 1A. 022
23
November 9, 2011 meeting, the GAB reaffirmed that colleges and universities
could bring their ID cards into compliance with stickers that included the missing
information. However, on November 15, 2011, the JCRAR voted 6-4 to force the
GAB to issue an emergency rule codifying the sticker supplementation policy, a
rule that will first be submitted to Governor Walker under 2011 Wis. Act 21. See
infra. Therefore, the JCRAR’s actions threaten to block the use of stickers to bring
student ID cards into compliance with the photo ID law.
42. In order to promulgate an emergency rule allowing colleges and
universities to take advantage of stickers as a cost-efficient fix for the problem, the
GAB must first submit a Statement of Scope for Governor Walker’s review and
approval or rejection. Wis. Stat. § 227.24(1)(e)1d. The GAB has not yet
submitted a Statement of Scope concerning this emergency rule to Governor
Walker. See GAB Memorandum, “Promulgation of 3 Emergency Rules as
Directed by JCRAR,” for Dec. 13, 2011 Meeting, at 2. As explained in detail by
Defendant Kennedy in his October 6, 2011 Memorandum, given certain notice and
publication timing requirements, as well as the lack of any binding deadline by
which the Governor must respond to the submitting agency, it will be impossible to
obtain legal clarity in a timely manner on the validity of using stickers to bring
student ID cards into compliance with the photo ID law. Wisconsin colleges and
universities require clarity on this issue, and the GAB needs to begin training poll
Case 2:11-cv-01128 Filed 12/13/11 Page 23 of 54 Document 1A. 023
24
workers well in advance of the February 21, 2012 Spring Primary. See GAB
Memorandum, “Administrative Rulemaking Process and Timeline,” Oct. 6, 2011,
at 2-4.7 Defendant Kennedy clarified in a recent memo to the GAB that it is
virtually certain that the rule will not be effect until after the February 2012
primary election. See GAB Memorandum, “Promulgation of 3 Emergency Rules
as Directed by JCRAR,” for Dec. 13, 2011 Meeting, at 3. In this manner,
Governor Walker exercises direct control over the implementation of the photo ID
law and the scope and degree of the burdens it imposes on eligible Wisconsin
voters, particularly student voters with out-of-state drivers’ licenses who are
members of Class 3 (see infra).
43. Forcing the GAB to issue administrative rules to implement a less
expensive fix for student ID cards and to ensure that technical college student ID
cards will be accepted has already resulted in an increased probability that
numerous colleges and universities will fail to issue compliant student ID cards by
the time of the February 21, 2012 Spring Primary.
7 In a memorandum for the GAB’s December 13, 2011 meeting, Defendant Kennedy wrote: “Staff remains concerned that JCRAR’s actions on these three matters, and the general exercise of §227.26(2), Wis. Stats., authority for day-to-day election administration issues, affect the ability of the G.A.B. to provide timely and uniform advice for the proper administration of elections, particularly with sufficient notice such that proper training of election officials may be conducted. As a result of 2011 Act 21, the process to complete promulgation of an emergency rule is more complicated and lengthy.” See GAB Memorandum, “Promulgation of 3 Emergency Rules as Directed by JCRAR,” for Dec. 13, 2011 Meeting, at 2.
Case 2:11-cv-01128 Filed 12/13/11 Page 24 of 54 Document 1A. 024
25
44. Technical college ID cards will need to conform to the same statutory
specifications, but these schools have no incentive to begin this time-consuming
and costly process without an assurance that such cards will in fact be usable for
voting purposes.
45. Upon information and belief, at least two Wisconsin private colleges
and one University of Wisconsin campus have started to issue, or stated they will
issue, student ID cards that comply with the photo ID law’s specifications. Upon
information and belief, one Wisconsin technical college has also said it will issue
student ID cards that comply with the photo ID law’s specifications, but as
discussed in paragraph ___, it is unclear whether any technical college ID cards
will be considered valid for voting,
46. Upon information and belief, a number of Wisconsin private colleges
and UW System campuses have either started to issue, or stated they will issue,
separate voting-only ID cards.
47. At the November 9, 2011 hearing, Defendant Kevin Kennedy stated that
the GAB will be reviewing every Wisconsin college or university ID card for its
conformity to the photo ID law and for its security. The GAB will then inform
municipal clerks and poll workers throughout Wisconsin as to which college or
university ID cards may be accepted at the polls and which may not be accepted.
Therefore, the validity of each voting-only ID card issued by a college or
Case 2:11-cv-01128 Filed 12/13/11 Page 25 of 54 Document 1A. 025
26
university will be determined by the GAB. Until the GAB approves a particular
college or university’s ID, given the uncertainty and policy reversals surrounding
the use of student ID cards to vote in Wisconsin, students at that school will have
no assurance that these separate voting-only ID cards will in fact be treated as
accepted photo ID for voting purposes in 2012.
48. Upon information and belief, other Wisconsin colleges and universities,
including but not limited to Carthage College, have expressed no plans to issue any
kind of voting-compliant student ID cards.
FACTS RELATED TO OBTAINING WISCONSIN PHOTO ID AND THE UNDERLYING DOCUMENTS REQUIRED BY WISCONSIN DMV
49. The Wisconsin DMV, a division within WisDOT, is required to issue
state ID cards free of charge if the applicant is a U.S. citizen, will be at least 18
years old by the next election, and requests that the card be provided free for
voting purposes. Wis. Stat. § 343.50(5)(a), as amended by 2011 Wis. Act 23 §
138.
50. There are 88 DMV offices currently operating in the State of Wisconsin,
and 3 new offices are scheduled to open in 2012 for a total of 91.
51. Upon information and belief, only one DMV office in Wisconsin has
any weekend hours, and the Madison Odana Renewal Center only processes
renewal license and ID card applications. It is open on Saturday from 8:00 a.m. to
Case 2:11-cv-01128 Filed 12/13/11 Page 26 of 54 Document 1A. 026
27
4:00 p.m. Upon information and belief, there is no DMV office in Wisconsin that
will process an original driver’s license or state ID card application on the
weekend.
52. Upon information and belief, no DMV office in Wisconsin stays open
later than 5:30 p.m.
53. There are no mobile DMV units in Wisconsin, capable of traveling to
and issuing driver’s licenses and state ID cards in remote areas of the state. Upon
information and belief, WisDOT has no plans to establish and deploy such mobile
units.
54. An individual who resides in Wisconsin and wishes to obtain a free
Wisconsin ID card for voting purposes must surrender any valid out-of-state
driver’s license he/she possesses. Wis. Stat. § 343.50(1)(b), as amended by 2011
Wis. Act 23 § 130.
55. A person with a driver’s license from another state who wishes to obtain
a Wisconsin driver’s license must pay a fee. Wis. Stat. § 343.21. There is no fee
waiver for obtaining a driver’s license even if that license will constitute the
individual’s sole form of accepted photo ID for voting purposes.
56. Wisconsin DMV offices require first-time applicants for state ID cards
and driver’s licenses to present: (1) proof of name and date of birth, (2) proof of
identity, (3) proof of citizenship, legal permanent resident or conditional resident
Case 2:11-cv-01128 Filed 12/13/11 Page 27 of 54 Document 1A. 027
28
status of the United States, or legal presence in the United States, (4) proof of
Wisconsin residency, and (5) a Social Security Number. Wis. Admin. Code Trans.
§ 102.15(2). “First-time applicants” encompass all persons who have not
previously held a Wisconsin driver’s license or ID card, even if they have such
licenses or cards from other states.
57. Applicants for a renewal, reinstatement, reissue, or duplicate8 Wisconsin
driver’s license or state ID card must present proof of identity, Wis. Admin. Code
Trans. § 102.15(2)(b), and may be required to present proof of citizenship, legal
permanent resident or conditional resident status of the United Status, or legal
presence in the United States. Id. § 102.15(2)(bm)2. Applicants for a renewal,
reinstatement, reissue, or duplicate Wisconsin driver’s license or state ID card
following certain actions, such as suspension, revocation, or cancellation of the
prior license or ID card, must also provide proof of name and date of birth and
proof of residency. Id. § 102.15(2)(c). Applicants for an original, renewal,
reinstatement, reissue, or duplicate driver’s license or state ID card may be
required to provide proof of residency if the applicant uses certain documents to
prove name and date of birth or identity, or if the documents do not have a current
residential address or do not include a current acceptable Wisconsin residential
address. Id. § 102.15(4m).
8 A replacement for a lost or stolen identification card (or drivers’ license) is called a “duplicate.”
Case 2:11-cv-01128 Filed 12/13/11 Page 28 of 54 Document 1A. 028
29
58. Voters who lack the necessary primary documents for an original,
renewal, or duplicate driver’s license or ID card often must travel to and interact
with multiple government offices and entities, such as the vital records office of
their birth state and the Social Security Administration, in order to obtain the
underlying documents needed to secure a state ID card. The process to obtain
documents required in order to obtain a photo ID card can be extremely complex,
particularly for individuals with lower levels of education and/or literacy, and
difficult for those without access to reliable transportation.
59. If voters lack one or more of the documents required in order to obtain a
Wisconsin state ID card, Defendants do not provide direct or individualized
assistance to the voters to obtain those documents.
60. Rules promulgated by WisDOT provide that for a driver’s license or
state ID card application satisfactory proof of name and date of birth includes the
following: (a) for a person born in Wisconsin, a certified copy of the person’s
Wisconsin birth certificate; (b) for a person born in another jurisdiction, other than
a Canadian province, a certified copy of his or her birth certificate or the equivalent
document from that other jurisdiction or a certificate of birth abroad issued by the
U.S. Department of State; (c) a U.S. passport; (d) an expired Wisconsin driver’s
license; (e) an expired Wisconsin ID card; (f) a U.S. certificate of naturalization
(which costs $345.00); (g) a certificate of U.S. citizenship (which costs $600.00);
Case 2:11-cv-01128 Filed 12/13/11 Page 29 of 54 Document 1A. 029
30
(h) a Native American ID card which was issued by a federally recognized tribe or
a band of a federally recognized tribe, issued in Wisconsin, which includes a
photograph and signature and has been approved by the Secretary of WisDOT; (i)
a court order under seal related to the adoption or divorce or to a name or gender
change that includes the person’s current full legal name, date of birth and in the
case of a name change or divorce order, the person’s prior name; (j) an armed
forces of the United States common access card or DD Form 2 ID card issued to
military personnel; (k) a Department of Homeland Security/Transportation
Security Administration (“DHS/TSA”) transportation worker identification
credential; or various immigration documents. Id. § 102.15(3).
61. If the applicant is unable to provide accepted proof of name and date of
birth and the documents are “unavailable” (defined in Wis. Admin. Code Trans. §
102.15(1) to exclude documents the applicant merely forgot to bring, as well as
lost or destroyed documents where a replacement original or certified copy may be
obtained upon request), then the applicant may petition the DMV Administrator,
Defendant Judd, to consider alternative documentation, or “extraordinary proof,”
of name and date of birth. Wis. Admin. Code Trans. § 102.15(3)(b). Defendant
Judd may delegate to her subordinates the authority to accept or reject such
extraordinary proof of name and date of birth, but there are no rules guiding that
Case 2:11-cv-01128 Filed 12/13/11 Page 30 of 54 Document 1A. 030
31
determination. Id. § 102.15(3)(c). Upon information and belief, no signage or
other readily visible notice announces that this alternative procedure even exists.
62. WisDOT rules provide that for a driver’s license or state ID card
application, satisfactory proof of citizenship, legal permanent resident status,
conditional resident status or legal presence includes a U.S. state or local
government-issued birth certificate, a valid U.S. passport, a certificate of U.S.
citizenship (which costs $600.00), a U.S. Certificate of naturalization (which costs
$345.00), a DHS/TSA transportation worker identification credential, and a variety
of immigration-related documents. Wis. Admin. Code Trans. § 102.15(3m).
Therefore, a first-time applicant for a Wisconsin ID card who lacks a U.S.
passport, has no immigration and naturalization history, and does not work for
DHS/TSA, must either produce a certified copy of his/her birth certificate to obtain
a Wisconsin photo ID card or pay $135.00 to obtain a U.S. passport. No
alternative procedure is available for persons unable to obtain this documentation.
63. Persons born in Wisconsin can obtain certified copies of their birth
certificates from the Wisconsin Vital Records Office in the Wisconsin Department
of Health Services or local registrars. Wisconsin charges $20.00 to locate and
Case 2:11-cv-01128 Filed 12/13/11 Page 31 of 54 Document 1A. 031
32
make a certified copy of a birth certificate, and the voter generally must bear his or
her own costs in obtaining the birth certificate.9
64. Fees to obtain birth certificates for persons born outside Wisconsin vary
and can be even higher than Wisconsin fees. Minnesota, for example, charges
$26.00 for a certified copy of a birth certificate.
65. Certain states’ and counties’ vital records offices require a government-
issued photo ID to obtain a certified copy of one’s birth certificate or otherwise set
forth a restrictive list of documents that must be shown in order to obtain a
certified copy of a birth certificate.
66. In many states, including Wisconsin, identification requirements
imposed on individuals differ in practice from the official statutory or regulatory
requirements. These requirements are often inconsistently or misleadingly stated
in publicly available documents, including on official websites. For example,
Wisconsin state law, Wis. Stat. § 69.21, states that state and local registrars “shall”
issue a certified copy of a birth certificate to a person “with a direct and tangible
interest” in the matter, who pays the required fee. Administrative rules confirm
that the “state registrar and local registrars shall provide certified documentary
9 The Milwaukee County Board of Supervisors included in its recently-adopted budget funding to provide a limited number of birth certificates free to county residents. Upon information and belief, that plan has not yet been implemented, and will not be adequate to provide free birth certificates for all county residents who need them.
Case 2:11-cv-01128 Filed 12/13/11 Page 32 of 54 Document 1A. 032
33
proof of a vital event for individual use to any person who requests that proof and
has a direct and tangible interest as defined in s. 69.20 (1), Stats.” Wis. Admin.
Code DHS § 142.04. However, the birth certificate application form requires that
the person requesting a certified copy of a birth certificate provide “acceptable
identification,” in the form of either a “current valid photo ID,” i.e., a Wisconsin or
out-of-state driver’s license or state photo ID card, or two forms of a limited list of
types of secondary identification documents. The secondary list includes only the
following: a government-issued employee I.D. card or badge with photo, a U.S.
passport, a checkbook or bankbook, a “major” credit card, a health insurance card,
a “recent” dated, signed lease, a “recent” utility bill, or “recent” traffic ticket. The
application available on the Wisconsin Department of Health Services’ (“DHS”)
website states that the identification requirement applies to both in-person and
mail-in applications. However, at the time of this filing, the DHS website and
numerous county registrar websites continued to state that that no identification is
required if the certificate copies are mailed. For instance, the birth certificate
application on the Dane County Register of Deeds website calls for “valid photo
ID,” but makes clear that this is only “required to pick up [the certificate] in
person.”
67. WisDOT rules provide that for a driver’s license or state ID card
application, satisfactory proof of identity includes only the following: (a) a valid
Case 2:11-cv-01128 Filed 12/13/11 Page 33 of 54 Document 1A. 033
34
driver’s license, including a license from another jurisdiction, except a Canadian
province; (b) military discharge papers; (c) a U.S. government and military
dependent ID card; (d) a valid photo identification card issued by Wisconsin or
another jurisdiction, except a Canadian province; (e) a marriage certificate or
certified copy of judgment of divorce; (f) a Social Security Card; (g) an additional
document listed in paragraph __ above that would be sufficient to prove name and
date of birth, but was not used to prove name and date of birth; or (h) a DHS/TSA
transportation worker identification credential. Wis. Admin. Code Trans. §
102.15(4). No alternative procedure is available for persons unable to obtain this
documentation.
68. For many low-income eligible Wisconsin voters, presenting a Social
Security Card (“SSC”) is the only method to prove identity to the Wisconsin
DMV. However, the Social Security Administration generally requires an
individual to provide evidence of identity in order to obtain an SSC. To obtain an
original SSC, the applicant must establish his/her U.S. citizenship, age, and
identity. For a replacement SSC, the applicant must provide documents to
establish his/her U.S. citizenship and identity. Identification requirements that
SSC applicants are told they must satisfy often differ in practice from the
requirements set forth in law.
Case 2:11-cv-01128 Filed 12/13/11 Page 34 of 54 Document 1A. 034
35
69. WisDOT rules provide that to obtain a driver’s license or state ID card,
an individual may be required to provide a form of proof that contains “a current
acceptable Wisconsin residence street address.” Id. § 102.15(4m).10 A document
listing a post office box or commercial mail receiving agency as the mailing
address is not acceptable. No alternative procedure is available for persons unable
to obtain this documentation.
70. Under official state regulations, satisfactory proof of residency includes
only the following: (a) a utility bill for water, gas, electric or landline phone
service which is at least 30 days old; (b) a paycheck or stub with the customer’s
name and address, and the employer’s name and address; (c) an account statement
at least 30 days old from a Wisconsin financial institution; or (d) mortgage
documents for a residential real property located in Wisconsin. Id. §
102.15(4m)(b), (c), (d), (f).11
71. The Wisconsin DMV’s website sets out a broader list of purportedly
acceptable documents to prove residency. The policy authorizing the use of such
documents has not, however, been promulgated as an official administrative rule
and, for the reasons discussed in Paragraph ___, may not be legally binding and
could be blocked or overridden by the actions of Governor Walker or the
10 The Wisconsin DMV website states that this is mandatory for all first-time applicants aged 18 years or older. 11 So numbered in original; no (a) or (e) are listed in the regulations.
Case 2:11-cv-01128 Filed 12/13/11 Page 35 of 54 Document 1A. 035
36
Legislature. Moreover, even the unofficial broader list fails to include such
documents as residential leases, homeless shelter verifications, and Internet bills.
PLAINTIFF CLASS ALLEGATIONS
CLASS 1
72. Class 1 is defined as: all eligible Wisconsin voters who lack accepted
photo ID and are unable for legal and/or practical reasons to obtain one or more of
the primary, underlying documents required to obtain a Wisconsin ID card for
voting purposes. These individuals are either legally barred from obtaining one or
more of the primary documents needed to obtain a Wisconsin ID card or have
made a reasonable but unsuccessful attempt to acquire one or more of the
necessary documents.
73. This class of eligible Wisconsin voters who lack accepted photo ID
includes—but is not limited to—individuals who must prove citizenship to the
Wisconsin DMV with a birth certificate, lack certified copies of their birth
certificates, and are unable to obtain birth certificates due to their birth-state’s
identification requirements; individuals who must prove citizenship to the DMV
with a birth certificate, but who were never issued birth certificates; individuals
who lack, and cannot obtain, proof of Wisconsin residency under Wis. Admin.
Code Trans. § 102.15(4m); and individuals who lack and cannot obtain any of the
Case 2:11-cv-01128 Filed 12/13/11 Page 36 of 54 Document 1A. 036
37
forms of proof of identity accepted by the Wisconsin DMV, such as a Social
Security Card. This class also includes eligible Wisconsin voters who are unable
to obtain a free Wisconsin ID card due to the misapplication of applicable laws and
regulations or the imposition of incorrect or excessive documentary requirements
upon individuals by the Wisconsin DMV and/or by the local, state, or federal entity
responsible for issuing a document required to obtain a Wisconsin state ID card or
driver’s license.
74. This class is sufficiently numerous such that joinder of all members is
impracticable. There are questions of law and questions of fact that are common to
the class. Class 1 Representatives Ruthelle Frank, Justin Luft, Dartric Davis,
Barbara Oden, and Sandra Jashinski’s claims are typical of the claims of the class,
and the representatives will fairly and adequately protect the interests of the class.
75. Prosecuting separate actions by individual class members would create a
risk of: (a) inconsistent or varying adjudications with respect to individual class
members that would establish incompatible standards of conduct for Defendants;
or (b) adjudications with respect to individual class members that, as a practical
matter, would be dispositive of the interests of the other members not parties to the
individual adjudications or would substantially impair or impede their ability to
protect their interests. Additionally, by denying the right to vote to eligible
Wisconsin voters who have been unable to obtain one or more of the primary
Case 2:11-cv-01128 Filed 12/13/11 Page 37 of 54 Document 1A. 037
38
documents needed for a Wisconsin state ID card, Defendants have acted or refused
to act on grounds that apply generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the class as a whole.
CLASS 2
76. Class 2 is defined as: all eligible Wisconsin voters who lack accepted
photo ID and for whom the costs incurred in obtaining a Wisconsin state ID card,
such as obtaining a certified and accurate copy of a birth certificate to prove
citizenship to the Wisconsin DMV and in traveling to the nearest Wisconsin DMV
office, would constitute a severe financial burden.
77. According to the 2005-2009 American Community Survey (“ACS”) 5-
Year Estimates, 357,912 Wisconsin residents ages 18 to 64 and 57,900 Wisconsin
residents ages 65 years and older had incomes below 100 percent of the federal
poverty level (“FPL”), and 161,664 Wisconsin residents ages 18 to 64 and 16,183
Wisconsin residents ages 65 years and older had incomes below 50 percent of the
FPL.12
78. According to a study conducted by the Wisconsin Department of
Children and Families, in November 2008 there were 12,608 families who were
receiving food stamps in the State of Wisconsin but had zero earned or unearned
income.
12 These figures are estimates with the following margins of error: +/- 0.1%, +/- 0.1%, +/- 0.1%, and +/- 0.3%, respectively.
Case 2:11-cv-01128 Filed 12/13/11 Page 38 of 54 Document 1A. 038
39
79. The photo ID law will force a significant percentage of eligible, poor
Wisconsin voters to make a choice between, on the one hand, paying for a birth
certificate and/or incurring significant travel costs in order to acquire a state ID
card and, on the other hand, paying for necessities. This constitutes an undue and
unconstitutional burden under the Equal Protection Clause of the Fourteenth
Amendment.
80. This class is sufficiently numerous such that joinder of all members is
impracticable. There are questions of law and questions of fact that are common to
the class. Class 2 Representatives Carl Ellis, Pamela Dukes, Anthony Sharp, and
Anthony Judd’s claims are typical of the claims of the class, and the representative
parties will fairly and adequately protect the interests of the class.
81. Prosecuting separate actions by individual class members would create a
risk of: (a) inconsistent or varying adjudications with respect to individual class
members that would establish incompatible standards of conduct for Defendants;
or (b) adjudications with respect to individual class members that, as a practical
matter, would be dispositive of the interests of the other members not parties to the
individual adjudications or would substantially impair or impede their ability to
protect their interests. Additionally, given that Defendants are forcing low-income,
eligible Wisconsin voters to spend scarce financial resources in order to cast their
votes, Defendants have acted or refused to act on grounds that apply generally to
Case 2:11-cv-01128 Filed 12/13/11 Page 39 of 54 Document 1A. 039
40
the class, so that final injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole.
CLASS 3
82. Class 3 is defined as all Wisconsin voters who are residents of
Wisconsin for voting purposes, who lack any accepted photo ID, and who would
be forced to surrender an out-of-state driver’s license in order to obtain a free
Wisconsin ID card for voting purposes.
83. This class includes—but is not limited to—currently enrolled students at
accredited Wisconsin colleges or universities whose colleges or universities have
not issued compliant student ID cards, and who would be forced to surrender out-
of-state driver’s licenses in order to obtain free Wisconsin ID cards that they need
in order to vote.
84. This surrender rule imposes a material requirement on voters who wish
to obtain a free state ID card for voting purposes by forcing persons who are
Wisconsin residents for voting purposes, but who possess out-of-state driver’s
licenses, to choose between surrendering their driving privileges to obtain a free
Wisconsin state ID card, paying a fee for a Wisconsin driver’s license, or losing
their right to vote.
85. This class is sufficiently numerous such that joinder of all members is
impracticable. There are questions of law and questions of fact that are common to
Case 2:11-cv-01128 Filed 12/13/11 Page 40 of 54 Document 1A. 040
41
the class. Class 3 Representatives Anna Shea, Matthew Dearing, Max Kligman,
Samantha Meszaros, Steve Kvasnicka, and Sarah Lahti’s claims are typical of the
claims of the class, and the representative parties will fairly and adequately protect
the interests of the class.
86. Prosecuting separate actions by individual class members would create a
risk of: (a) inconsistent or varying adjudications with respect to individual class
members that would establish incompatible standards of conduct for Defendants;
or (b) adjudications with respect to individual class members that, as a practical
matter, would be dispositive of the interests of the other members not parties to the
individual adjudications or would substantially impair or impede their ability to
protect their interests. Defendants have acted or refused to act on grounds that
apply generally to the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a whole.
CLASS 4
87. Class 4 is defined as: all currently enrolled students at accredited
Wisconsin technical colleges who intend to vote in Wisconsin in 2012 and who
lack accepted photo ID.
88. This class is sufficiently numerous such that joinder of all members is
impracticable. There are questions of law and questions of fact that are common to
the class. Class 4 Representatives Sarah Lahti, Domonique Whitehurst, and
Case 2:11-cv-01128 Filed 12/13/11 Page 41 of 54 Document 1A. 041
42
Edward Hogan’s claims are typical of the claims of the class, and the
representative parties will fairly and adequately protect the interests of the class.
89. Prosecuting separate actions by individual class members would create a
risk of: (a) inconsistent or varying adjudications with respect to individual class
members that would establish incompatible standards of conduct for Defendants;
or (b) adjudications with respect to individual class members that, as a practical
matter, would be dispositive of the interests of the other members not parties to the
individual adjudications or would substantially impair or impede their ability to
protect their interests. Additionally, Defendants have acted or refused to act on
grounds that apply generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the class as a whole.
CLASS 5
90. Class 5 is defined as: all eligible Wisconsin voters who lack accepted
photo ID, must prove citizenship to the DMV office and can only do so with
certified and accurate copies of their birth certificates, lack certified and accurate
copies of their birth certificates, and will need to pay one or more fees to obtain
certified and accurate copies of their birth certificates.
91. This class is sufficiently numerous such that joinder of all members is
impracticable. There are questions of law and questions of fact that are common to
the class. Class 5 Representatives Ruthelle Frank, Carl Ellis, Pamela Dukes,
Case 2:11-cv-01128 Filed 12/13/11 Page 42 of 54 Document 1A. 042
43
Anthony Sharp, and Anthony Judd’s claims are typical of the claims of the class,
and the representative parties will fairly and adequately protect the interests of the
class.
92. Prosecuting separate actions by individual class members would create a
risk of: (a) inconsistent or varying adjudications with respect to individual class
members that would establish incompatible standards of conduct for Defendants;
or (b) adjudications with respect to individual class members that, as a practical
matter, would be dispositive of the interests of the other members not parties to the
individual adjudications or would substantially impair or impede their ability to
protect their interests. Additionally, by forcing eligible Wisconsin voters to pay a
fee in order to obtain a required primary document for a state ID card, Defendants
have acted or refused to act on grounds that apply generally to the class, so that
final injunctive relief or corresponding declaratory relief is appropriate respecting
the class as a whole.
CLASS 6
93. Class 6 includes all veterans of a uniformed service of the United States
who are eligible Wisconsin voters, lack accepted photo ID, and possess a Veterans
Identification Card (“VIC”) issued by the U.S. Department of Veterans Affairs.
94. This class is sufficiently numerous such that joinder of all members is
impracticable. There are questions of law and questions of fact that are common to
Case 2:11-cv-01128 Filed 12/13/11 Page 43 of 54 Document 1A. 043
44
the class. Plaintiffs and Class 6 Representative Carl Ellis’s claim is typical of the
claims of the class, and Mr. Ellis will fairly and adequately protect the interests of
the class.
95. Prosecuting separate actions by individual class members would create a
risk of: (a) inconsistent or varying adjudications with respect to individual class
members that would establish incompatible standards of conduct for Defendants;
or (b) adjudications with respect to individual class members that, as a practical
matter, would be dispositive of the interests of the other members not parties to the
individual adjudications or would substantially impair or impede their ability to
protect their interests. Additionally, by refusing to accept U.S. government-issued
Veterans Identification Cards, Defendants have acted or refused to act on grounds
that apply generally to the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a whole.
CLAIMS
COUNT ONE: Violation of the Equal Protection Clause of the Fourteenth
Amendment [Class 1]
96. The allegations contained in Paragraphs ___ through ___ are hereby
incorporated in Count One of the complaint as if set forth herein.
Case 2:11-cv-01128 Filed 12/13/11 Page 44 of 54 Document 1A. 044
45
97. The Equal Protection Clause prohibits the imposition of severe burdens
on the right to vote unless they are narrowly drawn to advance a state interest of
compelling importance. Burdick v. Takushi, 504 U.S. 428, 434 (1992).
98. Eligible Wisconsin voters in Class 1 lack one or more primary
documents required to obtain a Wisconsin state ID card and are or have been
unable to obtain them. Members of Class 1 are subjected to multiple regulatory
and practical barriers to obtaining a Wisconsin state ID card.
99. Since voters in this class are unable to obtain one or more of the
necessary primary documents, they cannot obtain a photo ID and therefore cannot
vote in Wisconsin.
100. The burden imposed on these class members’ fundamental right to vote
is extremely severe—in many cases, rising to the level of a total deprivation of the
right to vote. This burden is not narrowly tailored to any compelling governmental
interest.
101. Accordingly, the photo ID law imposes an undue burden as to this
class of eligible Wisconsin voters and therefore violates the Equal Protection
Clause of the Fourteenth Amendment as applied to them.
COUNT TWO: Violation of the Equal Protection Clause of the Fourteenth
Amendment [Class 2]
Case 2:11-cv-01128 Filed 12/13/11 Page 45 of 54 Document 1A. 045
46
102. The allegations contained in Paragraphs ___ through ___ are hereby
incorporated in Count Three of the complaint as if set forth herein.
103. The Equal Protection Clause prohibits the imposition of severe burdens
on the right to vote unless they are narrowly drawn to advance a state interest of
compelling importance. Burdick v. Takushi, 504 U.S. 428, 434 (1992).
104. For the hundreds of thousands of eligible low-income and poor
Wisconsin voters, paying a fee to obtain a certified and accurate copy of a birth
certificate and/or incurring travel costs in order to obtain a Wisconsin ID card
constitutes a severe burden on the right to vote.
105. The burden imposed on these voters is severe and not narrowly tailored
to advance any compelling governmental interest.
106. Accordingly, the photo ID law imposes an undue burden on members
of Class 2 and, therefore, violates the Equal Protection Clause of the Fourteenth
Amendment as applied to Class 2.
COUNT THREE: Violation of the Twenty-Fourth Amendment and Equal
Protection Clause of the Fourteenth Amendment [Class 3]
107. The allegations contained in Paragraphs ___ through ___ are hereby
incorporated in Count Four of the complaint as if set forth herein.
Case 2:11-cv-01128 Filed 12/13/11 Page 46 of 54 Document 1A. 046
47
108. The Twenty-Fourth Amendment to the United States Constitution
provides: “The right of citizens of the United States to vote in any primary or other
election for President or Vice President, for electors for President or Vice
President, or for Senator or Representative in Congress, shall not be denied or
abridged by the United States or any state by reason of failure to pay any poll tax
or other tax.”
109. The Twenty-Fourth Amendment prohibits states from conditioning the
right to vote in federal elections on the payment of a tax or fee, or imposing on
federal voters an additional condition—or material requirement—that would not
apply if they paid such a tax or fee. Harman v. Forssenius, 380 U.S. 528, 538-42
(1965). Poll taxes on the right to vote in state elections are unconstitutional under
the Equal Protection Clause of the Fourteenth Amendment. Harper v. Virginia
State Bd. of Elections, 383 U.S. 663, 666-68 (1966).
110. Wisconsin residents who possess and wish to retain an out-of-state
driver’s license and who lack all the other accepted forms of photo ID will not be
able to obtain free Wisconsin ID cards for voting purposes without surrendering
their out-of-state driver’s licenses.
111. The compulsory surrender of an out-of-state driver’s license constitutes
a material requirement imposed on an eligible voter who refuses to forfeit his/her
right to vote without paying an unconstitutional poll tax.
Case 2:11-cv-01128 Filed 12/13/11 Page 47 of 54 Document 1A. 047
48
112. Therefore, as applied to Class 3, the photo ID law violates the Twenty-
Fourth Amendment and the Equal Protection Clause of the Fourteenth Amendment
of the United States Constitution.
COUNT FOUR: Violation of the Equal Protection Clause of the Fourteenth
Amendment [Class 4]
113. The allegations contained in Paragraphs ___ through ___ are hereby
incorporated in Count Five of the complaint as if set forth herein.
114. The Equal Protection Clause prohibits the imposition of severe burdens
on the right to vote unless they are narrowly drawn to advance a state interest of
compelling importance, and requires that any state election law which imposes
reasonable, nondiscriminatory restrictions on the right to vote be justified by the
state’s important regulatory interests. Burdick v. Takushi, 504 U.S. 428, 434
(1992).
115. The GAB has construed the photo ID law to authorize the use of
accredited technical college ID cards for voting purposes; however, the ultimate
disposition of this rule has been thrown into considerable doubt as described
herein. Even though student ID cards from all other accredited colleges and
universities in Wisconsin will be accepted, certain Wisconsin legislators believe
Case 2:11-cv-01128 Filed 12/13/11 Page 48 of 54 Document 1A. 048
49
technical college ID cards are excluded under the photo ID law and the
administrative review process threatens to result in that exclusion.
116. This differential treatment of student ID cards from accredited 2-year
colleges and student ID cards from accredited technical colleges is wholly
arbitrary, not narrowly drawn to advance a compelling state interest, and not even
justified by a merely important regulatory interest.
117. Accordingly, since it lacks a rational basis, the exclusion of technical
college ID cards is unconstitutional under the Equal Protection Clause of the
Fourteenth Amendment.
COUNT FIVE: Violation of the Twenty-Fourth Amendment and Equal
Protection Clause of the Fourteenth Amendment [Class 5]
118. The allegations contained in Paragraphs ___ through ___ are hereby
incorporated in Count Six of the complaint as if set forth herein.
119. The Twenty-Fourth Amendment to the United States Constitution
provides: “The right of citizens of the United States to vote in any primary or other
election for President or Vice President, for electors for President or Vice
President, or for Senator or Representative in Congress, shall not be denied or
abridged by the United States or any state by reason of failure to pay any poll tax
or other tax.”
Case 2:11-cv-01128 Filed 12/13/11 Page 49 of 54 Document 1A. 049
50
120. The Twenty-Fourth Amendment prohibits states from conditioning the
right to vote in federal elections on the payment of a tax or fee, or imposing on
federal voters an additional condition—or material requirement—that would not
apply if they paid such a tax or fee. Harman v. Forssenius, 380 U.S. 528, 538-42
(1965). Poll taxes on the right to vote in state elections are unconstitutional under
the Equal Protection Clause of the Fourteenth Amendment. Harper v. Virginia
State Bd. of Elections, 383 U.S. 663, 666-68 (1966).
121. The fee(s) required to obtain a certified and accurate copy of one’s
birth certificate constitutes an unconstitutional poll tax for eligible Wisconsin
voters in this class.
122. Accordingly, the photo ID law is unconstitutional as applied to
members of Class 5.
COUNT SIX: Violation of the Equal Protection Clause of the Fourteenth
Amendment [Class 6]
123. The allegations contained in Paragraphs ___ through ___ are hereby
incorporated in Count Eight of the complaint as if set forth herein.
124. Veterans Identification Cards (“VICs”) contain the name and photo of
the veteran and are issued by a U.S. government agency.
Case 2:11-cv-01128 Filed 12/13/11 Page 50 of 54 Document 1A. 050
51
125. The photo ID law does not permit the use of Veterans Identification
Cards to cast a ballot.
126. This differential treatment of Veterans Identification Cards issued by
the U.S. Department of Veterans Affairs and military ID cards issued by a U.S.
uniformed service (including the United States Army, the United States Marine
Corps, the United States Navy, the United States Air Force, the United States
Coast Guard, the United States Public Health Services Commissioned Corps, and
the National Oceanic and Atmospheric Administration Commissioned Corps),
which are accepted as photo ID for voting purposes, is wholly arbitrary and lacks a
rational basis.
127. Accordingly, the exclusion of Veterans Identification Cards from the
list of accepted photo IDs is unconstitutional under the Equal Protection Clause of
the Fourteenth Amendment.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully pray that:
(i) The Court declare the photo ID law unconstitutional as applied to Class 1
under the Equal Protection Clause of the Fourteenth Amendment and
enjoin the photo ID law as applied to members of Class 1;
Case 2:11-cv-01128 Filed 12/13/11 Page 51 of 54 Document 1A. 051
52
(ii) The Court declare the photo ID law unconstitutional as applied to Class 2
under the Equal Protection Clause of the Fourteenth Amendment and
enjoin the photo ID law as applied to members of Class 2;
(iii) The Court declare the photo ID law unconstitutional as applied to Class 3
under the Twenty-Fourth Amendment and the Equal Protection Clause of
the Fourteenth Amendment and enjoin the photo ID law as applied to
members of Class 3;
(iv) The Court declare the photo ID law unconstitutional as applied to Class 4
under the Equal Protection Clause of the Fourteenth Amendment and
enjoin the photo ID law as applied to members of Class 4;
(v) The Court declare the photo ID law unconstitutional as applied to Class 5
under the Twenty-Fourth Amendment and the Equal Protection Clause of
the Fourteenth Amendment and enjoin the photo ID law as applied to
members of Class 5;
(vi) The Court declare the photo ID law unconstitutional as applied to Class 6
under the Equal Protection Clause of the Fourteenth Amendment and
enjoin the photo ID law as applied to members of Class 6;
(vii) Award Plaintiffs their reasonable attorneys’ fees and costs pursuant to 42
U.S.C. § 1988 and Fed. R. Civ. P. 54(d); and
(viii) Grant such other and further relief as this Court deems just.
Case 2:11-cv-01128 Filed 12/13/11 Page 52 of 54 Document 1A. 052
53
Respectfully submitted this 13th day of December, 2011,
/s Laurence J. Dupuis Laurence J. Dupuis Bar No.: 1029261 Karyn Rotker Bar No.: 1007719 American Civil Liberties Union of Wisconsin
207 E. Buffalo Street, Suite 325 Milwaukee, WI 53202-5774
Phone: (414) 272-4032 Fax: (414) 272-0182 [email protected]
M. Laughlin McDonald* Jon Sherman* Nancy Abudu* American Civil Liberties Union Foundation, Inc.
230 Peachtree Street, Suite 1440 Atlanta, GA 30303 Phone: (404) 523-2721 Fax: (404) 653-0331 [email protected]
[email protected] [email protected] Karen E. Cunningham**
Heather Maria Johnson** National Law Center for Homelessness & Poverty 1411 K Street NW, Suite 1400
Washington, DC 20005 Phone: (202) 638-2535
Fax: (202) 628-2737 [email protected]
Case 2:11-cv-01128 Filed 12/13/11 Page 53 of 54 Document 1A. 053
54
*Attorney Admission Application Pending **Attorney Admission Application and Motion for Fee Waiver Pending
Case 2:11-cv-01128 Filed 12/13/11 Page 54 of 54 Document 1A. 054
IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF WISCONSIN
____________________________________________
BETTYE JONES; LEAGUE OF UNITED LATIN AMERICANCITIZENS (LULAC) OF WISCONSIN; CROSS LUTHERANCHURCH; MILWAUKEE AREA LABOR COUNCIL,AFL-CIO; and WISCONSIN LEAGUE OF YOUNG VOTERSEDUCATION FUND;
Plaintiffs,
v. Case No.
JUDGE DAVID G. DEININGER, JUDGE MICHAEL BRENNAN,JUDGE GERALD C. NICHOL, JUDGE THOMAS BARLAND,JUDGE THOMAS CANE, KEVIN J. KENNEDY, andNATHANIEL E. ROBINSON, all in their official capacities,
Defendants.
COMPLAINT
This lawsuit involves the most fundamental of rights guaranteed citizens in a
representative democracy — the right to vote. Specifically, Plaintiffs challenge 2011 Wisconsin
Act 23 (“Act 23”), which requires registered voters to show one of a limited number of specific,
government-issued photo identification cards in order to cast a ballot and have it counted in a
Wisconsin election. For a variety of reasons, this law will disproportionately injure African-
American and Latino voters, who are much less likely than other members of the electorate to
possess the required forms of identification and also face disproportionately greater burdens in
obtaining such identification. As a result, African-Americans and Latinos are far more likely
than other Wisconsin citizens to have their right to vote denied or abridged by Act 23. In short,
Act 23 is a voter suppression law that burdens African-American and Latino voters most
heavily, results in them having “less opportunity than other members of the electorate to
Case 2:12-cv-00185-LA Filed 02/23/12 Page 1 of 15 Document 1A. 055
2
participate in the political process and to elect representatives of their choice,” and, thereby,
constitutes a denial and abridgement of their right to vote in violation of Section 2 of the Voting
Rights Act of 1965, as amended, 42 U.S.C. § 1973.
JURISDICTION AND VENUE
1. This case is brought pursuant to Section 2 of the Voting Rights Act of 1965, as
amended, 42 U.S.C. § 1973, as well as pursuant to 42 U.S.C. § 1983. This Court has
jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(4), 2201(a), and 2202.
2. Venue is proper pursuant to 28 U.S.C. § 1391(b).
PARTIES
3. Plaintiff Bettye Jones is a citizen of the United States, a resident of Brookfield,
Wisconsin, and eligible to register and vote in Wisconsin elections. Ms. Jones is African-
American. She has been a regular voter since the 1950s. Ms. Jones was born at home in the
State of Tennessee, and lived and voted for most of her adult life in Cleveland, Ohio. She
moved to Wisconsin last year to live with her daughter. Although Ms. Jones has many forms of
identification (including a valid and current Ohio driver’s license), she lacks any of the forms of
identification required by Act 23 in order to vote. Moreover, she cannot obtain the required
identification because she lacks the certified birth certificate required by law to obtain a
Wisconsin-issued driver’s license or other photo identification that would allow her to vote in
Wisconsin. Ms. Jones and her daughter have devoted substantial time and expense in attempting
to obtain the required certified birth certificate, without success. Indeed, the State of Tennessee
has advised Ms. Jones that, after a “thorough search,” it has been unable to find any certificate of
her birth. Because she is unable to present or obtain any of the forms of identification required
to vote under Act 23, Ms. Jones has been and will continue to be prevented from casting a ballot
that is counted in any Wisconsin election.
Case 2:12-cv-00185-LA Filed 02/23/12 Page 2 of 15 Document 1A. 056
3
4. The League of United Latin American Citizens (“LULAC”) of Wisconsin has its
business address at 5012F W. Ashland Way, Franklin, Wisconsin 53132. LULAC has
approximately 115,000 members throughout the United States and Puerto Rico. It is the largest
and oldest Hispanic organization in the United States. LULAC advances the economic
condition, educational attainment, political influence, health, housing and civil rights of all
Hispanic nationality groups through community-based programs operating at more than 900
LULAC councils nationwide. LULAC of Wisconsin is comprised of ten Adult, Young Adult,
and Youth Councils located throughout the State of Wisconsin. LULAC of Wisconsin’s
members and constituents include voting-age Latino citizens of Wisconsin who are far are more
likely than other members of the electorate to be discouraged, burdened, deterred, harassed, and
in many instances prevented by Act 23 from casting a ballot that is counted. LULAC of
Wisconsin must now divert substantial resources and attention from other critical missions to
deal with the adverse impacts of Act 23 on its members and constituents, and to assist them in
attempting to surmount the hurdles to voting imposed by Act 23.
5. Cross Lutheran Church, founded in 1870, is located in the City of Milwaukee’s
Lindsey Heights Neighborhood at 1821 North 16th Street, Milwaukee, Wisconsin 53205. In the
words of its Visioning Statement, “[a]s a converted community, we are challenged by God’s
Word to invite, affirm, nurture and empower people to be a transforming force for God’s vision
of justice.” Among its many outreach programs, Cross Lutheran Church seeks to assist
members of its congregation and the surrounding community in activities to make their voices
heard. That is the basis on which Cross Lutheran Church has undertaken additional ministry
services and activities made necessary by Act 23. Over 70% of its members are African-
Americans, many of whom are voting-age citizens of Wisconsin who are far more likely than
other members of the electorate to be discouraged, burdened, deterred, harassed, and in many
Case 2:12-cv-00185-LA Filed 02/23/12 Page 3 of 15 Document 1A. 057
4
instances prevented by Act 23 from casting a ballot that is counted. The residents of the
surrounding community served by Cross Lutheran Church are also predominantly African-
Americans and Latinos, many of whom are voting-age citizens of Wisconsin who are far are
more likely than other members of the electorate to be discouraged, burdened, deterred,
harassed, and in many instances prevented by Act 23 from casting a ballot that is counted. Cross
Lutheran Church must now divert substantial resources and attention away from other critical
missions to deal with the adverse impacts of Act 23 on the members of its congregation, the
residents of the surrounding community it serves, and other constituents, and to educate them
about and assist them in attempting to surmount the hurdles to voting imposed by Act 23.
6. The Milwaukee Area Labor Council, AFL-CIO, is an incorporated association
with its business address at 633 South Hawley Road, Suite 110, Milwaukee, Wisconsin 53214.
It represents approximately 52,000 dues-paying members of more than 140 Milwaukee-area
locals and parent unions. The Labor Council partners with, and includes members from, the
Coalition of Black Trade Unionists, which represents the voices of African-American workers
within the trade union movement, and the Labor Council for Latin American Advancement, the
official Latino constituency group of the AFL-CIO. Many of the members and constituents of
the Milwaukee Area Labor Council are voting-age African-American and Latino citizens of
Wisconsin who are far are more likely than other members of the electorate to be discouraged,
burdened, deterred, harassed, and in many instances prevented by Act 23 from casting a ballot
that is counted. The Labor Council must now divert substantial resources and attention away
from its other critical missions to deal with the adverse impacts of Act 23 on the union members
and other constituents it serves, and to assist them in attempting to surmount the hurdles to
voting imposed by Act 23. The Labor Council also engages in significant voter education and
assistance efforts through its Section 501(c)(3) affiliate, Labor Community @ Work, which must
Case 2:12-cv-00185-LA Filed 02/23/12 Page 4 of 15 Document 1A. 058
5
now divert substantial resources and attention away from its usual voter education and assistance
activities to work to counteract the adverse effects of Act 23 on minorities, the poor, and senior
citizens.
7. The Wisconsin League of Young Voters Education Fund has its business address
at 2209 North Martin Luther King Jr. Drive, Suite 1, Milwaukee, Wisconsin 53212. It is the
Wisconsin chapter of the national League of Young Voters Education Fund, a Section 501(c)(3)
not-for-profit organization incorporated and having its principal place of business in the State of
New York. It is committed to mobilizing young people of color, non-college youth, and low-
income youth to vote in elections, and to become civically engaged around issues that matter to
young people. The Wisconsin League of Young Voters must now divert substantial resources
and attention away from its traditional voter contact and turnout efforts in order to educate and
assist its constituents (many of whom are African-American and Latino voting-age citizens of
Wisconsin) in attempting to surmount the hurdles to voting imposed by Act 23. Among other
things, it has been forced to channel its resources into creating and distributing educational
materials about the new law; developing and staffing a telephone “hot line” to assist its
constituents in determining what they must do in order to vote; assisting constituents in
obtaining the newly required photo identification cards and the underlying required
documentation (including by driving them to the Department of Motor Vehicles and other
government offices); and organizing the “Ready, Set, Vote” coalition to coordinate community-
based education and outreach regarding Act 23’s requirements, as well as get out the vote
(“GOTV”) efforts that are being conducted by local grassroots organizations.
8. The defendants, Judge David G. Deininger, Judge Michael Brennan, Judge
Gerald C. Nichol, Judge Thomas Barland, and Judge Thomas Cane, are the current members of
the Wisconsin Government Accountability Board (“GAB”). Judge Deininger serves as Chair of
Case 2:12-cv-00185-LA Filed 02/23/12 Page 5 of 15 Document 1A. 059
6
the GAB, Judge Brennan serves as Vice Chair of the GAB, and Judge Nichol serves as Secretary
of the GAB. Each is sued in his official capacity only.
9. The GAB is “charged with oversight of Wisconsin's campaign finance, elections,
ethics, and lobbying laws.” Government Accountability Board, Introduction to the GAB,
http://gab.wi.gov/about/introduction (last visited February 17, 2012). Its mission is to “ensure
accountability in government by enforcing ethics and lobbying laws, and to enhance
representative democracy by ensuring the integrity of the electoral process. . . . The [GAB] and
its staff are committed to ensuring that Wisconsin elections are administered through open, fair
and impartial procedures that guarantee that the vote of each individual counts, and that the will
of the electorate prevails.” Id.
10. Defendant Kevin J. Kennedy is Director and General Counsel of the GAB. In
that role, Defendant Kennedy is responsible for ensuring that the GAB’s decisions, rules, and
directives — including those that pertain to Act 23 — are lawful and consistent with the GAB’s
mission. He is sued in his official capacity only.
11. Defendant Nathaniel E. Robinson is the Administrator of the Elections Division
of the GAB. He is sued in his official capacity only.
WISCONSIN’S TRADITIONAL VOTING PROCESS
12. Wisconsin election law has not traditionally required voters to provide any form
of identification in order to cast a regular ballot on Election Day. Proof of residency has been
required for same-day voter registration — which is permitted on Election Day in Wisconsin —
but registered voters have not been required to present identification in order to exercise their
right to vote. When proof of residency is required during the voter registration process,
Wisconsin law provides that a wide range of documents is acceptable — including non-photo
identifications and documents that are not issued by governmental entities. Examples of
Case 2:12-cv-00185-LA Filed 02/23/12 Page 6 of 15 Document 1A. 060
7
traditionally acceptable proof of residency include any license issued by a Wisconsin
governmental body; employee identification cards; veteran’s benefits cards; library cards; check-
cashing cards; real estate tax bills or receipts; residential leases; college identification cards; and
gas, electric, or telephone bills. Wisconsin law also has traditionally allowed voters without
such identification to prove residency through the statement of a corroborating witness.
Wisconsin’s traditional system has been intended to be inclusive and to assure that all eligible
Wisconsinites who want to exercise their constitutionally guaranteed right to vote are able to do
so.
13. Wisconsin’s traditional voter identification practices are consistent with the
requirements of the federal Help America Vote Act (“HAVA”), 42 U.S.C. §§ 15301-15545,
which is also intended to assure that those eligible citizens who want to vote are able to do so.
HAVA requires only first-time voters who registered by mail and did not include a copy of an
acceptable form of identification when doing so to present identification on Election Day.
Even then, under HAVA, acceptable forms of identification include documents that do not
contain a photograph of the voter, are expired, are issued by a governmental entity in a state
other than the one in which the voter is registered, and are not issued by a government entity
(such as utility bills, student identification cards, and bank statements). Neither federal nor state
law has traditionally required any other registered voter to present identification (photographic
or otherwise) in order to cast a regular ballot on Election Day.
14. Under the traditional process and procedures, voting in Wisconsin has been
relatively easy and generally equally accessible to all registered voters.
THE DEVELOPMENT OF ACT 23
15. In the 2008 presidential general election, the country saw record turnout by
African-American and Latino voters: African-American turnout increased almost five
Case 2:12-cv-00185-LA Filed 02/23/12 Page 7 of 15 Document 1A. 061
8
percentage points, from 60% in 2004 to 65% in 2008, and Latino turnout also rose, from 47% to
50%.
16. Wisconsin’s African-American and Latino voters tracked the national trends:
African-American voter turnout in Wisconsin increased roughly five percentage points from
68% in 2004 to 73% in 2008, and Latino turnout increased from 33% to 44%, even as overall
Wisconsin voter turnout fell five percentage points from the previous presidential general
election.
17. Numerous studies have long documented that African-Americans and Latinos are
far less likely to possess driver’s licenses than Whites in many parts of the country, including in
Wisconsin. One academic study found that half of all African-Americans and Latinos in
Wisconsin lack a driver’s license, including more than three-fourths of African-American men
age 18-24. African-Americans and Latinos are also less likely to be able to obtain such
identification and face greater difficulties doing so. Thus, enacting new laws requiring voters to
present a driver’s license or other government-issued photo identification card in order to cast a
regular ballot on Election Day makes it significantly more difficult for members of these groups
to vote and thereby suppresses their vote.
18. On May 25, 2011, Governor Scott Walker signed Act 23 into law. Act 23 is one
of the strictest and most severe voter identification laws in the nation. Proponents, including
Governor Walker, argue that these restrictions are necessary to prevent voter fraud and to
increase voter confidence in the electoral process. But there is scant evidence, at best, of in-
person voter fraud of the type that the new law purports to prevent. Nor does anyone credibly
contend that voters actually lack confidence in the outcome of Wisconsin elections because of
in-person voter fraud. And even if these were genuine problems, there is no need or justification
for the particularly onerous and extreme provisions of Act 23. The new law has the effect (if not
Case 2:12-cv-00185-LA Filed 02/23/12 Page 8 of 15 Document 1A. 062
9
the purpose) of suppressing the votes of those whose interests differ from those of the law’s
proponents, notably including Wisconsin’s African-American and Latino voters.
THE VOTING PROCESS CONTEMPLATED BY ACT 23
19. Under Act 23, a registered voter is now required to present one of the following
specific forms of identification in order to receive a regular ballot on Election Day:
A Wisconsin driver’s license, unexpired or expired after the most recent
general election;
A Department of Transportation (“DOT”)-issued identification card,
unexpired or expired after the most recent general election;
A military identification card, unexpired or expired after the most recent
general election;
A U.S. passport, unexpired or expired after the most recent general election;
A certificate of naturalization that was issued not earlier than 2 years before
the election at which it was presented;
An unexpired driving receipt issued by DOT;
An unexpired identification card receipt issued by DOT;
An identification card issued by a federally recognized Indian tribe in
Wisconsin; or
A current identification issued by an accredited university in Wisconsin if it
contains the date of issuance, an expiration date of no later than two years
after the date of issuance, and the student’s signature.
See Act 23, Section 1.
20. The required identification must include a photograph. See Act 23, Section 2.
Case 2:12-cv-00185-LA Filed 02/23/12 Page 9 of 15 Document 1A. 063
10
21. Under this law, a voter without the required identification will be allowed to cast
a provisional ballot, see Act 23, Sections 50, 88, but that ballot will be counted only if the voter
presents one of the required identifications to election officials before the polls close or to the
municipal clerk by the Friday following Election Day, see Act 23, Section 90.
22. These requirements first took effect for the Spring Primary on February 21, 2012.
Unless enjoined, they will apply to the April 3, 2012 Spring Election and Presidential Preference
Primary; to the August 14, 2012 Partisan Primary; to the November 6, 2012 General Election;
and to all other special and recall elections conducted in this State.
THE ADVERSE AND DISPARATE IMPACT OF ACT 23ON AFRICAN-AMERICAN AND LATINO VOTERS
23. The impact of this law has been and will continue to be harmful: The voting
rights of thousands of eligible, registered African-American and Latino voters, who will be
discouraged, burdened, deterred, harassed, and in many instances prevented from voting because
they lack required photo identification, have been and will be denied and abridged.
24. African-American and Latino voters in Wisconsin are far less likely than other
members of the electorate to possess one of the forms of identification required by Act 23.
25. African-American and Latino voters are also less likely than other members of
the electorate to be able to secure one of the required forms of identification because of
financial, logistical, and other hurdles that prevent them from securing the required forms of
identification and from acquiring the underlying documentation (such as a certified birth
certificate) necessary to secure one of the required forms of identification under Act 23.
26. As a result of these disparities and hurdles, African-American and Latino voters
are more likely than other members of the electorate to be discouraged, burdened, deterred,
harassed, and in many instances prevented from voting by Act 23, and, thereby, have their rights
to cast ballots that are counted disproportionately denied and abridged.
Case 2:12-cv-00185-LA Filed 02/23/12 Page 10 of 15 Document 1A. 064
11
FIRST CLAIM FOR RELIEF
VIOLATION OF SECTION 2 THE OF THE VOTING RIGHTS ACT OF 1965
27. Plaintiffs repeat and re-allege each and every one of the preceding assertions,
allegations, and claims as though set forth fully herein.
28. Section 2 of the Voting Rights Act provides, in relevant part, that “[n]o voting
qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or
applied by any State . . . in a manner which results in a denial or abridgement of the right of any
citizen of the United States to vote on account of race, color, or in contravention of the
guarantees set forth in section 4(f)(2) [42 U.S.C. § 1973b(f)(2)], as provided in subsection (b).”
42 U.S.C. § 1973(a).
29. Private litigants may enforce their rights under 42 U.S.C. § 1973 by bringing
a suit under 42 U.S.C. § 1983.
30. Act 23 imposes requirements for voting that, if not declared illegal and enjoined,
will continue adversely and disproportionately to affect African-American and Latino voters.
31. Under Act 23, African-American and Latino voters will have less opportunity
than other members of the electorate to participate in the political process and to elect
representatives of their choice because they are less likely to possess the types of identification
needed to receive and cast a ballot that is counted, when compared with other members of the
electorate, and they will be subject to greater burdens and more severe hurdles in attempting to
cast their ballots than other members of the electorate.
32. Under Act 23, African-American and Latino voters will have less opportunity
than other members of the electorate to participate in the political process and to elect
representatives of their choice because they are less likely to be able to obtain the types of
identification needed to receive and cast a ballot that is counted, when compared with other
Case 2:12-cv-00185-LA Filed 02/23/12 Page 11 of 15 Document 1A. 065
12
members of the electorate, and they will be subject to greater burdens and more severe hurdles
in attempting to obtain such identification than other members of the electorate.
33. African-Americans and Latinos have suffered from, and continue to suffer from,
discrimination in the electoral and political processes in the State of Wisconsin and its political
subdivisions, including through the use of practices or procedures that exacerbate discrimination
against African-American and Latino voters, the use of racial appeals in campaigns, and/or the
levels at which African-Americans and Latinos have been elected to public office. Racially
polarized voting in Wisconsin has only exacerbated the adverse affects of such discrimination
against African-American and Latino voters.
34. By virtually every measure, African-Americans and Latinos in Wisconsin have
suffered from, and continue to suffer from, the effects of discrimination in areas such as
employment, housing, and education that affect their ability to participate in the political process
and result in their disproportionately lacking the identification and/or the ability to obtain such
documentation that Act 23 requires them to present in order to cast a ballot that is counted. One
consequence of the historic discrimination against African-Americans and Latinos in Wisconsin
is that they reside disproportionately in urban areas and use public transportation to travel to and
from work and tend to have lower incomes. As a result, African-Americans and Latinos in
Wisconsin tend to drive less often and to possess drivers licenses — the principal form of
government-issued photo identification — less often than other members of the electorate. Act
23’s photo identification requirement for voting therefore imposes a disproportionate burden on
African-American and Latino voters, who are more likely than other members of the electorate
to be unable to cast a ballot that is counted because they lack the required government-issued
photo ID.
35. The State’s asserted justifications for Act 23 — including the purported problem
Case 2:12-cv-00185-LA Filed 02/23/12 Page 12 of 15 Document 1A. 066
13
of in-person voter impersonation — are not supported by credible evidence. Nor are Act 23’s
extreme, unduly harsh and restrictive, and arbitrarily and unevenly administered provisions
necessary or appropriately tailored (or even obviously related) to the accomplishment of any
legitimate state interest in preventing voter fraud.
36. When viewed in light of the circumstances described herein, Act 23 is likely to
disproportionately deny and abridge the rights of African-American and Latino voters in
Wisconsin to participate in the political process because they will be less likely than other
members of the electorate to have the identification that Act 23 requires in order to cast a ballot
that is counted and more likely to be prevented from voting under the new law. Act 23 therefore
violates Section 2 of the Voting Rights Act of 1965, and Defendants are liable to Plaintiffs for
this violation, jointly and severally.
37. If Act 23 is not enjoined, Ms. Jones and other minority citizens of Wisconsin will
continue to have their rights to vote denied and abridged. The African-American and Latino
members and constituents of LULAC of Wisconsin, Cross Lutheran Church, the Milwaukee
Area Labor Council, and the Wisconsin League of Young Voters Education Fund will face
similar denial and abridgement of their rights to vote. And these organizations will be forced to
continue to divert substantial resources from other critical missions to countering the effects of a
discriminatory and invalid law, including by tracking, educating, and assisting individuals who
do not have the required identification, which is not part of these organizations’ usual work, and
to devoting additional resources to accomplishing their missions because Act 23 makes it more
difficult for African-American and Latino citizens to vote.
38. In light of these violations, Plaintiffs are entitled to and request the relief
specified herein.
Case 2:12-cv-00185-LA Filed 02/23/12 Page 13 of 15 Document 1A. 067
14
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs, each and every one of them, respectfully request that
the Court issue the following relief against Defendants:
A. Assume jurisdiction over this action;
B. Declare that Act 23 violates Section 2 of the Voting Rights Act of 1965, as
amended, 42 U.S.C. § 1973;
C. Enjoin the continued implementation and enforcement of Act 23;
D. Require Defendants to:
1. Publish and distribute to all voters notice of this Court’s decision;
2. Publish and distribute to all voters notice that Act 23 will not be further
implemented and enforced;
3. Publish and distribute to all voters the appropriate guidelines for voting;
4. Publish and distribute to all officials, workers, and volunteers involved in
the electoral process notice of this Court’s decision and the fact that Act 23
will not continue to be implemented and enforced; and
5. Train all officials, workers, and volunteers involved in the electoral
process on the appropriate guidelines for voting.
E. Award reasonable attorney fees, reasonable expert fees, and other reasonable
litigation expenses as part of the costs, pursuant to 42 U.S.C. § 1973l(e), 42 U.S.C. § 1988(b),
Fed. R. Civ. P. 54, and any such other statutes and rules as may provide for the recovery of
fees and costs brought to vindicate the rights asserted herein; and
F. Grant such other relief, be it legal or equitable, as this Court deems to be in
the interest of justice.
Case 2:12-cv-00185-LA Filed 02/23/12 Page 14 of 15 Document 1A. 068
15
Dated: February 23, 2012
Penda D. HairKumiki GibsonDenise D. LiebermanAdvancement ProjectSuite 8501220 L Street, N.W.Washington, D.C. 20005Phone: (202) 728-9557Email: [email protected]
[email protected]@advancementproject.org
Respectfully submitted,
/s Charles G. Curtis, Jr. ___Arnold & Porter LLPSuite 62016 North Carroll StreetMadison, Wisconsin 53703Phone: (608) 257-1922Email: [email protected]
John C. UlinArnold & Porter LLP44th Floor777 South Figuero StreetLos Angeles, California 90017Phone: (213) 243-4000Email: [email protected]
Carl S. NadlerArnold & Porter LLP555 Twelfth Street, N.W.Washington, D.C. 20004Phone: (202) 942-6130Email: [email protected]
Case 2:12-cv-00185-LA Filed 02/23/12 Page 15 of 15 Document 1A. 069
1
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WISCONSIN
RUTHELLE FRANK, SHIRLEY BROWN, NANCY LEA WILDE, EDDIE LEE HOLLOWAY, JR., MARIANNIS GINORIO, FRANK YBARRA, SAM BULMER, PAMELA DUKES, CARL ELLIS, RICKIE LAMONT HARMON, DARTRIC DAVIS, BARBARA ODEN, DEWAYNE SMITH, SANDRA JASHINSKI, JUSTIN LUFT, ANNA SHEA, MATTHEW DEARING, MAX KLIGMAN, SAMANTHA MESZAROS, STEVE KVASNICKA, SARAH LAHTI, DOMONIQUE WHITEHURST, EDWARD HOGAN, ANTHONY JUDD, AND ANTHONY SHARP, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
SCOTT WALKER, in his official capacity as Governor of the State of Wisconsin, et al., Defendants.
Civil Action No. 2:11-cv-01128 (LA)
FIRST AMENDED COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF
Plaintiffs Ruthelle Frank, Shirley Brown, Nancy Lea Wilde, Eddie Lee
Holloway, Jr., Mariannis Ginorio, Frank Ybarra, Sam Bulmer, Pamela Dukes, Carl
Ellis, Rickie Lamont Harmon, Dartric Davis, Barbara Oden, DeWayne Smith,
Case 2:11-cv-01128-LA Filed 03/02/12 Page 1 of 79 Document 31A. 070
2
Sandra Jashinski, Justin Luft, Anna Shea, Matthew Dearing, Max Kligman,
Samantha Meszaros, Steve Kvasnicka, Sarah Lahti, Domonique Whitehurst,
Edward Hogan, Anthony Judd, and Anthony Sharp (collectively, “Plaintiffs”), who
are eligible Wisconsin voters, bring this action to protect their rights, and the rights
of all other similarly situated Wisconsin residents, to vote under the United States
Constitution and the Voting Rights Act. Wisconsin’s voter identification law,
2011 Wisconsin Act 23 (“the photo ID law” or “Act 23”), will deprive the named
plaintiffs above and the classes of voters they represent of their fundamental right
to vote.
Plaintiffs, through their undersigned counsel, bring this Complaint against
Defendant Scott Walker (“Defendant Walker”), in his official capacity as Governor
of the State of Wisconsin; Judge David G. Deininger in his official capacity as
Chair of the Wisconsin Government Accountability Board (“GAB”); Judge
Michael Brennan, in his official capacity as Vice Chair of the GAB; Judge Thomas
Barland, in his official capacity as a member of the GAB; Judge Thomas Cane, in
his official capacity as a member of the GAB; Judge Gerald C. Nichol, in his
official capacity as a member of the GAB; Kevin J. Kennedy, in his official
capacity as Director and General Counsel of the GAB; Nathaniel E. Robinson, in
his official capacity as Administrator of the Elections Division of the GAB (“the
GAB Defendants”); Defendant Mark Gottlieb, in his official capacity as Secretary
Case 2:11-cv-01128-LA Filed 03/02/12 Page 2 of 79 Document 31A. 071
3
of the Wisconsin Department of Transportation (“WisDOT”); Defendant Lynne
Judd (“Defendant Judd”), in her official capacity as the Administrator of the
Division of Motor Vehicles (“DMV”) at WisDOT; Defendant Kristina Boardman,
in her official capacity as the Director of the Bureau of Field Services at the DMV;
Defendants Donald D. Reincke and Tracy Jo Howard, in their respective official
capacities as Region Manager and Region Operational Manager of the DMV
Bureau of Field Services office for the Southwest Region; Defendants Sandra M.
Brisco and Barney L. Hall in their respective official capacities as Region Manager
and Region Operational Manager of the DMV Bureau of Field Services office for
the Southeast Region; Defendant Donald J. Genin in his official capacity as Region
Manager of the DMV Bureau of Field Services office for the Northeast Region;
Defendant Jill Louise Geoffroy in her official capacity as Region Manager of the
DMV Bureau of Field Services office for the North Central Region; and Defendant
Patricia A. Nelson in her official capacity as Region Manager of the DMV Bureau
of Field Services office for the Northwest Region (“the DMV Defendants”)
(collectively, “Defendants”). Plaintiffs allege upon knowledge as to their own
conduct and observations and upon information and belief as to the conduct of
others:
Case 2:11-cv-01128-LA Filed 03/02/12 Page 3 of 79 Document 31A. 072
4
NATURE OF THE ACTION
1. This action seeks declaratory and injunctive relief against Wisconsin state
officials’ enforcement of 2011 Wisconsin Act 23 (the “photo ID law”), which
requires voters in Wisconsin to present photo identification in order to cast their
votes either in person at a polling place or by absentee ballot. This requirement
went into effect on February 21, 2012, the date of Wisconsin’s spring primary.
2. This lawsuit seeks a declaratory judgment that the photo ID law is
unconstitutional as applied to certain classes of eligible Wisconsin voters and to
enjoin its enforcement with respect to these classes. It also seeks a declaratory
judgment that the photo ID law violates Section 2 of the Voting Rights Act and an
injunction as applied to Milwaukee County, Wisconsin and the State of Wisconsin.
The photo ID law imposes a severe and undue burden on the fundamental right to
vote under the Equal Protection Clause of the Fourteenth Amendment of the
United States Constitution; violates the Twenty-Fourth and Fourteenth
Amendments to the United States Constitution as an unconstitutional poll tax;
violates the Equal Protection Clause of the Fourteenth Amendment in arbitrarily
refusing to accept certain identification documents; and violates Section 2 of the
Voting Rights Act, 42 U.S.C. § 1973, due to its disproportionate negative impact
on minority voters in Milwaukee County, Wisconsin and in the State of Wisconsin.
Case 2:11-cv-01128-LA Filed 03/02/12 Page 4 of 79 Document 31A. 073
5
PARTIES
3. Each of the plaintiffs named in this Complaint is a citizen of the United
States, a resident of the State of Wisconsin, and is a duly qualified elector eligible
to vote in local, state, and federal elections in Wisconsin. Every United States
citizen age 18 or older who has resided in an election district or ward in the State
of Wisconsin for 28 consecutive days before any election where the citizen offers
to vote is an eligible elector (hereinafter, “eligible Wisconsin voter”). Wis. Stat. §
6.02(1).
4. Plaintiff Ruthelle Frank is an 84-year-old Caucasian resident of Brokaw,
Wisconsin, where she has served on the Village Board since 1996, and an eligible
voter registered to vote in Wisconsin. She has no accepted form of photo ID under
the photo ID law and has never had a Wisconsin driver’s license or Wisconsin state
ID card. Mrs. Frank was born at her home in Brokaw in 1927. Though she has
never possessed a copy of her birth certificate, upon information and belief, the
state Register of Deeds has a record of her birth and could produce a certified copy
of her birth certificate at a charge. However, that record bears an incorrect spelling
of her maiden name and her parents’ names. She was informed that amending her
birth certificate would require a legal proceeding which could be lengthy and cost
as much as $200. The DMV office would not accept her baptismal certificate and
did not inform Mrs. Frank of any alternative procedure to satisfy this requirement.
Case 2:11-cv-01128-LA Filed 03/02/12 Page 5 of 79 Document 31A. 074
6
She has voted consistently since 1948 and wishes to vote in Wisconsin again this
year.
5. Plaintiff Shirley Brown is a 73-year-old African-American resident of
Milwaukee, Wisconsin and an eligible voter. She has no accepted form of photo
ID under the photo ID law and has never had a Wisconsin driver’s license or
Wisconsin state ID card. Ms. Brown lacks a certified copy of her birth certificate.
Ms. Brown was born in Louisiana at home by midwife and, upon information and
belief, there is no record of her birth on file with the Louisiana Department of
Health and Hospitals (“DHH”) Vital Records Registry. Furthermore, when Ms.
Brown sought confirmation from the DHH Vital Records Registry in Louisiana
that no birth record existed, the agency inexplicably sent her a birth certificate for
her sister, June Rose Brown, who is about four years younger. The DMV office
Ms. Brown visited when trying to obtain an ID did not inform her of any
alternative procedure to satisfy its documentary proof requirements. Ms. Brown
wishes to vote in Wisconsin this year.
6. Nancy Lea Wilde is a 74-year-old Caucasian resident of Schofield,
Wisconsin and an eligible and registered voter. She has no accepted photo ID
under the photo ID law and has never had a Wisconsin driver’s license or state ID
card. Mrs. Wilde lacks a certified copy of her birth certificate which she needs to
prove her citizenship to the Wisconsin DMV. Instead, Mrs. Wilde possesses a
Case 2:11-cv-01128-LA Filed 03/02/12 Page 6 of 79 Document 31A. 075
7
hospital certificate of her birth and a baptismal certificate. Mrs. Wilde was born in
Wausau, Wisconsin, but both the Marathon County, Wisconsin Register of Deeds
and the Wisconsin Vital Records Office in Madison, Wisconsin have informed
Mrs. Wilde that there is no record of her birth on file. About two years ago, the
DMV office in Wausau denied her a state ID card, since she could not present a
certified copy of her birth certificate. Recently, in response to further inquiry, a
DMV employee called Mrs. Wilde and informed her that she could secure a
certification from the Wisconsin Vital Records Office that there is no record of her
birth and use her hospital and baptismal certificates instead to obtain a state ID
card. However, DMV never provided her with the forms to use or gave her clear
instructions on how to proceed. Mrs. Wilde has voted consistently since 1957 and
intends to vote in Wisconsin again this year.
7. Plaintiff Eddie Lee Holloway, Jr. is an African-American resident of
Milwaukee, Wisconsin and an eligible and registered voter. He has no accepted
form of photo ID under the photo ID law and has never had a Wisconsin driver’s
license or Wisconsin state ID card. Mr. Holloway, Jr. lacks an accurate and
certified copy of his birth certificate. Mr. Holloway, Jr. was born in Decatur,
Illinois. His father’s name was “Eddie Lee Holloway,” and his parents gave him
the name “Eddie Lee Holloway, Jr.” However, his birth certificate, which Mr.
Holloway, Jr. possesses, bears the name “Eddie Junior Holloway.” His Social
Case 2:11-cv-01128-LA Filed 03/02/12 Page 7 of 79 Document 31A. 076
8
Security Card and expired Illinois state ID card both bear the name “Eddie L
Holloway Jr”. When he tried to obtain an ID, the DMV office denied his
application because of the discrepancies between his birth certificate and other
documents, and did not inform him of any alternative procedure to satisfy its proof
requirements. He has been informed that the legal proceeding needed to amend his
birth certificate would cost him hundreds of dollars. Mr. Holloway, Jr. is
unemployed due to disability and cannot afford the expense of seeking an
amendment to his birth certificate. Mr. Holloway, Jr. wishes to vote in Wisconsin
this year.
8. Plaintiff Mariannis Ginorio is a 19-year-old Hispanic/Latino resident of
Milwaukee, Wisconsin and an eligible voter. She has no accepted form of photo
ID under the photo ID law and has never had a Wisconsin driver’s license or
Wisconsin state ID card. Ms. Ginorio was born in Puerto Rico and has a birth
certificate that was issued prior to July 1, 2010, when Puerto Rico began issuing
new birth certificates pursuant to Law 191 of 2009 as Amended. In accordance
with Puerto Rican law, the Wisconsin DMV has deemed all certified copies of
birth certificates issued prior to July 1, 2010 invalid for purposes of proving U.S.
citizenship at a Wisconsin DMV office. Additionally, because she does not have
current government-issued photo identification, Ms. Ginorio cannot meet the
application requirement to obtain a certified copy of the new birth certificate from
Case 2:11-cv-01128-LA Filed 03/02/12 Page 8 of 79 Document 31A. 077
9
Puerto Rico. Ms. Ginorio also has limited income from her employment and
numerous bills to pay, so that applying for a birth certificate will be a financial
burden. Ms. Ginorio wishes to vote in Wisconsin this year.
9. Plaintiff Frank Ybarra is a 59-year-old Hispanic/Latino resident of
Milwaukee, Wisconsin and an eligible voter. Many years ago, he had a driver’s
license and state photo ID card issued by the State of Wisconsin, but Mr. Ybarra
currently has no accepted form of photo ID under the photo ID law. Mr. Ybarra
was born in Milwaukee, but lacks a certified copy of his birth certificate and lacks
the documents that are normally required by Wisconsin to obtain a birth certificate.
Furthermore, he was born “Frank Pronto” in Milwaukee County and legally
changed his name to “Frank Ybarra,” his father’s name, while living in Texas
when he was in his twenties. However, he does not have the court records from
this name change and is unable to acquire them without incurring significant
financial and other burdens. Mr. Ybarra is currently experiencing homelessness
and usually sleeps on the street. He has no regular income and no savings, but
occasionally finds work on a day-by-day basis, and cannot afford any costs to
obtain necessary documents for the state ID card application. As an unsheltered
homeless person with no connection to any social service agency other than a meal
program, it is unclear whether he can prove Wisconsin residency for the state ID
card application and receive a state ID card in the mail at a current Wisconsin
Case 2:11-cv-01128-LA Filed 03/02/12 Page 9 of 79 Document 31A. 078
10
residence street address. Additionally, Mr. Ybarra could use his Texas court
records as proof of identity, but barring that, he will be compelled to obtain a
Social Security Card. Mr. Ybarra wishes to vote in Wisconsin this year.
10. Sam Bulmer is a 63-year-old Caucasian resident of Milwaukee,
Wisconsin and an eligible and registered voter. He has no accepted photo ID under
the photo ID law and has never had a Wisconsin driver’s license or state ID card.
Mr. Bulmer is a 13-year veteran of the United States Air Force and was an
instructor with the Air Force Training Command. He is currently living in a
homeless shelter for veterans and subsists on an extremely limited monthly
pension, which is limited further by the shelter’s policies requiring him to set aside
a significant portion of his money. Mr. Bulmer lacks a certified copy of his birth
certificate from the State of Kansas and cannot afford the $15.00 birth certificate
application fee. Even if he could, he lacks the documents to satisfy the
identification requirement for a mail-in birth certificate application. Mr. Bulmer
also lacks a Social Security Card (“SSC”), which is accepted proof of identity for
the Wisconsin state ID card application. Mr. Bulmer does, however, possess a
Veterans Identification Card (“VIC”), which is issued by the U.S. Department of
Veterans Affairs and contains his name and photograph. Mr. Bulmer wishes to
vote in Wisconsin this year.
Case 2:11-cv-01128-LA Filed 03/02/12 Page 10 of 79 Document 31A. 079
11
11. Plaintiff Pamela Dukes is a 51-year-old African-American resident of
Milwaukee, Wisconsin and an eligible voter. She has none of the accepted forms
of photo ID under the photo ID law and lacks a certified copy of her birth
certificate from Cook County, Illinois. Ms. Dukes receives monthly Supplemental
Security Income (“SSI”) disability benefits, but has no other income or savings.
She spends the overwhelming majority of her SSI income on rent, and the
remainder is devoted to utility bills and other necessary living expenses. She is
therefore unable to afford a certified copy of her Illinois birth certificate. Ms.
Dukes wishes to vote in Wisconsin this year.
12. Plaintiff Carl Ellis is a 52-year-old African-American/Caucasian
resident of Milwaukee, Wisconsin and an eligible voter. A veteran of the United
States Army, Mr. Ellis is currently living in a homeless shelter for veterans and has
no income or savings. Mr. Ellis has no accepted form of photo ID under the photo
ID law and lacks a certified copy of his birth certificate from the Illinois
Department of Public Health’s Vital Records Office. Mr. Ellis cannot afford to
pay for a certified copy of his Illinois birth certificate. He does, however, possess
a Veterans Identification Card (“VIC”), which is issued by the U.S. Department of
Veterans Affairs and contains his name and photograph. He wishes to vote in
Wisconsin this year.
Case 2:11-cv-01128-LA Filed 03/02/12 Page 11 of 79 Document 31A. 080
12
13. Rickie Lamont Harmon is a 60-year-old African-American resident of
Milwaukee, Wisconsin and an eligible and registered voter. His Wisconsin state
ID card has expired and is not usable as photo ID to vote in Wisconsin. Mr.
Harmon is a veteran of the United States Army. He is currently living in a
homeless shelter for veterans. Mr. Harmon has no accepted photo ID under the
photo ID law, but does possess a Veterans Identification Card (“VIC”), which is
issued by the U.S. Department of Veterans Affairs and contains his name and
photograph. Mr. Harmon wishes to vote in Wisconsin this year.
14. Plaintiff Dartric Davis is a 21-year-old African-American resident of
Milwaukee, Wisconsin and an eligible voter. Mr. Davis has no accepted form of
photo ID under the photo ID law and lacks a certified copy of his birth certificate
from the Illinois Department of Public Health’s Vital Records Office. He moved
to Wisconsin in 2011 and has never held a Wisconsin driver’s license or Wisconsin
state ID card. Mr. Davis has made several attempts to acquire a certified copy of
his birth certificate from Illinois, but has so far been unable to do so. He wishes to
vote in Wisconsin this year.
15. Plaintiff Barbara Oden is a 57-year-old, African-American resident of
Milwaukee, Wisconsin and an eligible voter. Ms. Oden has no accepted form of
photo ID under the photo ID law and lacks a Social Security Card (“SSC”), which
is accepted proof of identity for the Wisconsin state ID card application. She was
Case 2:11-cv-01128-LA Filed 03/02/12 Page 12 of 79 Document 31A. 081
13
denied an SSC by an employee at the Social Security Administration (“SSA”)
office, who told her that she must present a photo ID in order to obtain an SSC.
Ms. Oden wishes to vote in Wisconsin this year.
16. Plaintiff DeWayne Smith is a 50-year-old, African-American resident of
Cudahy, Wisconsin, which is in Milwaukee County, and an eligible and registered
voter. Mr. Smith has no accepted form of photo ID under the photo ID law and
lacks a Social Security Card (“SSC”), which is accepted proof of identity for the
Wisconsin state ID card application. He has attempted on numerous occasions to
obtain a replacement for his lost SSC. However, every time he visits the SSA
office, employees inform him each time that he cannot obtain a replacement SSC
without a photo ID. He has since learned that alternative identification, such as an
employee ID card, a school ID card, or a health insurance cards, may be used to
obtain an SSC, but he does not have any of those documents either. He wishes to
vote in Wisconsin this year.
17. Plaintiff Sandra Jashinski is a 48-year-old, Caucasian and Native
American (Cherokee) resident of Milwaukee, Wisconsin and an eligible voter. Ms.
Jashinski has no accepted form of photo ID under the photo ID law and lacks a
Social Security Card (“SSC”), which is accepted proof of identity for the
Wisconsin state ID card application. An employee at the Social Security
Administration office told Ms. Jashinski that she must present a photo ID in order
Case 2:11-cv-01128-LA Filed 03/02/12 Page 13 of 79 Document 31A. 082
14
to obtain an SSC and then denied her an SSC when she could not do so. Ms.
Jashinski is homeless and unsheltered and lacks connections to any social service
agency other than a meal program. As a result, she may also have no way to prove
her residency and receive a state ID card in the mail at a current Wisconsin
residence street address. She wishes to vote in Wisconsin this year.
18. Plaintiff Justin Luft is a 20-year-old Caucasian resident of Milwaukee,
Wisconsin and an eligible voter. He has no accepted form of photo ID under the
photo ID law and has never had a Wisconsin driver’s license or state ID card. Mr.
Luft has twice traveled to the Wisconsin DMV office to obtain a state ID card, but
was unable to do so due to his lack of a Social Security Card (“SSC”) or any other
accepted form of proof of identity. He has visited the Social Security
Administration (“SSA”) office multiple times with his mother, but has been
unsuccessful in obtaining a duplicate of his SSC. He does not have a car, and thus,
the trips he has made to try to obtain an SSC and state ID card have been by bus.
He wishes to vote in Wisconsin this year.
19. Plaintiff Anna Shea is a 20-year-old Caucasian student at Lawrence
University, an accredited four-year private university in Appleton, Wisconsin, and
an eligible voter. She currently holds an unexpired driver’s license from the State
of Colorado which she does not want to surrender and a Lawrence voting-only ID
Case 2:11-cv-01128-LA Filed 03/02/12 Page 14 of 79 Document 31A. 083
15
card, the validity of which for voting purposes remains uncertain. Ms. Shea voted
in the November 2010 general election and wishes to vote in Wisconsin this year.
20. Plaintiff Matthew Dearing is an 18-year-old African-American student
at Lawrence University, an accredited four-year private university in Appleton,
Wisconsin, and an eligible voter. He currently holds an unexpired driver’s license
from the State of New York which he does not want to surrender. Lawrence
University is offering its students voting-only ID cards, but their validity for voting
purposes remains uncertain. Mr. Dearing wishes to cast his first vote this year in
Wisconsin.
21. Plaintiff Max Kligman is a 19-year-old Caucasian student at Lawrence
University, an accredited four-year private university in Appleton, Wisconsin, and
an eligible voter. He currently holds an unexpired driver’s license from the State
of California which he does not want to surrender. Lawrence University is
offering its students voting-only ID cards, but their validity for voting purposes
remains uncertain. Mr. Kligman wishes to cast his first vote this year in
Wisconsin.
22. Plaintiff Samantha Meszaros is an 18-year-old Caucasian freshman at
Carthage College, an accredited four-year private college in Kenosha, Wisconsin,
and an eligible voter. She lacks all the accepted forms of photo ID under the photo
ID law. Upon information and belief, Carthage’s newly revised student ID cards
Case 2:11-cv-01128-LA Filed 03/02/12 Page 15 of 79 Document 31A. 084
16
will comply with Act 23’s requirements, but the school has not started issuing
these. She currently holds an unexpired driver’s license from the State of Illinois
which she does not want to surrender. Ms. Meszaros intends to cast her first vote
this year in Wisconsin.
23. Plaintiff Steve Kvasnicka is a 20-year-old Caucasian junior at Carthage
College, an accredited 4-year private college in Kenosha, Wisconsin, and an
eligible voter. He lacks all the accepted forms of photo ID under the photo ID law.
Upon information and belief, Carthage’s newly revised student ID cards will
comply with Act 23’s requirements, but the school has not started issuing these.
He currently holds an unexpired driver’s license from the State of Illinois which he
does not want to surrender. Mr. Kvasnicka wishes to vote in Wisconsin this year.
24. Plaintiff Sarah Lahti is an 18-year-old Caucasian resident of Milwaukee,
Wisconsin, and a student at Milwaukee Area Technical College (“MATC”), where
she is studying for her GED. She currently holds an unexpired driver’s license
from the State of Tennessee which she does not want to surrender and an MATC
student ID card with her name and photo. She lacks all other accepted forms of
photo ID under the photo ID law. Ms. Lahti wishes to cast her first vote this year
in Wisconsin.
25. Plaintiff Domonique Whitehurst is an 18-year-old African-American
and Native American (Blackfoot) student at Milwaukee Area Technical College
Case 2:11-cv-01128-LA Filed 03/02/12 Page 16 of 79 Document 31A. 085
17
(“MATC”). Mr. Whitehurst has an MATC ID card with his name and photo, but
no other accepted form of photo ID under the photo ID law. Mr. Whitehurst
wishes to cast his first vote ever this year in Wisconsin.
26. Plaintiff Edward Hogan is a 21-year-old Caucasian resident of
Milwaukee, Wisconsin, and a student at MATC as well, where he is studying
towards an associate’s degree. Mr. Hogan has an MATC student ID card with his
name and photo, but no other accepted form of photo ID under the photo ID law.
He wishes to vote in Wisconsin this year.
27. Plaintiff Anthony Judd is a 46-year-old, Caucasian resident of
Milwaukee, Wisconsin and an eligible voter. He has none of the accepted forms of
photo ID under the photo ID law. Due to the efforts of an individual with no legal
obligation to do so who provided financial and logistical support to him,
subsequent to the filing of this lawsuit, Plaintiff Judd obtained documents and is in
the process of applying for a photo ID card. However, he has not yet received the
state ID card, which DMV now mails to all applicants, and as an unsheltered
homeless person, it is unclear whether his efforts will be successful. He wishes to
vote in Wisconsin this year.
28. Anthony Sharp is a 19-year-old, African-American resident of
Milwaukee, Wisconsin and an eligible voter. He is living with his mother, and at
the time the initial complaint in this action was filed, possessed none of the
Case 2:11-cv-01128-LA Filed 03/02/12 Page 17 of 79 Document 31A. 086
18
accepted forms of photo ID under the photo ID law, and lacks a certified copy of
his birth certificate. Mr. Sharp has no income or savings. Subsequent to the filing
of this lawsuit, Mr. Sharp was able to obtain an ID card solely because Milwaukee
County decided to allow certain persons born in the county to obtain free birth
certificates, and because of repeated visits to various agencies to obtain other
documents necessary to obtain photo ID. He intends to vote in Wisconsin next
year.
29. Defendant Scott Walker is the Governor of the State of Wisconsin. He
is sued in his official capacity only.
30. Defendant Judge David G. Deininger is the Chair of the Wisconsin
Government Accountability Board (“GAB”). Defendant Judge Michael Brennan is
the Vice Chair of the GAB. Defendants Judge Gerald C. Nichol, Judge Thomas
Barland, and Judge Thomas Cane are the three remaining members of the GAB.
There is currently one vacant seat. The GAB is charged with administering
Wisconsin’s election laws and has the authority to promulgate rules applicable to
all jurisdictions within the state for the purpose of interpreting or implementing the
laws regulating the conduct of elections or ensuring their proper administration.
Each of the GAB members listed above is sued in his official capacity only.
Case 2:11-cv-01128-LA Filed 03/02/12 Page 18 of 79 Document 31A. 087
19
31. Defendant Kevin J. Kennedy is the Director and General Counsel of the
GAB, and Defendant Nathaniel E. Robinson is the Administrator of the Elections
Division of the GAB. They are sued in their official capacities only.
32. Defendant Mark Gottlieb is the Secretary of the Wisconsin Department
of Transportation (“WisDOT”), which includes the DMV. He is sued in his
official capacity only.
33. Defendant Lynne Judd is the Administrator of the Wisconsin DMV.
She is sued in her official capacity only.
34. Defendant Kristina Boardman is the Director of the Bureau of Field
Services at the Wisconsin DMV. She is sued in her official capacity only.
35. Defendants Donald D. Reincke and Tracy Jo Howard are, respectively,
the Region Manager and Region Operational Manager of the DMV Bureau of
Field Services office for the Southwest Region. Defendants Sandra M. Brisco and
Barney L. Hall are, respectively, the Region Manager and Region Operational
Manager of the DMV Bureau of Field Services office for the Southeast Region.
Defendant Donald J. Genin is the Region Manager of the DMV Bureau of Field
Services office for the Northeast Region. Defendant Jill Louise Geoffroy is the
Region Manager of the DMV Bureau of Field Services office for the North Central
Region. Defendant Patricia A. Nelson is the Region Manager of the DMV Bureau
of Field Services office for the Northwest Region. The Bureau of Field Services is
Case 2:11-cv-01128-LA Filed 03/02/12 Page 19 of 79 Document 31A. 088
20
the entity within DMV responsible for issuing driver’s licenses and identification
cards. They are sued in their official capacities only.
JURISDICTION AND VENUE
36. This case arises under the Constitution and laws of the United States.
This Court has subject matter jurisdiction of this action under 28 U.S.C. §§ 1331,
1343(a)(3) & (4), 2201-02 and 42 U.S.C. §§ 1971(d), 1973j(f), and 1983.
37. Venue in this district is proper under 28 U.S.C. § 1391(b)(1), because at
least two of the Defendants reside in the Eastern District of Wisconsin and all the
Defendants reside in Wisconsin, as well as 28 U.S.C. § 1391(b)(2), because a
substantial part of the events or omissions giving rise to the claims asserted herein
have occurred—and continue to occur—in the Eastern District of Wisconsin.
FACTS RELATED TO THE PHOTO ID LAW
38. Prior to the enactment of the photo ID law, with a single, limited
exception,1 Wisconsin voters were not required to provide proof of identity in
order to cast a ballot, much less one of a specified, limited number of photo IDs.
While Wisconsin voters need to provide proof of residence to register to vote if
they are registering close to or on the day of an election, a range of documentation
is accepted by Wisconsin election officials to prove residency, including both 1 Under the Help America Vote Act (“HAVA”), first-time voters who register by mail must produce “a current and valid photo identification” or “a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter.” 42 U.S.C. § 15483(b)(2).
Case 2:11-cv-01128-LA Filed 03/02/12 Page 20 of 79 Document 31A. 089
21
photo and non-photo forms of identification such as ID cards or licenses of any
kind issued by any Wisconsin governmental unit, utility bills, bank account
statements, paycheck stubs, any government-issued document, and residential
leases.
39. The photo ID law, 2011 Wisconsin Act 23, was signed into law on May
25, 2011 and went into effect with the February 21, 2012 primary. Under the new
photo ID law, Wisconsin voters must present one form of photo identification from
a limited statutory list in order to cast a ballot.2 Unlike voter ID laws in other
states such as Indiana’s photo ID law, which was upheld against a facial
constitutional challenge in Crawford v. Marion County Election Board, 553 U.S.
181 (2008), Wisconsin’s photo ID law applies to both in-person voting and most
absentee voting.
40. The list of accepted photo IDs in Wisconsin is restricted to only the
following: (1) a Wisconsin driver’s license; (2) a Wisconsin state ID card issued by
the Wisconsin DMV; (3) an identification card issued by a U.S. uniformed service;
(4) a U.S. passport; (5) a certificate of U.S. naturalization that was issued not
earlier than 2 years before the date of an election at which it is presented; (6) an
unexpired receipt issued at the time of application for a Wisconsin driver’s license
or state ID card; (7) an identification card issued by a federally recognized Indian
2 This is in addition to, not instead of, the requirement to register to vote.
Case 2:11-cv-01128-LA Filed 03/02/12 Page 21 of 79 Document 31A. 090
22
tribe in Wisconsin3; and (8) an unexpired identification card issued by a Wisconsin
university or college accredited as defined in Wis. Stat. § 39.30(1)(d), which
contains the signature of the individual to whom it is issued, the issuance date, and
an expiration date not later than 2 years after the date of issuance (collectively,
“accepted photo ID”). Wis. Stat. § 5.02(6m).4 The first four accepted photo IDs
must be unexpired or, if expired, must have expired after the date of the most
recent general election. Wis. Stat. § 5.02(6m)(a). A voter who is required to
surrender his or her driver’s license or driving receipt by a law enforcement officer
within 60 days of the date of an election may present an original copy of the
citation or notice in lieu of the license or receipt for a license, and this too
constitutes “accepted photo ID.” Wis. Stat. § 6.79(7).
41. The following is a non-exhaustive list of forms of identification that will
not be accepted for in-person or absentee voting: (1) any federal photo
identification not specifically listed, and thus excluding, among others, Veterans
Identification Cards (“VICs”); (2) any Wisconsin government-issued card, license,
3 Upon information and belief, the federally recognized tribes in Wisconsin are: Bad River Band of Lake Superior Chippewa, Forest County Potawatomi, Ho-Chunk Nation, Lac Court Oreilles Band of Lake Superior Chippewa, Lac du Flambeau Band of Lake Superior Chippewa, Menominee Indian Tribe, Oneida Tribe of Indians, Red Cliff Band of Lake Superior Chippewa, St. Croix Chippewa Indians, Sokaogan Mole Lake Community, and Stockbridge Munsee Community. 4 A voter using a college or university ID card must also present separate proof of current enrollment. A discussion of the proof-of-enrollment requirement appears in a September 12th GAB Memorandum. See GAB Memorandum, “Photo ID Implementation Issues – Student ID Cards,” Sept. 12, 2011, at 3-4.
Case 2:11-cv-01128-LA Filed 03/02/12 Page 22 of 79 Document 31A. 091
23
or document other than a driver’s license or state ID card; (3) driver’s licenses and
state ID cards issued by other states; (4) any local government-issued card, license,
or document; (5) any public or medical assistance benefit cards issued by any unit
of government; and (6) any governmental or private employer photo identification.
42. The only voters exempt from showing photo ID when voting in person
are electors with proof of confidential elector status due to the existence of a
protective order or similar proof of domestic violence. Wis. Stat. § 6.79(6).
43. The only voters exempt from providing photo identification when
voting absentee are military, overseas, or confidential voters, Wis. Stat. §§ 6.34(1),
6.87(4)(b)1; voters in nursing homes, qualified community based residential
facilities, qualified adult family homes, and qualified residential care apartment
complexes who vote with special voting deputies, Wis. Stat. § 6.875(6)(c), or
voters who live in such facilities that are not visited by special voting deputies and
who “submit[] with [their] absentee ballot[s] a statement signed by the same
individual who witnesses voting of the ballot that contains the certification of an
authorized representative of the complex, facility, or home that the elector resides
in the complex, facility, or home and the complex, facility, or home is certified or
registered as required by law, that contains the name and address of the elector,
and that verifies that the name and address are correct,” Wis. Stat. § 6.87(4)(b)5;
voters who are indefinitely confined because of age, physical illness or infirmity or
Case 2:11-cv-01128-LA Filed 03/02/12 Page 23 of 79 Document 31A. 092
24
are disabled for an indefinite period and who, by signing a statement to that effect,
require that an absentee ballot be sent to the voter automatically for every election,5
Wis. Stat. §§ 6.86(2)(a), 6.87(4)(b)2; and absentee voters who have not changed
their names or addresses since the prior time they voted absentee and who
previously provided proof of photo identification, Wis. Stat. § 6.87(4)(b)3.
44. 2011 Wisconsin Act 23 also imposed a requirement that in-person voters
sign the poll book in order to receive a ballot, unless for reason of disability the
person is unable to do so. Wis. Stat. § 6.79(2).
45. Under Wis. Stat. § 227.24, as affected by 2011 Wis. Act 21 and as
amended by 2001 Wis. Act 32, an agency’s proposed emergency administrative
rule in final draft form is subject to gubernatorial review before it can be submitted
for review by the relevant Standing Committee and the Joint Committee for the
Review of Administrative Rules (“JCRAR”) and—barring a legislative override—
ultimately promulgated. Wis. Stat. § 227.24(1)(e)1g (“An agency may not file an
emergency rule with the legislative reference bureau . . . and an emergency rule
may not be published until the governor approves the emergency rule in writing.”);
see also Wis. Stat. § 227.185 (gubernatorial approval required for non-emergency
administrative rules); Executive Order No. 50. If JCRAR determines a statement
5 In these situations, the elector must submit “with his or her absentee ballot a statement signed by the same individual who witnesses voting of the ballot which contains the name and address of the elector and verifies that the name and address are correct.” Wis. Stat. § 6.87(4)(b)2.
Case 2:11-cv-01128-LA Filed 03/02/12 Page 24 of 79 Document 31A. 093
25
of policy or an interpretation of a statute is a rule, it may compel an agency to issue
an emergency rule and submit it to the Governor under Act 21. Wis. Stat. §
227.26(2)(b). If the agency is so directed, then it must submit a Statement of
Scope for Defendant Walker’s review and approval or rejection. Wis. Stat. §
227.24(1)(e)1d. There is no binding statutory deadline by which the Governor
must respond to the agency. Even if the Governor approves the Statement of
Scope, he/she may still reject an emergency rule when it is subsequently submitted
in final draft form. Wis. Stat. § 227.24(1)(e)1g.
46. Initially, the GAB interpreted the photo ID law as not permitting the use
of technical college ID cards at the polls. See GAB Memorandum, “Photo ID
Implementation Issues – Student ID Cards,” Sept. 12, 2011, at 1-3. However, at its
November 9, 2011 meeting, the GAB reversed course and voted unanimously to
find that technical colleges are embraced by the photo ID law’s phrase “a . . .
college in this state that is accredited.” Wis. Stat. § 5.02(6m)(f). However, on
November 15, 2011, the JCRAR voted 6-4 to force the GAB to issue an emergency
rule codifying its interpretation of the photo ID law, a rule that must be submitted
to Defendant Walker under Act 21 before the legislative review process. The
Statement of Scope for an emergency rule addressing the use of technical college
ID cards was submitted to Defendant Walker on November 22, 2011, and he
approved it on December 2, 2011. See GAB Memorandum, “Promulgation of 3
Case 2:11-cv-01128-LA Filed 03/02/12 Page 25 of 79 Document 31A. 094
26
Emergency Rules as Directed by JCRAR,” for Dec. 13, 2011 Meeting, at 1-3.
Following its publication in the Administrative Register, the GAB approved the
statement on January 12, 2012. GAB staff subsequently drafted a rule which the
GAB approved, but the rule has not yet been promulgated in final form. Wis. Stat.
§ 227.24(1)(e)1d; Wis. Stat. § 227.24(1)(e)1g; GAB Memorandum, Approve
Proposed Rule Permitting Use of Technical College Student Identification Cards
for Voting, for the Feb. 7, 2012 Meeting, at 1.6
47. Given his power to approve or reject any emergency rule in final draft
form, Defendant Walker exercises direct control over the implementation of the
photo ID law and the scope and degree of the burdens it imposes on eligible
Wisconsin voters, particularly technical college student voters in Class 4 (see
infra). Defendant Walker also exercises veto power over any bill introduced to
prevent the promulgation of an emergency rule. Wis. Stat. § 227.26(2)(i).
48. Even if Defendant Walker approves the emergency rule concerning the
use of technical college ID cards, the Legislature may still block it by enacting a
statute. During the November 15th meeting, several of the JCRAR members who
voted with the majority expressed their belief that the Legislature did not intend to
include technical college ID cards, because an amendment designed expressly to
authorize their use as accepted photo ID (in addition to the statutory accredited-
6 See GAB 10 Relating to Voter Identification, Specifies a WTCS ID Card May Be Used for Voting, available at https://health.wisconsin.gov/admrules/public/Rmo?nRmoId=12383.
Case 2:11-cv-01128-LA Filed 03/02/12 Page 26 of 79 Document 31A. 095
27
college standard above) was defeated. The JCRAR’s actions continue to threaten
the exclusion of technical college ID cards from the list of accepted photo ID.
Furthermore, given the review process and publication and notice requirements,
the rule could not be made effective before the February 21, 2012 primary election,
though GAB did instruct elections officials throughout the state to accept technical
college ID cards. See GAB Memorandum, “Promulgation of 3 Emergency Rules
as Directed by JCRAR,” for Dec. 13, 2011 Meeting, at 2-3. At this pace, even
assuming Defendant Walker and the Legislature do not block the emergency rule,
it may not be in effect for the Spring Election and Presidential Preference Primary
on April 3, 2012 either.
49. There were 382,006 students enrolled in the technical college system in
the 2009-2010 academic year, or 8.8% of Wisconsin’s total voting-age population.7
Of these technical college students, there were approximately 60,000 minority
7 The 2010 Census dataset labeled “2010 Redistricting Data SF (PL 94-171)” was used to calculate this percentage.
Case 2:11-cv-01128-LA Filed 03/02/12 Page 27 of 79 Document 31A. 096
28
enrollees.8 By contrast, there are less than 20,000 minority students in the entire
University of Wisconsin (“UW”) System in the present academic year.9
50. Student voters at colleges or universities outside the technical college
system face their own challenges in casting a ballot. Upon information and belief,
all college and university ID cards in Wisconsin at the time the photo ID law was
enacted lacked one or more of the required elements: a signature, an issuance date,
and an expiration date not later than 2 years after the issuance date. In early
September, the GAB voted to permit the use of stickers to supply the missing
required information and thereby bring non-complaint student ID cards into
compliance. See GAB Memorandum, “Photo ID Implementation Issues – Student
ID Cards,” Sept. 12, 2011, at 4-5. Upon information and belief, this method is
significantly less expensive than digitally printing the missing information on
wholly redesigned ID cards. At its September 27, 2011 meeting, members of the
Wisconsin State Legislature’s JCRAR expressed concerns about the use of stickers
and communicated their belief that the GAB could only lawfully implement this
8 The Wisconsin Technical College System’s publicly available data is less than complete. 27,709 students did not report race or ethnicity, and though 2,210 are listed as “multi-ethnic,” there is no more specific information. The figure reported above is the summation of the American Indian, Asian, black, Hispanic, and Hawaiian or Pacific Islander populations for 2009-2010, which is 59,673 students. Wisconsin Technical College System, FY 2001-2010 Systemwide Enrollment by Sex and Race/Ethnicity, available at http://www.wtcsystem.edu/reports/data/factbook/pdf/ethnicity.pdf. 9 The University of Wisconsin System, Students Statistics, Fall 2011-12, Headcount Enrollment by Race/Ethnicity and Age, available at http://www.wisconsin.edu/opar/ssb/2011-12/pdf/r_b107_tot.pdf.
Case 2:11-cv-01128-LA Filed 03/02/12 Page 28 of 79 Document 31A. 097
29
policy by adopting an administrative rule. Following that meeting, Defendant
Kennedy submitted a memo to the GAB, urging it to reverse course. See GAB
Memorandum, “Administrative Rulemaking Process and Timeline,” Oct. 6, 2011,
at 1-2. However, at its November 9, 2011 meeting, the GAB reaffirmed that
colleges and universities could bring their ID cards into compliance with stickers
that included the missing information. However, on November 15, 2011, the
JCRAR voted 6-4 to force the GAB to issue an emergency rule codifying the
sticker supplementation policy, a rule that will first be submitted to Defendant
Walker under 2011 Wis. Act 21. See infra. Therefore, the JCRAR’s actions
threaten to block the use of stickers to bring student ID cards into compliance with
the photo ID law.
51. In order to promulgate an emergency rule allowing colleges and
universities to take advantage of stickers as a cost-efficient solution, the GAB must
first submit a Statement of Scope for Defendant Walker’s review and approval or
rejection. Wis. Stat. § 227.24(1)(e)1d. As of March 2, 2011, the GAB had still not
submitted a Statement of Scope to Defendant Walker. See GAB Memorandum,
“Promulgation of 3 Emergency Rules as Directed by JCRAR,” for Dec. 13, 2011
Meeting, at 2.10 Given his power to reject this emergency rule in its final draft
10 Despite this inaction, upon information and belief, a number of college and university administrations are relying on stickers to affix one or more of the missing pieces of information, such as a 2-year expiration date, to their students’ revised voting-only ID cards.
Case 2:11-cv-01128-LA Filed 03/02/12 Page 29 of 79 Document 31A. 098
30
form, Wis. Stat. § 227.24(1)(e)1g, and his power to veto any legislation attempting
to override the rule, Wis. Stat. § 227.26(2)(i), Defendant Walker exercises direct
control over the implementation of the photo ID law and the scope and degree of
the burdens it imposes on eligible Wisconsin voters, particularly student voters
with out-of-state drivers’ licenses who are members of Class 3 (see infra).
52. Even if GAB initiates the rulemaking process on the sticker
supplementation option, given certain notice and publication requirements, as well
as the lack of any binding deadline by which the Governor must respond to the
submitting agency, it will be impossible to obtain legal clarity in a timely manner
on the validity of using stickers to bring student ID cards into compliance with the
photo ID law. Wisconsin colleges and universities require clarity on this issue as
soon as possible, and the GAB needs to begin training poll workers well in
advance of this year’s upcoming elections. See GAB Memorandum,
“Administrative Rulemaking Process and Timeline,” Oct. 6, 2011, at 2-4.11
53. Forcing the GAB to issue administrative rules to implement a less
expensive fix for student ID cards such as stickers and to ensure that technical
11 In a memorandum for the GAB’s December 13, 2011 meeting, Defendant Kennedy wrote: “Staff remains concerned that JCRAR’s actions on these three matters, and the general exercise of §227.26(2), Wis. Stats., authority for day-to-day election administration issues, affect the ability of the G.A.B. to provide timely and uniform advice for the proper administration of elections, particularly with sufficient notice such that proper training of election officials may be conducted. As a result of 2011 Act 21, the process to complete promulgation of an emergency rule is more complicated and lengthy.” See GAB Memorandum, “Promulgation of 3 Emergency Rules as Directed by JCRAR,” for Dec. 13, 2011 Meeting, at 2.
Case 2:11-cv-01128-LA Filed 03/02/12 Page 30 of 79 Document 31A. 099
31
college student ID cards will be accepted has already increased the probability that
numerous colleges and universities will fail to issue compliant student ID cards in
time for upcoming elections this year.
54. Technical college ID cards will need to conform to the same statutory
specifications outlined for all college and university ID cards, but these schools
have no incentive to begin this time-consuming and costly process without an
assurance that such cards will in fact be usable for voting purposes. Until the
conclusion of the emergency rulemaking and review process is completed for
“GAB 10 Relating to Voter Identification, Specifies a WTCS ID Card May Be
Used for Voting,” technical colleges will lack a conclusive legal answer on the
categorical validity of their students’ ID cards.
55. Upon information and belief, some private and University of Wisconsin
System (“UW System”) campuses, as well as some technical colleges, have started
to issue, or stated they will issue, student ID cards that comply with the photo ID
law’s specifications.
56. Upon information and belief, a number of Wisconsin private colleges
and UW System campuses have either started to issue, or stated they will issue,
separate voting-only ID cards. Upon information and belief, the GAB has
reportedly approved a design for the UW System voting-only ID cards, but it has
Case 2:11-cv-01128-LA Filed 03/02/12 Page 31 of 79 Document 31A. 100
32
not issued any formal and publicly available documentation approving any college
or university’s new voting-only ID cards.
57. At the November 9, 2011 hearing, Defendant Kevin Kennedy stated that
the GAB will be reviewing every Wisconsin college or university ID card for its
conformity to the photo ID law and for its security. The GAB will inform
municipal clerks and poll workers throughout Wisconsin as to which college or
university ID cards may be accepted at the polls and which may not be accepted.
Therefore, the validity of each voting-only ID card issued by a college or
university will ultimately be determined by the GAB. Until the GAB formally and
publicly approves a particular college or university’s ID card, given the uncertainty
and policy reversals surrounding the use of student ID cards to vote in Wisconsin,
students at that school will have no assurance that these separate voting-only ID
cards will in fact be treated as accepted photo ID for voting purposes in 2012.
58. Upon information and belief, other Wisconsin colleges and universities
have expressed that they have no plans at this time to issue any kind of voting-
compliant student ID cards.
FACTS RELATED TO OBTAINING WISCONSIN PHOTO ID AND THE
UNDERLYING DOCUMENTS REQUIRED BY WISCONSIN DMV
59. The Wisconsin DMV, a division of WisDOT, is required to issue state
ID cards free of charge if the applicant is a U.S. citizen, will be at least 18 years
Case 2:11-cv-01128-LA Filed 03/02/12 Page 32 of 79 Document 31A. 101
33
old by the next election, and requests that the card be provided free for voting
purposes. Wis. Stat. § 343.50(5)(a), as amended by 2011 Wis. Act 23 § 138. A
voter may not receive a state ID card for free if he or she currently possesses an
unexpired Wisconsin driver’s license. Act 23 failed to make duplicate ID cards
(replacements for lost or stolen IDs) issued for voting purposes free of charge, but
this was changed by subsequent legislation which went into effect at the beginning
of January 2012.
60. Defendants’ public education efforts and training of DMV, GAB, and
local officials involved in election administration remain woefully inadequate to
inform eligible Wisconsin voters of the specific requirements for voting under Act
23 and ensure uniform, non-arbitrary treatment during the state ID card application
process. For example, upon information and belief, numerous local officials and
even DMV employees continue to erroneously inform voters at polling places and
at DMV offices that the address on an accepted photo ID must reflect the voter’s
current address. Moreover, upon information and belief, some voters who have
applied for state ID cards for voting purposes are still being charged fees for
duplicate ID cards and/or are unaware of the changed requirements. As a
consequence, voters face arbitrary, unlawful, and unfair treatment when applying
for duplicate ID cards for voting purposes. This demonstrates Defendants’
Case 2:11-cv-01128-LA Filed 03/02/12 Page 33 of 79 Document 31A. 102
34
widespread failure to train and educate county and municipal clerks, DMV
employees, and poll workers on what the photo ID law does and does not mandate.
61. As of the week of January 23, 2012, DMV had 92 offices in the State of
Wisconsin, an increase from 88 offices when the photo ID law was enacted.
62. Only one DMV office in Wisconsin has any weekend hours, and the
Madison Odana Renewal Center only processes renewal license and ID card
applications. Thus, there is no DMV office in Wisconsin that will process an
original driver’s license or state ID card application on the weekend.
63. No DMV office in Wisconsin stays open later than 5:30 p.m.
64. Not all DMV offices are open full-time. Each county must have at least
20 hours per week of driver’s license and state ID card services, and a number of
DMV offices are open only 20 hours a week. Wis. Stat. § 110.08(5)(a).
65. Upon information and belief, WisDOT has no plans to establish and
deploy mobile DMV units capable of servicing voters who live far from a DMV
office and/or otherwise have difficulty traveling to a DMV office to obtain a state
ID card for voting purposes.
66. An individual who resides in Wisconsin and wishes to obtain a free
Wisconsin ID card for voting purposes must surrender any valid out-of-state
driver’s license he/she possesses. Wis. Stat. § 343.50(1)(b), as amended by 2011
Wis. Act 23 § 130.
Case 2:11-cv-01128-LA Filed 03/02/12 Page 34 of 79 Document 31A. 103
35
67. A person with a driver’s license from another state who wishes to obtain
a Wisconsin driver’s license must pay a fee. Wis. Stat. § 343.21. There is no fee
waiver for obtaining a driver’s license, even if that license will constitute the
individual’s sole form of accepted photo ID for voting purposes.
68. Wisconsin DMV offices require first-time applicants for state ID cards
and driver’s licenses to present: (1) proof of name and date of birth, (2) proof of
identity, (3) proof of citizenship, legal permanent resident or conditional resident
status of the United States, or legal presence in the United States, (4) proof of
Wisconsin residency, and (5) a Social Security Number. Wis. Admin. Code Trans.
§ 102.15(2). “First-time applicants” encompass all applicants who have not
previously held a Wisconsin driver’s license or ID card, even if they have such
licenses or cards from other states.
69. Applicants for a renewal, reinstatement, reissue, or duplicate12
Wisconsin driver’s license or state ID card must present proof of identity, Wis.
Admin. Code Trans. § 102.15(2)(b), and may be required to present proof of
citizenship, legal permanent resident or conditional resident status of the United
Status, or legal presence in the United States. Id. § 102.15(2)(bm)2.13 Applicants
12 A replacement for a lost or stolen identification card (or driver’s license) is called a “duplicate.” 13 The DMV website suggests that any applicant who has previously held a Wisconsin driver’s license or state ID card more than 8 years ago must submit all the same documentation as a first-time applicant: “If you have held a driver license in the past eight years and now wish to apply
Case 2:11-cv-01128-LA Filed 03/02/12 Page 35 of 79 Document 31A. 104
36
for a renewal, reinstatement, reissue, or duplicate Wisconsin driver’s license or
state ID card following certain actions, such as suspension, revocation, or
cancellation of the prior license or ID card, must also provide proof of name and
date of birth and proof of residency. Id. § 102.15(2)(c). Applicants for an original,
renewal, reinstatement, reissue, or duplicate driver’s license or state ID card may
be required to provide proof of residency if the applicant uses certain documents to
prove name and date of birth or identity, or if the documents do not have a current
residential address or do not include a current acceptable Wisconsin residential
address. Id. § 102.15(4m).
70. Voters who lack the necessary primary documents for an original,
renewal, duplicate, or reinstatement driver’s license or ID card often must travel to
and interact with multiple government offices and entities, such as the vital records
office of their birth state and the Social Security Administration, in order to obtain
for an original ID card, you would only be required to provide proof of identity upon application for your ID card.” For those whose licenses or ID cards expired within the last 8 years, a separate regulation provides that identity is proven where the DMV is able to locate a record with a digital photo of the applicant for a duplicate, reinstated, or renewed license or state ID card. See Wis. Admin. Code Trans. § 102.15(4)(c) (“A person applying without a personal appearance to reinstate a suspended or revoked license or identification card or to renew a license subject to s. Trans 102.03 (2) and (5) or obtain a duplicate license or identification card, if all of the following apply: 1. The department is able to produce an acceptable photograph and facsimile signature for the individual from its digital image computer records. 2. The person's name as shown on the license is unchanged. 3. The person is a Wisconsin resident.”). It is unclear whether this alternative procedure to prove identity is uniformly applied to all duplicate, reinstatement, and renewal applicants. In any event, based on when the person applicant last obtained a DMV product, there may not be any digital photo of the person on file. Upon information and belief, typically the photos contained in the system date from 2005 onward, and the oldest photos are from 1992.
Case 2:11-cv-01128-LA Filed 03/02/12 Page 36 of 79 Document 31A. 105
37
the underlying documents needed to secure a state ID card. The process to obtain
documents required in order to obtain a photo ID card can be extremely complex
and difficult, particularly for individuals with lower levels of education, literacy,
and resources, and limited or no access to information or reliable transportation.
71. If voters lack one or more of the documents required in order to obtain a
Wisconsin state ID card, Defendants do not normally provide direct or
individualized assistance to the voters to obtain those documents.
72. Rules promulgated by WisDOT provide that for a driver’s license or
state ID card application satisfactory proof of name and date of birth includes the
following: (a) for a person born in Wisconsin, a certified copy of the person’s
Wisconsin birth certificate; (b) for a person born in another jurisdiction, other than
a Canadian province, a certified copy of his or her birth certificate or the equivalent
document from that other jurisdiction or a certificate of birth abroad issued by the
U.S. Department of State; (c) a U.S. passport; (d) an expired Wisconsin driver’s
license; (e) an expired Wisconsin ID card; (f) a U.S. certificate of naturalization
(which costs $345.00); (g) a certificate of U.S. citizenship (which costs $600.00);
(h) a Native American ID card which was issued by a federally recognized tribe or
a band of a federally recognized tribe in Wisconsin, includes a photograph and
signature, and has been approved by the Secretary of WisDOT; (i) a court order
under seal related to the adoption or divorce or to a name or gender change that
Case 2:11-cv-01128-LA Filed 03/02/12 Page 37 of 79 Document 31A. 106
38
includes the person’s current full legal name, date of birth and in the case of a
name change or divorce order, the person’s prior name; (j) an armed forces of the
United States common access card or DD Form 2 ID card issued to military
personnel; (k) a Department of Homeland Security/Transportation Security
Administration (“DHS/TSA”) transportation worker identification credential; or
various immigration documents. Id. § 102.15(3).
73. If the applicant is unable to provide accepted proof of name and date of
birth and the documents are “unavailable” (defined in Wis. Admin. Code Trans. §
102.15(1) to exclude documents the applicant merely forgot to bring, as well as
lost or destroyed documents where a replacement original or certified copy may be
obtained upon request), then the applicant may petition the DMV Administrator,
Defendant Judd, to consider alternative documentation of name and date of birth.
Wis. Admin. Code Trans. § 102.15(3)(b). Defendant Judd may delegate to her
subordinates the authority to accept or reject such alternative proof of name and
date of birth, but there are seemingly no rules or standards guiding that
determination. Id. § 102.15(3)(c). Upon information and belief, no signage or
other clear public notice at DMV offices or on the DMV website announces that
this alternative procedure even exists.
74. WisDOT rules provide that for a driver’s license or state ID card
application, satisfactory proof of citizenship, legal permanent resident status,
Case 2:11-cv-01128-LA Filed 03/02/12 Page 38 of 79 Document 31A. 107
39
conditional resident status or legal presence includes a U.S. state or local
government-issued birth certificate, a valid U.S. passport, a certificate of U.S.
citizenship (which costs $600.00), a U.S. Certificate of naturalization (which costs
$345.00), a DHS/TSA transportation worker identification credential, and a variety
of immigration documents. Wis. Admin. Code Trans. § 102.15(3m). Therefore, a
first-time applicant for a Wisconsin ID card who lacks a U.S. passport, has no
immigration and naturalization history, and does not work for DHS/TSA, must
either produce a certified copy of his/her birth certificate to obtain a Wisconsin
photo ID card or pay at least $55.00 to obtain a U.S. passport card.
75. Prior to 2007, when Wisconsin law was amended to comply with the
REAL ID Act, individuals could obtain Wisconsin driver’s licenses and state ID
cards without presenting documentary proof of citizenship. 2005 Wis. Act 126 §
2; 2007 Wis. Act 20 §§ 3245, 3257, 3379; Wis. Stat. §§ 343.165(1), 343.14(2)(es),
343.50(4). Now this documentary proof is mandatory.
76. Plaintiffs Ruthelle Frank, Shirley Brown, Nancy Lea Wilde, Eddie Lee
Holloway Jr., Mariannis Ginorio, Frank Ybarra, Sam Bulmer, Pamela Dukes, Carl
Ellis, and Dartric Davis have no document listed in Wis. Admin. Code Trans. §
102.15 that they can use to prove their name and date of birth and U.S. citizenship.
77. While Wis. Admin. Code Trans. § 102.15 does not set forth any
alternative procedure for ID card applicants unable to obtain one of the listed forms
Case 2:11-cv-01128-LA Filed 03/02/12 Page 39 of 79 Document 31A. 108
40
of documentary proof of U.S. citizenship, Defendant Judd has nevertheless
suggested that some alternative procedure to prove citizenship, name and date of
birth, and possibly other documentary proof requirements, may exist. Upon
information and belief, some applicants for whom there is no birth certificate on
file at a vital records office have been told they can satisfy the proof of citizenship
requirement by: (1) obtaining a document from the relevant vital records office
certifying that there is no record of birth on file; and (2) if requested, presenting
alternative documents evidencing the person’s birth, including but perhaps not
limited to hospital certificates and baptismal certificates. DMV informed Plaintiff
Nancy Lea Wilde that they could make use of an alternative procedure involving
the certification of a lack of a birth record. To the extent such a procedure exists,
upon information and belief, DMV does not consistently or routinely inform voters
of, or apply, this procedure. A similarly situated voter like Plaintiff Shirley Brown,
whose birth in Louisiana was never registered and who has no birth certificate, was
never offered an opportunity to prove her eligibility for an ID card in this manner.
It remains unclear whether DMV offices are in fact issuing ID cards under this
alternative procedure.
78. Upon information and belief, there are no written rules, standards, or
procedures governing who is given notice of any alternative procedure that may
exist, or regarding the type and quantity of alternative documents that may suffice
Case 2:11-cv-01128-LA Filed 03/02/12 Page 40 of 79 Document 31A. 109
41
to meet the requirement. Moreover, upon information and belief, there are no
written rules, standards, or procedures governing the DMV’s review of
applications making use of any alternative procedure that may exist. Instead, each
application is reviewed on an ad hoc basis by DMV officials unconstrained by
specific and definite rules and standards.
79. Upon information and belief, some applicants with inaccurate birth
certificates due to name misspellings, name transpositions, and other defects may
also be allowed to substitute alternative documentary proof and obtain photo ID
cards. However, upon information and belief, DMV lacks any notice procedures
or standards for applying the suggested alternative procedure. DMV employees
never offered any such alternative procedure to persons including but not limited to
Plaintiffs Ruthelle Frank and Eddie Lee Holloway, Jr.
80. To the extent DMV is offering some applicants an alternative means of
satisfying the name and date of birth and/or proof of citizenship (when a birth
certificate is “unavailable” or otherwise insufficient) and/or other documentary
proof requirements for a state ID card, upon information and belief, the alternative
scheme is marked by a standard-less exercise of discretion and has resulted in the
arbitrary and disparate treatment of similarly situated voters who are attempting to
acquire Wisconsin’s accepted photo ID of last resort.
Case 2:11-cv-01128-LA Filed 03/02/12 Page 41 of 79 Document 31A. 110
42
81. The inconsistent and seemingly arbitrary treatment of voters without
birth certificates demonstrates that DMV employees have not been adequately
trained on the photo ID law, on whatever rules, policies, and procedures may exist
to handle ID card applicants without birth certificates or with inaccurate birth
certificates, and/or on how to handle and resolve situations that are not addressed
by existing rules, policies, and procedures.
82. Persons born in Wisconsin can obtain certified copies of their birth
certificates from the Wisconsin Vital Records Office in the Wisconsin Department
of Health Services or from local registrars. Wisconsin normally charges $20.00 to
locate and make a certified copy of a birth certificate, and the voter generally must
bear his or her own costs in obtaining the birth certificate.
83. Fees to obtain birth certificates for persons born outside Wisconsin vary
and can be even higher than Wisconsin’s fee. Minnesota, for example, charges
$26.00 for a certified copy of a birth certificate.
84. Some states will charge a fee for merely searching their records,
regardless of whether or not a record of birth is found. The birth certificate
application forms for both Wisconsin and Louisiana, the birth states of Plaintiffs
Nancy Lea Wilde and Shirley Brown, respectively, charge for a “search” of birth
records, not just for copies that are in fact located.
Case 2:11-cv-01128-LA Filed 03/02/12 Page 42 of 79 Document 31A. 111
43
85. Certain states’ and counties’ vital records offices require a government-
issued photo ID to obtain a certified copy of one’s birth certificate or otherwise set
forth a restrictive list of documents that must be shown in order to obtain a
certified copy of a birth certificate, including offices in Illinois (Dartric Davis,
Pamela Dukes, Carl Ellis, and Eddie Lee Holloway, Jr.), Kansas (Sam Bulmer),
Puerto Rico (Ginorio), and Wisconsin (Ybarra). Often these document lists are
restricted to documents that many voters, including poor, homeless, and/or
informally housed individuals, are unlikely to possess.
86. In many states, including Wisconsin, identification requirements
imposed on individuals differ in practice from the official statutory or regulatory
requirements and are inconsistently applied to similarly situated applicants. These
requirements are often inconsistently or misleadingly stated in publicly available
documents, including on official websites and on the applications themselves, even
for different vital records offices within the same state.
87. Wisconsin state law, Wis. Stat. § 69.21, sets forth that state and local
registrars “shall” issue a certified copy of a birth certificate to a person “with a
direct and tangible interest” in the matter, who pays the required fee.
Administrative rules confirm that the “state registrar and local registrars shall
provide certified documentary proof of a vital event for individual use to any
person who requests that proof and has a direct and tangible interest as defined in
Case 2:11-cv-01128-LA Filed 03/02/12 Page 43 of 79 Document 31A. 112
44
s. 69.20 (1), Stats.” Wis. Admin. Code DHS § 142.04. However, the birth
certificate application form requires that the person requesting a certified copy of a
birth certificate provide “acceptable identification,” in the form of either a “current
valid photo ID,” i.e., a Wisconsin or out-of-state driver’s license or state photo ID
card, or two items from a limited list of types of secondary identification
documents. The secondary list includes only the following: a government-issued
employee I.D. card or badge with photo, a U.S. passport, a checkbook or
bankbook, a “major” credit card, a health insurance card, a “recent” dated, signed
lease, a “recent” utility bill, or “recent” traffic ticket. The application available on
the Wisconsin Department of Health Services’ (“DHS”) website states that the
identification requirement applies to both in-person and mail-in applications. At
the time of this filing, numerous county registrar websites continued to state that
no identification is required if the certified copies are mailed to the applicant. For
instance, the birth certificate application on the Dane County Register of Deeds
website calls for “valid photo ID,” but makes clear that this is only “required to
pick up [the certificate] in person.” As a result, similarly situated voters
throughout Wisconsin have to follow different identification requirements in
obtaining their birth certificates depending on the county in which they were born.
88. WisDOT rules provide that for a driver’s license or state ID card
application, satisfactory proof of identity includes only the following: (a) a valid
Case 2:11-cv-01128-LA Filed 03/02/12 Page 44 of 79 Document 31A. 113
45
driver’s license, including a license from another jurisdiction, except a Canadian
province; (b) military discharge papers; (c) a U.S. government and military
dependent ID card; (d) a valid photo identification card issued by Wisconsin or
another jurisdiction, except a Canadian province; (e) a marriage certificate or
certified copy of judgment of divorce; (f) a Social Security Card; (g) an additional
document that would be sufficient to prove name and date of birth, but was not
used to prove name and date of birth; or (h) a DHS/TSA transportation worker
identification credential. Wis. Admin. Code Trans. § 102.15(4).
89. For many low-income eligible Wisconsin voters, presenting a Social
Security Card (“SSC”) is the only method to prove identity to the Wisconsin
DMV. In order to obtain an SSC, the Social Security Administration generally
requires an individual to provide evidence of identity. To obtain an original SSC,
the applicant must establish his/her U.S. citizenship, age, and identity. For a
replacement SSC, the applicant must provide documents to establish his/her U.S.
citizenship and identity. Upon information and belief, identification requirements
that SSC applicants are told they must satisfy often differ in practice from the
requirements set forth in law. These requirements are inconsistently stated and
applied to applicants across Wisconsin’s SSA offices and even to different
applicants at the same SSA office.
Case 2:11-cv-01128-LA Filed 03/02/12 Page 45 of 79 Document 31A. 114
46
90. WisDOT rules provide that to obtain a driver’s license or state ID card,
an individual may be required to provide a form of proof that contains “a current
acceptable Wisconsin residence street address.” Id. § 102.15(4m).14 A document
listing a post office box or commercial mail receiving agency as the mailing
address is not acceptable.
91. Under official state regulations, satisfactory proof of residency includes
only the following: (a) a utility bill for water, gas, electric or landline phone
service which is at least 30 days old; (b) a paycheck or stub with the customer’s
name and address, and the employer’s name and address; (c) an account statement
at least 30 days old from a Wisconsin financial institution; or (d) mortgage
documents for a residential real property located in Wisconsin. Id. §
102.15(4m)(b), (c), (d), (f).15
92. The Wisconsin DMV’s website sets out a broader list of purportedly
acceptable documents to prove residency. The policy authorizing the use of such
documents has not, however, been promulgated as an official administrative rule
and, for the reasons discussed in paragraph 47, may not be legally binding and
could be blocked or overridden by the actions of Defendant Walker or the
Legislature. Moreover, even the unofficial website list of accepted documentary
14 The Wisconsin DMV website states that this is mandatory for all first-time applicants aged 18 years or older. 15 So numbered in original; no (a) or (e) are listed in the regulations.
Case 2:11-cv-01128-LA Filed 03/02/12 Page 46 of 79 Document 31A. 115
47
proof of residency fails to expressly include such documents as Internet bills,
provide a procedure to establish residency for unsheltered homeless persons who
lack a relationship with a social service organization, or provide a procedure for
other voters who do not receive bills, bank accounts, or other permissible
documents at an allowable mailing address.
93. Recently, Wisconsin DMV updated its website to include a policy
allowing individuals experiencing homelessness to prove residency. Under this
policy, an ID card applicant lacking a current residence address may obtain a letter
from a shelter or other private or public “social service organization” or “social
service agency” (terms which are not defined) with whom he or she has a
relationship, attesting to the individual’s residency and stating that the organization
will receive an ID card in the mail on the applicant’s behalf. The letter must be on
official letterhead and certify that the person working with the social service
provider knows the applicant, the applicant’s name, and that the individual
frequents the residence listed for purposes of securing an ID card (which could
include a homeless shelter or other location where a homeless person may spend
time or return to). At this time, the policy remains vague, and it is unclear how
DMV will interpret and apply it, or whether there has been sufficient training for
employees and guidance for social service organizations to ensure proper and
consistent treatment. Moreover, it appears that the policy relies solely on the
Case 2:11-cv-01128-LA Filed 03/02/12 Page 47 of 79 Document 31A. 116
48
willingness of social service organizations to verify a homeless individual’s
residence and to receive and hold ID cards mailed to them. As a consequence, the
policy excludes from protection homeless individuals without ties to social service
organizations and those with ties to organizations that cannot or will not complete
the required certification, and it may exclude from protection those homeless
individuals who move between locations or social service organizations, either
voluntarily or involuntarily.
THE PHOTO ID LAW’S IMPACT ON RACIAL MINORITIES IN
MILWAUKEE COUNTY, WISCONSIN AND THE STATE OF
WISCONSIN
94. The photo ID law is a voting standard, practice, or procedure under 42
U.S.C. § 1973(a).
95. African-American and Hispanic/Latino voters in Milwaukee County,
Wisconsin and, upon information and belief, in the State of Wisconsin as a whole
will be individually disfranchised and collectively disempowered by the photo ID
law.
96. African-American and Hispanic/Latino voters in Milwaukee County,
Wisconsin and, upon information and belief, in the State of Wisconsin
disproportionately lack accepted photo ID and disproportionately lack the
documents necessary to obtain a free Wisconsin state ID card, when compared to
their white counterparts. As a result, these minority voters in Milwaukee County,
Case 2:11-cv-01128-LA Filed 03/02/12 Page 48 of 79 Document 31A. 117
49
Wisconsin and in the State of Wisconsin are less likely to be able to obtain
accepted photo ID than their white counterparts.
97. These statistically significant racial disparities in rates of accepted photo
ID and underlying document possession stem from a variety of social and
historical factors. African-American and Hispanic/Latino voters in Milwaukee
County, Wisconsin and in the State of Wisconsin have lower income, lower
employment rates, lower levels of education, and lower access to information than
their white counterparts.
98. Members of these minority groups in Milwaukee County, Wisconsin
and, upon information and belief, in the State of Wisconsin will be denied the
right to vote on account of race or color by the photo ID law. Since minority
voters will be disproportionately barred from voting under this strict photo ID
requirement, the political processes in Milwaukee County, Wisconsin and, upon
information and belief, in the State of Wisconsin, are not equally open to
participation by African-American and Hispanic/Latino voters, and they will
therefore have less opportunity than other members of the electorate to participate
in the political process and to elect representatives of their choice.
99. These statistically significant disparities dilute the voting strength of
African-American and Hispanic/Latino voters in Milwaukee County, Wisconsin
Case 2:11-cv-01128-LA Filed 03/02/12 Page 49 of 79 Document 31A. 118
50
and, upon information and belief, in the State of Wisconsin, and thus impair their
ability to elect representatives of their choice.
100. The recorded racial disparities in terms of possession of accepted photo
ID and the primary documents DMV accepts for Wisconsin state ID card
applications are statistically significant and demonstrate that the photo ID law has
reduced the probability that votes cast by African-American and Hispanic/Latino
residents of Milwaukee County, Wisconsin and, upon information and belief, the
State of Wisconsin will be counted.
101. An alternative election scheme is available that does not have a
disproportionate negative impact on the opportunity of African-American and
Hispanic/Latino voters in Milwaukee County, Wisconsin and, upon information
and belief, the State of Wisconsin to participate in the political process and elect
representatives of their choice, as compared to other members of the electorate.
102. African-American and Hispanic/Latino voters bear the effects of racial
discrimination in education, employment, housing, and health, which have
hindered their ability to participate effectively in the political process. The photo
ID law operates upon this existing vulnerability to disfranchise African-American
and Hispanic/Latino voters in Milwaukee County, Wisconsin and the State of
Wisconsin.
Case 2:11-cv-01128-LA Filed 03/02/12 Page 50 of 79 Document 31A. 119
51
103. Certain political campaigns in Milwaukee County, Wisconsin and the
State of Wisconsin have been characterized by overt and subtle racial appeals, as
well as racialized statements by voters.
104. There has been a lack of responsiveness on the part of elected officials
to the particularized needs of the members of the African-American and
Hispanic/Latino communities in Milwaukee County, Wisconsin and the State of
Wisconsin.
105. The policies and justifications proffered in defense of the photo ID law
are tenuous and not supported by the evidence.
PLAINTIFF CLASS ALLEGATIONS
CLASS 1
106. Class 1 is defined as: all eligible Wisconsin voters who lack accepted
photo ID, lack one or more of the documents DMV accepts to obtain a Wisconsin
ID card for voting purposes, and face legal or systemic practical barriers to
completing the process of obtaining an ID.
107. This class of eligible Wisconsin voters who lack accepted photo ID
includes—but is not limited to—individuals who are unable to obtain photo ID
from the DMV because they: were never issued birth certificates or lack accurate
birth certificates; are unable to obtain certified copies of their birth certificates due
Case 2:11-cv-01128-LA Filed 03/02/12 Page 51 of 79 Document 31A. 120
52
to their birth states’ identification requirements; lack and cannot obtain proof of
Wisconsin residency; and lack and cannot obtain any documentary proof of
identity accepted by the Wisconsin DMV.
108. This class is sufficiently numerous such that joinder of all members is
impracticable. There are questions of law and questions of fact that are common to
the class. Class 1 Representatives Ruthelle Frank, Shirley Brown, Nancy Lea
Wilde, Eddie Lee Holloway, Jr., Mariannis Ginorio, Frank Ybarra, Sam Bulmer,
Dartric Davis, Justin Luft, Barbara Oden, DeWayne Smith, Sandra Jashinski, and
Anthony Judd’s claims are typical of the claims of the class, and the
representatives will fairly and adequately protect the interests of the class.
109. Prosecuting separate actions by individual class members would create
a risk of: (a) inconsistent or varying adjudications with respect to individual class
members that would establish incompatible standards of conduct for Defendants;
or (b) adjudications with respect to individual class members that, as a practical
matter, would be dispositive of the interests of the other members not parties to the
individual adjudications or would substantially impair or impede their ability to
protect their interests. Additionally, by denying the right to vote to eligible
Wisconsin voters who have been unable to obtain one or more of the primary
documents accepted by DMV for the Wisconsin state ID card application,
Defendants have acted or refused to act on grounds that apply generally to the
Case 2:11-cv-01128-LA Filed 03/02/12 Page 52 of 79 Document 31A. 121
53
class, so that final injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole.
CLASS 2
110. Class 2 is defined as: all eligible Wisconsin voters who lack accepted
photo ID and for whom the costs incurred in obtaining a Wisconsin state ID card,
including but not limited to the cost of obtaining certified and accurate copies of
birth certificates or any other documentary proof accepted by the Wisconsin DMV
or the cost of traveling to the nearest Wisconsin DMV office, would constitute a
financial burden.
111. The photo ID law will force a significant percentage of eligible, poor
Wisconsin voters to make a choice between, on the one hand, paying for a birth
certificate and/or marriage certificate and/or incurring significant travel costs in
order to acquire a state ID card and, on the other hand, paying for basic life
necessities. This constitutes an at least substantial burden, which is undue and
unconstitutional burden under the Equal Protection Clause of the Fourteenth
Amendment.
112. This class is sufficiently numerous such that joinder of all members is
impracticable. According to the 2005-2009 American Community Survey
(“ACS”) 5-Year Estimates, approximately 357,912 Wisconsin residents ages 18 to
64 and 57,900 Wisconsin residents ages 65 years and older had incomes below 100
Case 2:11-cv-01128-LA Filed 03/02/12 Page 53 of 79 Document 31A. 122
54
percent of the federal poverty level (“FPL”), and approximately 161,664
Wisconsin residents ages 18 to 64 and 16,183 Wisconsin residents ages 65 years
and older had incomes below 50 percent of the FPL. According to the 2006-2010
American Community Survey (“ACS”) 5-Year Estimates, approximately 10.3% of
the Wisconsin voting-age population—or 443,082 individuals—had incomes
below the FPL in the last 12 months. According to a study conducted by the
Wisconsin Department of Children and Families, in November 2008, there were
12,608 families who were receiving food stamps in the State of Wisconsin but had
zero earned or unearned income.
113. There are questions of law and questions of fact that are common to
the class. Class 2 Representatives Pamela Dukes, Mariannis Ginorio, Ruthelle
Frank, Eddie Lee Holloway, Jr., Carl Ellis, Frank Ybarra, Sam Bulmer, and Dartric
Davis’s claims are typical of the claims of the class, and the representative parties
will fairly and adequately protect the interests of the class.
114. Prosecuting separate actions by individual class members would create
a risk of: (a) inconsistent or varying adjudications with respect to individual class
members that would establish incompatible standards of conduct for Defendants;
or (b) adjudications with respect to individual class members that, as a practical
matter, would be dispositive of the interests of the other members not parties to the
individual adjudications or would substantially impair or impede their ability to
Case 2:11-cv-01128-LA Filed 03/02/12 Page 54 of 79 Document 31A. 123
55
protect their interests. Additionally, given that Defendants are forcing eligible
Wisconsin voters to spend their scarce financial resources in order to cast their
votes, Defendants have acted or refused to act on grounds that apply generally to
the class, so that final injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole.
CLASS 3
115. Class 3 is defined as all Wisconsin voters who are residents of
Wisconsin for voting purposes, who lack any accepted photo ID, and who would
be forced to surrender an out-of-state driver’s license in order to obtain a free
Wisconsin ID card for voting purposes.
116. This class includes—but is not limited to—currently enrolled students
at accredited Wisconsin colleges or universities whose colleges or universities
have not issued student ID cards that have been found compliant with the photo ID
law, and who would be forced to surrender out-of-state driver’s licenses in order to
obtain free Wisconsin ID cards that they need in order to vote.
117. This surrender rule imposes a material requirement on voters who wish
to obtain a free state ID card for voting purposes by forcing persons who are
Wisconsin residents for voting purposes, but who possess out-of-state driver’s
licenses, to choose between paying a fee for a Wisconsin driver’s license,
Case 2:11-cv-01128-LA Filed 03/02/12 Page 55 of 79 Document 31A. 124
56
surrendering their driver’s license to obtain a free Wisconsin state ID card, or
losing their right to vote.
118. This class is sufficiently numerous such that joinder of all members is
impracticable. There are questions of law and questions of fact that are common to
the class. Class 3 Representatives Anna Shea, Matthew Dearing, Max Kligman,
Samantha Meszaros, Steve Kvasnicka, and Sarah Lahti’s claims are typical of the
claims of the class, and the representative parties will fairly and adequately protect
the interests of the class.
119. Prosecuting separate actions by individual class members would create
a risk of: (a) inconsistent or varying adjudications with respect to individual class
members that would establish incompatible standards of conduct for Defendants;
or (b) adjudications with respect to individual class members that, as a practical
matter, would be dispositive of the interests of the other members not parties to the
individual adjudications or would substantially impair or impede their ability to
protect their interests. Defendants have acted or refused to act on grounds that
apply generally to the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a whole.
Case 2:11-cv-01128-LA Filed 03/02/12 Page 56 of 79 Document 31A. 125
57
CLASS 4
120. Class 4 is defined as: all enrolled students at accredited Wisconsin
technical colleges who lack any form of accepted photo ID other than technical
college ID cards.
121. This class is sufficiently numerous such that joinder of all members is
impracticable. There are questions of law and questions of fact that are common to
the class. Class 4 Representatives Domonique Whitehurst, Edward Hogan, and
Sarah Lahti’s claims are typical of the claims of the class, and the representative
parties will fairly and adequately protect the interests of the class.
122. Prosecuting separate actions by individual class members would create
a risk of: (a) inconsistent or varying adjudications with respect to individual class
members that would establish incompatible standards of conduct for Defendants;
or (b) adjudications with respect to individual class members that, as a practical
matter, would be dispositive of the interests of the other members not parties to the
individual adjudications or would substantially impair or impede their ability to
protect their interests. Additionally, Defendants have acted or refused to act on
grounds that apply generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the class as a whole.
Case 2:11-cv-01128-LA Filed 03/02/12 Page 57 of 79 Document 31A. 126
58
CLASS 5
123. Class 5 is defined as: all eligible Wisconsin voters who lack accepted
photo ID, must obtain one or more primary documents that DMV accepts to obtain
a Wisconsin state ID card, including but not limited to certified and accurate copies
of birth, marriage, and name change certificates or records or of the non-existence
thereof, and will be required to pay one or more fees to obtain these documents.
124. This class is sufficiently numerous such that joinder of all members is
impracticable. There are questions of law and questions of fact that are common to
the class. Class 5 Representatives Ruthelle Frank, Shirley Brown, Nancy Lea
Wilde, Eddie Lee Holloway, Jr., Mariannis Ginorio, Frank Ybarra, Sam Bulmer,
Carl Ellis, Pamela Dukes, and Dartric Davis’s claims are typical of the claims of
the class, and the representative parties will fairly and adequately protect the
interests of the class.
125. Prosecuting separate actions by individual class members would create
a risk of: (a) inconsistent or varying adjudications with respect to individual class
members that would establish incompatible standards of conduct for Defendants;
or (b) adjudications with respect to individual class members that, as a practical
matter, would be dispositive of the interests of the other members not parties to the
individual adjudications or would substantially impair or impede their ability to
protect their interests. Additionally, by requiring eligible Wisconsin voters to pay
Case 2:11-cv-01128-LA Filed 03/02/12 Page 58 of 79 Document 31A. 127
59
a fee in order to obtain a document DMV insists they produce to obtain a state ID
card, Defendants have acted or refused to act on grounds that apply generally to the
class, so that final injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole.
CLASS 6
126. Class 6 includes all veterans of a uniformed service of the United
States who are eligible Wisconsin voters, lack accepted photo ID, and possess a
Veterans Identification Card (“VIC”) issued by the U.S. Department of Veterans
Affairs.
127. This class is sufficiently numerous such that joinder of all members is
impracticable. There are questions of law and questions of fact that are common to
the class. Plaintiffs and Class 6 Representatives Sam Bulmer, Carl Ellis, and
Rickie Lamont Harmon’s claims are typical of the claims of the class, and the
representative parties will fairly and adequately protect the interests of the class.
128. Prosecuting separate actions by individual class members would create
a risk of: (a) inconsistent or varying adjudications with respect to individual class
members that would establish incompatible standards of conduct for Defendants;
or (b) adjudications with respect to individual class members that, as a practical
matter, would be dispositive of the interests of the other members not parties to the
individual adjudications or would substantially impair or impede their ability to
Case 2:11-cv-01128-LA Filed 03/02/12 Page 59 of 79 Document 31A. 128
60
protect their interests. Additionally, by refusing to accept U.S. government-issued
Veterans Identification Cards, Defendants have acted or refused to act on grounds
that apply generally to the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a whole.
CLASS 7
129. Class 7 is defined as: all eligible African-American and
Hispanic/Latino voters in the State of Wisconsin who lack accepted photo ID.
130. Subclass 7.1 is defined as: all eligible African-American and
Hispanic/Latino voters in Milwaukee County, Wisconsin who lack accepted photo
ID.
131. This class is sufficiently numerous such that joinder of all members is
impracticable. There are questions of law and questions of fact that are common to
the class. Class 7 and Subclass 7.1 Representatives Shirley Brown, Eddie Lee
Holloway, Jr., Mariannis Ginorio, Frank Ybarra, Barbara Oden, Carl Ellis, Rickie
Lamont Harmon, Pamela Dukes, Dartric Davis, DeWayne Smith, and Domonique
Whitehurst’s claims are typical of the claims of the class, and the representative
parties will fairly and adequately protect the interests of the class.
132. Prosecuting separate actions by individual class members would create
a risk of: (a) inconsistent or varying adjudications with respect to individual class
members that would establish incompatible standards of conduct for Defendants;
Case 2:11-cv-01128-LA Filed 03/02/12 Page 60 of 79 Document 31A. 129
61
or (b) adjudications with respect to individual class members that, as a practical
matter, would be dispositive of the interests of the other members not parties to the
individual adjudications or would substantially impair or impede their ability to
protect their interests. Additionally, Defendants have subjected voters to a
fundamentally unfair electoral system and therefore acted or refused to act on
grounds that apply generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the class as a whole.
CLAIMS
COUNT ONE: Violation of the Fourteenth Amendment [Class 1]
133. The allegations contained in paragraphs 1 through 109 are hereby
incorporated in Count One of the complaint as if set forth herein.
134. The Fourteenth Amendment to the U.S. Constitution provides in
relevant part: “[N]or shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.” It prohibits the imposition of severe burdens on the right
to vote unless they are narrowly drawn to advance a state interest of compelling
importance. Burdick v. Takushi, 504 U.S. 428, 434 (1992).
135. Eligible Wisconsin voters in Class 1 lack one or more primary
documents required to obtain a Wisconsin state ID card and are subjected to
Case 2:11-cv-01128-LA Filed 03/02/12 Page 61 of 79 Document 31A. 130
62
multiple legal and/or systemic practical barriers to obtaining the ID card under
GAB’s implementation of the photo ID law and DMV’s restrictive regulatory
scheme.
136. Since voters in this class are unable to obtain one or more of the
necessary primary documents or are otherwise burdened by the legal and/or
systemic practical barriers encountered in this difficult process, they cannot obtain
a photo ID and therefore cannot vote in Wisconsin.
137. The burdens imposed on Class 1 members’ fundamental right to vote
are severe and not narrowly tailored to any compelling governmental interest. By
imposing a severe and undue burden on the right to vote, Defendants have violated
the Equal Protection and Due Process Clauses of the Fourteenth Amendment.
COUNT TWO: Violation of the Fourteenth Amendment [Class 2]
138. The allegations contained in paragraphs 1-105 and 110-114 are hereby
incorporated in Count Two of the complaint as if set forth herein.
139. The Fourteenth Amendment to the U.S. Constitution provides in
relevant part: “[N]or shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.” It prohibits the imposition of severe burdens on the right
Case 2:11-cv-01128-LA Filed 03/02/12 Page 62 of 79 Document 31A. 131
63
to vote unless they are narrowly drawn to advance a state interest of compelling
importance. Burdick v. Takushi, 504 U.S. 428, 434 (1992).
140. For the hundreds of thousands of eligible low-income and poor
Wisconsin voters, paying the underlying, often multiple, fees and expenses,
including transportation costs, to obtain a Wisconsin state ID card constitutes a
burden on the right to vote, which is at a minimum substantial.
141. The burden imposed on these voters is severe and not narrowly tailored
to advance any compelling governmental interest.
142. Accordingly, the photo ID law imposes an undue burden on members
of Class 2 which is at a minimum substantial and, therefore, violates the Equal
Protection and Due Process Clauses of the Fourteenth Amendment as applied to
Class 2.
COUNT THREE: Violation of the Twenty-Fourth Amendment and Equal
Protection Clause of the Fourteenth Amendment [Class 3]
143. The allegations contained in Paragraphs 1-105 and 115-119 are hereby
incorporated in Count Three of the complaint as if set forth herein.
144. The Twenty-Fourth Amendment to the United States Constitution
provides: “The right of citizens of the United States to vote in any primary or other
election for President or Vice President, for electors for President or Vice
Case 2:11-cv-01128-LA Filed 03/02/12 Page 63 of 79 Document 31A. 132
64
President, or for Senator or Representative in Congress, shall not be denied or
abridged by the United States or any state by reason of failure to pay any poll tax
or other tax.”
145. The Twenty-Fourth Amendment prohibits states from conditioning the
right to vote in federal elections on the payment of a tax or fee, or imposing on
federal voters an additional condition—or material requirement—that would not
apply if they paid such a tax or fee. Harman v. Forssenius, 380 U.S. 528, 538-42
(1965). Poll taxes on the right to vote in state elections are unconstitutional under
the Equal Protection Clause of the Fourteenth Amendment. Harper v. Virginia
State Bd. of Elections, 383 U.S. 663, 666-68 (1966).
146. Wisconsin residents who possess and wish to retain an out-of-state
driver’s license and who lack all the other accepted forms of photo ID will not be
able to obtain free Wisconsin ID cards for voting purposes without surrendering
their out-of-state driver’s licenses.
147. The compulsory surrender of an out-of-state driver’s license constitutes
a material requirement imposed on an eligible voter who refuses to forfeit his/her
right to vote without paying an unconstitutional poll tax.
148. Therefore, as applied to Class 3, the photo ID law violates the Twenty-
Fourth Amendment and the Equal Protection Clause of the Fourteenth Amendment
of the United States Constitution.
Case 2:11-cv-01128-LA Filed 03/02/12 Page 64 of 79 Document 31A. 133
65
COUNT FOUR: Violation of the Equal Protection Clause of the Fourteenth
Amendment [Class 4]
149. The allegations contained in Paragraphs 1-105 and 120-122 are hereby
incorporated in Count Four of the complaint as if set forth herein.
150. The Equal Protection Clause of the Fourteenth Amendment prohibits
the states from “deny[ing] to any person within its jurisdiction the equal protection
of the laws.” U.S. CONST. amend. XIV, § 1. It forbids the imposition of severe
burdens on the right to vote unless they are narrowly drawn to advance a state
interest of compelling importance, and requires that any state election law which
imposes reasonable, nondiscriminatory restrictions on the right to vote be justified
by the state’s important regulatory interests. Burdick v. Takushi, 504 U.S. 428, 434
(1992).
151. The GAB has construed the photo ID law to authorize the use of
accredited technical college ID cards for voting purposes. However, the ultimate
disposition of this rule has been thrown into considerable doubt for the reasons
described herein. The administrative review process still threatens to result in that
exclusion.
152. This differential treatment of student ID cards from accredited 2-year
colleges and student ID cards from accredited technical colleges is wholly
Case 2:11-cv-01128-LA Filed 03/02/12 Page 65 of 79 Document 31A. 134
66
arbitrary, not narrowly drawn to advance a compelling state interest, and not even
justified by a merely important regulatory interest.
153. Accordingly, since it lacks a rational basis, the exclusion of technical
college ID cards is unconstitutional under the Fourteenth Amendment.
COUNT FIVE: Violation of the Twenty-Fourth Amendment
and the Equal Protection Clause of the Fourteenth Amendment [Class 5]
154. The allegations contained in Paragraphs 1-105 and 123-125 are hereby
incorporated in Count Five of the complaint as if set forth herein.
155. The fee(s) required to obtain certified and accurate copies of primary
documents DMV requires before issuing a state ID card, such as birth, marriage, or
name change certificates or records or proof of the non-existence thereof,
constitute(s) an unconstitutional poll tax for eligible Wisconsin voters in this class.
156. Accordingly, the photo ID law is unconstitutional as applied to
members of Class 5.
COUNT SIX: Violation of the Equal Protection Clause of the Fourteenth
Amendment [Class 6]
157. The allegations contained in Paragraphs 1-105 and 126-128 are hereby
incorporated in Count Six of the complaint as if set forth herein.
Case 2:11-cv-01128-LA Filed 03/02/12 Page 66 of 79 Document 31A. 135
67
158. The Equal Protection Clause of the Fourteenth Amendment prohibits
the states from “deny[ing] to any person within its jurisdiction the equal protection
of the laws.” U.S. CONST. amend. XIV, § 1.
159. Veterans Identification Cards (“VICs”) contain the name and photo of
the veteran and are issued by a U.S. government agency.
160. The photo ID law does not permit the use of VICs to vote.
161. This differential treatment of VICs and other forms of accepted photo
ID under the law bearing the voter’s legal name and a photograph, including other
forms of photo ID issued by a federal agency, is wholly arbitrary and lacks a
rational basis.
162. Accordingly, the exclusion of Veterans Identification Cards from the
list of accepted photo IDs is unconstitutional under the Equal Protection Clause of
the Fourteenth Amendment.
COUNT SEVEN: Violation of Equal Protection Clause of the Fourteenth
Amendment
163. The allegations contained in Paragraphs 1-105 and 129-132 are hereby
incorporated in Count Seven of the complaint as if set forth herein.
Case 2:11-cv-01128-LA Filed 03/02/12 Page 67 of 79 Document 31A. 136
68
164. The Equal Protection Clause of the Fourteenth Amendment prohibits
the states from “deny[ing] to any person within its jurisdiction the equal protection
of the laws.” U.S. CONST. amend. XIV, § 1.
165. The Equal Protection Clause of the Fourteenth Amendment guarantees
that “[h]aving once granted the right to vote on equal terms, the State may not, by
later arbitrary and disparate treatment, value one person’s vote over that of
another.” Bush v. Gore, 531 U.S. 98, 104-05 (2000); see also Baker v. Carr, 369
U.S. 186, 208 (1962) (“A citizen’s right to a vote free of arbitrary impairment by
state action has been judicially recognized as a right secured by the Constitution . .
. .”) (citing cases). “Uniform rules” and “specific standards” are necessary to
guarantee equal treatment of voters. Bush, 531 U.S. at 106-07.
166. By vesting control over the process of obtaining Act 23’s accepted
photo ID of last resort with the DMV Defendants, Defendants have forced voters
to navigate the DMV’s complex bureaucratic rules and procedures, some of which
are written, fixed, and readily accessible to voters, and some of which are
unwritten, variable, and not readily accessible to voters.
167. The Wisconsin DMV, on the one hand, ostensibly applies a set of
documentary proof requirements with clearly enumerated items that satisfy each of
the requirements set forth in Wis. Admin. Code Trans § 102.15 and then, on the
other hand, upon information and belief, arbitrarily offers certain ID card
Case 2:11-cv-01128-LA Filed 03/02/12 Page 68 of 79 Document 31A. 137
69
applicants the option to satisfy these proof requirements with alternative
certifications and forms of documentary proof that have not been reduced to
writing and publicly listed and/or advertised. To the extent these alternative means
to satisfy the name and date of birth, citizenship, and/or other documentary proof
requirements to obtain a state ID card are in fact being implemented, the
determinations as to who may use these alternative procedures and whether to
approve the applications are characterized by standard-less discretion and not
governed by a set of definite and specific rules, standards, policies, or procedures.
168. Upon information and belief, DMV provides no meaningful notice of
any alternative procedures that may exist, and DMV does not have any uniform
standards, rules, or policies to guide the outcomes of any such procedures.
169. As a result of these statewide inconsistencies and ad hoc informal
rulings on ID card applications, eligible Wisconsin voters are subjected to arbitrary
and disparate treatment that differently values the votes of similarly situated voters
in Wisconsin.
170. These inconsistent procedures may also have a disparate negative
impact on minority voters in Milwaukee County and the State of Wisconsin.
171. By subjecting similarly situated eligible Wisconsin voters to arbitrary
and disparate treatment, failing to set forth any definite and specific rules,
standards, or procedures by which to constrain DMV employee discretion in
Case 2:11-cv-01128-LA Filed 03/02/12 Page 69 of 79 Document 31A. 138
70
determinations that directly affect the right to vote, and failing to provide adequate
and uniform notice of rules, policies, practices, and standards affecting the process
of obtaining a state ID card, Defendants have violated the Equal Protection Clause
of the Fourteenth Amendment.
COUNT EIGHT: Violation of the Due Process Clause of the Fourteenth
Amendment
172. The allegations contained in Paragraphs 1 through 105, as well as the
allegations supporting Count Seven, are hereby incorporated in Count Eight of the
complaint as if set forth herein.
173. The Due Process Clause of the Fourteenth Amendment prohibits the
states from “deprive[ing] any person of life, liberty, or property, without due
process of law.” U.S. CONST. amend. XIV, § 1.
174. The Due Process Clause of the Fourteenth Amendment is violated
where an electoral system is marked by fundamental unfairness. League of Women
Voters of Ohio v. Brunner, 548 F.3d 463 (6th Cir. 2008); Griffin v. Burns, 570 F.2d
1065, 1078-79 (1st Cir. 1978) (“[D]ue process is implicated where the entire
election process including as part thereof the state’s administrative and judicial
corrective process fails on its face to afford fundamental fairness.”); Black v.
McGuffage, 209 F. Supp. 2d 889, 899-901 (N.D. Ill. 2002).
Case 2:11-cv-01128-LA Filed 03/02/12 Page 70 of 79 Document 31A. 139
71
175. The photo ID law has forced DMV officials and employees to serve as
gatekeepers to the ballot box. DMV has no prior experience handling the votes of
eligible Wisconsin residents or even voter registration.
176. Because of the photo ID law, the Wisconsin DMV has, or should have,
rapidly implemented procedures for and retrained its employees on the photo ID
law.
177. Wisconsin DMV has failed to adequately implement a uniform,
consistently applied scheme for providing free photo ID to voters. This failure
directly affects the rights of eligible Wisconsin voters to receive the photo ID that
state law mandates they have.
178. Wisconsin DMV has treated similarly situated voters in an arbitrary
and disparate manner due to its failure to establish and implement uniform and
definite rules, standards, and procedures to process voter ID card applications.
DMV has also failed to provide meaningful and adequate notice of its
requirements, rules, standards, and policies to Wisconsin voters.
179. Additionally, the photo ID law, as implemented by Defendants,
compels eligible Wisconsin voters to interact with multiple other federal, state, and
local agencies, which have also subjected similarly situated eligible Wisconsin
voters to arbitrary and inconsistent treatment and the exercise of standard-less
discretion.
Case 2:11-cv-01128-LA Filed 03/02/12 Page 71 of 79 Document 31A. 140
72
180. The GAB and DMV’s efforts in terms of public information and
education have been insufficient to meaningfully and adequately inform Wisconsin
voters about the radical and complex legal changes wrought by Act 23 in a timely
fashion.
181. Accordingly, Defendants have created an electoral system that is
fundamentally unfair and therefore violates the Due Process Clause of the U.S.
Constitution.
COUNT NINE: Vote Denial in Violation of Section 2 of the Voting Rights Act,
42 U.S.C. § 1973 [Class 7]
182. The allegations contained in Paragraphs 1 through 105 and 129
through 132 are hereby incorporated in Count Nine of the complaint as if set forth
herein.
183. Section 2 of the Voting Rights Act provides:
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color. . . . (b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.
Case 2:11-cv-01128-LA Filed 03/02/12 Page 72 of 79 Document 31A. 141
73
42 U.S.C. § 1973. 184. African-American and Hispanic/Latino voters in Milwaukee County,
Wisconsin and, upon information and belief, in the State of Wisconsin
disproportionately lack accepted photo ID and disproportionately lack the primary
documents DMV accepts as part of the application process for a state ID card for
voting purposes, when compared to their white counterparts. Numerous minority
voters are unable to obtain accepted photo ID and will be barred from voting.
185. Since minority voters will be disproportionately barred from voting
under this strict photo ID requirement, the political processes in Milwaukee
County, Wisconsin and, upon information and belief, the State of Wisconsin are
not equally open to participation by African-American and Hispanic/Latino voters,
and they will therefore have less opportunity than other members of the electorate
to participate in the political process and to elect representatives of their choice.
186. Minority residents of Milwaukee County, Wisconsin and in the State
of Wisconsin have suffered the effects of discrimination in the areas of education,
employment, housing, and health, which have hindered their ability to participate
effectively in the political process. S. Rep. No. 97-417, 97th Cong., 2d Sess.
(1982), at 28-29.
187. The photo ID law is a qualification to voting or a standard, practice, or
procedure with respect to voting which is denying the right to vote to individual
Case 2:11-cv-01128-LA Filed 03/02/12 Page 73 of 79 Document 31A. 142
74
plaintiffs on account of race or color in violation of Section 2 of the Voting Rights
Act, 42 U.S.C. § 1973.
COUNT TEN: Vote Dilution in Violation of Section 2 of the Voting
Rights Act, 42 U.S.C. § 1973 [Class 7]
188. The allegations contained in Paragraphs 1 through 105 and 129
through 132, as well as the allegations supporting Count Nine, are hereby
incorporated in Count Ten of the complaint as if set forth herein.
189. Section 2 of the Voting Rights Act provides:
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color. . . . (b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.
42 U.S.C. § 1973. 190. African-American and Hispanic/Latino voters in Milwaukee County,
Wisconsin and, upon information and belief, in the State of Wisconsin,
disproportionately lack accepted photo ID and disproportionately lack the primary
documents DMV accepts as part of the application process for a state ID card for
Case 2:11-cv-01128-LA Filed 03/02/12 Page 74 of 79 Document 31A. 143
75
voting purposes, when compared to their white counterparts. As a result, these
minority voters are less likely to be able to obtain accepted photo ID than their
white counterparts and thus less likely to see their ballots counted.
191. The photo ID law is a qualification to voting or a standard, practice, or
procedure with respect to voting which, based on the totality of the circumstances,
will render elections in Milwaukee County, Wisconsin and in the State of
Wisconsin not equally open to participation by African-American and
Hispanic/Latino voters, in that they will have less opportunity than other members
of the electorate to participate in the political process and to elect representatives of
their choice.
192. These disparities dilute the voting strength of African-American and
Hispanic/Latino voters in Milwaukee County, Wisconsin and the State of
Wisconsin and thus impair their ability to elect representatives of their choice.
193. There is available an alternative election scheme that does not have a
disproportionate negative impact on the opportunity of African-American and
Hispanic/Latino voters in Milwaukee County, Wisconsin and, upon information
and belief, the State of Wisconsin to participate in the political process and elect
representatives of their choice, when compared to other members of the electorate.
194. The photo ID law increases the probability that minority voters’ ballots
will not be counted and thus dilutes African Americans’ and Latinos’ votes in
Case 2:11-cv-01128-LA Filed 03/02/12 Page 75 of 79 Document 31A. 144
76
Milwaukee County, Wisconsin and, upon information and belief, in the State of
Wisconsin on account of race or color in violation of Section 2 of the Voting
Rights Act, 42 U.S.C. § 1973.
195. Minority residents of Milwaukee County, Wisconsin and in the State
of Wisconsin have suffered the effects of discrimination in the areas of education,
employment, housing, and health, which have hindered their ability to participate
effectively in the political process. S. Rep. No. 97-417, 97th Cong., 2d Sess.
(1982), at 28-29; Thornburg v. Gingles, 478 U.S. 30, 47 (1986) (“The essence of a
[Section] 2 claim is that a certain electoral law, practice, or structure interacts with
social and historical conditions to cause an inequality in the opportunities enjoyed
by [minority] and white voters to elect their preferred representatives.”).
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully pray that:
(i) The Court declare the photo ID law unconstitutional as applied to Class 1
under the Equal Protection and Due Process Clauses of the Fourteenth
Amendment and enjoin the photo ID law as applied to members of Class
1;
(ii) The Court declare the photo ID law unconstitutional as applied to Class 2
under the Equal Protection and Due Process Clauses of the Fourteenth
Case 2:11-cv-01128-LA Filed 03/02/12 Page 76 of 79 Document 31A. 145
77
Amendment and enjoin the photo ID law as applied to members of Class
2;
(iii) The Court declare the photo ID law unconstitutional as applied to Class 3
under the Twenty-Fourth Amendment and the Equal Protection Clause of
the Fourteenth Amendment and enjoin the photo ID law as applied to
members of Class 3;
(iv) The Court declare the photo ID law unconstitutional as applied to Class 4
under the Equal Protection Clause of the Fourteenth Amendment and
enjoin the photo ID law as applied to members of Class 4;
(v) The Court declare the photo ID law unconstitutional as applied to Class 5
under the Twenty-Fourth Amendment and the Equal Protection Clause of
the Fourteenth Amendment and enjoin the photo ID law as applied to
members of Class 5;
(vi) The Court declare the photo ID law unconstitutional as applied to Class 6
under the Equal Protection Clause of the Fourteenth Amendment and
enjoin the photo ID law as applied to members of Class 6;
(vii) The Court declare the photo ID law violates the Equal Protection Clause
of the Fourteenth and enjoin the photo ID law;
(viii) The Court declare the photo ID law violates the Due Process Clause of
the Fourteenth Amendment and enjoin the photo ID law;
Case 2:11-cv-01128-LA Filed 03/02/12 Page 77 of 79 Document 31A. 146
78
(ix) The Court declare the photo ID law violates Section 2 of the Voting
Rights Act (42 U.S.C. § 1973) as applied to Milwaukee County,
Wisconsin and the State of Wisconsin, and enjoin the enforcement of the
photo ID law in Milwaukee County, Wisconsin and the State of
Wisconsin;
(x) Award Plaintiffs their reasonable attorneys’ fees, reasonable expert fees,
and costs pursuant to 42 U.S.C. §§ 1988, 1973l(e) and Fed. R. Civ. P.
54(d); and
(xi) Grant such other and further relief as this Court deems just.
Respectfully submitted this 2nd day of March, 2012,
/s Laurence J. Dupuis Laurence J. Dupuis Bar No.: 1029261 Karyn Rotker Bar No.: 1007719 American Civil Liberties Union of Wisconsin
207 E. Buffalo Street, Suite 325 Milwaukee, WI 53202-5774
Phone: (414) 272-4032 Fax: (414) 272-0182 [email protected]
M. Laughlin McDonald Jon Sherman Nancy Abudu American Civil Liberties Union Foundation, Inc.
230 Peachtree Street, Suite 1440
Case 2:11-cv-01128-LA Filed 03/02/12 Page 78 of 79 Document 31A. 147
79
Atlanta, GA 30303 Phone: (404) 523-2721 Fax: (404) 653-0331 [email protected]
[email protected] [email protected] Karen E. Cunningham
Heather Maria Johnson National Law Center on Homelessness & Poverty 1411 K Street NW, Suite 1400
Washington, DC 20005 Phone: (202) 638-2535
Fax: (202) 628-2737 [email protected]
Neil Steiner Diane Princ Dechert LLP 1095 Avenue of the Americas
New York, NY 10036-6797 Phone: (212) 698-3822 Fax: (212) 698-3599 [email protected] [email protected]
Craig Falls Dechert LLP 1775 I Street, NW
Washington, DC 20006-2401 Phone: (202) 261-3373 Fax: (202) 261-3333 [email protected]
Case 2:11-cv-01128-LA Filed 03/02/12 Page 79 of 79 Document 31A. 148
IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF WISCONSIN
____________________________________________
BETTYE JONES; LEAGUE OF UNITED LATIN AMERICANCITIZENS (LULAC) OF WISCONSIN; CROSS LUTHERANCHURCH; MILWAUKEE AREA LABOR COUNCIL,AFL-CIO; and WISCONSIN LEAGUE OF YOUNG VOTERSEDUCATION FUND,
Plaintiffs,
v. Case No. 2:12-cv-00185-LA
JUDGE DAVID G. DEININGER, JUDGE MICHAEL BRENNAN,JUDGE GERALD C. NICHOL, JUDGE THOMAS BARLAND,JUDGE THOMAS CANE, KEVIN J. KENNEDY, andNATHANIEL E. ROBINSON, all in their official capacities,
Defendants.
Fed. R. Civ. P. 25(a) Notice Regarding Death of One of the Plaintiffs
Plaintiffs hereby notify the Court that one of the five original plaintiffs in this action,
Bettye Jones, passed away on October 31, 2012, while the case was being held in abeyance
pending the outcome of the two state court voter ID challenges.
The four remaining plaintiffs — the League of United Latin American Citizens
(LULAC) of Wisconsin; Cross Lutheran Church; the Milwaukee Area Labor Council, AFL-
CIO; and the Wisconsin League of Young Voters Education Fund — intend to proceed with
their Section 2 claim, including at trial in this action. These four plaintiffs previously have
demonstrated — in response to defendants’ objections to the Article III standing of all plaintiffs
(including Mrs. Jones) — that they have organizational and associational standing to raise their
claim under Section 2 of the Voting Rights Act, 42 U.S.C. § 1973. See, e.g., Corrected Reply
Case 2:12-cv-00185-LA Filed 08/14/13 Page 1 of 2 Document 75A. 149
2
Memorandum in Support of Plaintiffs’ Motion for Preliminary Injunction, Dkt. 62, pp. 5-13
(July 9, 2012) (citing affidavit testimony and other evidence). This Court has not yet ruled on
defendants’ standing objections.
Plaintiffs respectfully request, pursuant to Fed. R. Civ. P. 25(a)(2), that Mrs. Jones’s
death be noted on the record.
Dated: August 14, 2013
Penda D. HairJames EichnerDenise D. LiebermanAdvancement ProjectSuite 8501220 L Street, N.W.Washington, D.C. 20005Phone: (202) 728-9557Email: [email protected]@[email protected]
Respectfully submitted,
/s Charles G. Curtis, Jr. ___Arnold & Porter LLPSuite 62016 North Carroll StreetMadison, Wisconsin 53703Phone: (608) 257-1922Email: [email protected]
John C. UlinArnold & Porter LLP44th Floor777 South Figuero StreetLos Angeles, California 90017Phone: (213) 243-4000Email: [email protected]
Carl S. NadlerArnold & Porter LLP555 Twelfth Street, N.W.Washington, D.C. 20004Phone: (202) 942-6130Email: [email protected]
Case 2:12-cv-00185-LA Filed 08/14/13 Page 2 of 2 Document 75A. 150
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WISCONSIN
BETTYE JONES, et al.,
Plaintiffs,
v. Case No. 12-CV-185
DAVID G. DEININGER, et al.,
Defendants.
CIVIL L.R. 7(h) EXPEDITED NONDISPOSITIVE MOTION
FOR THE COURT TO ADVANCE CONSIDERATION OF ITS JURISDICTION
Defendants, by their undersigned counsel, hereby respectfully move the Court to advance
consideration of its jurisdiction pursuant to Civil Local Rule 7(h).
Plaintiffs recently made the astonishing admission to this Court and to Defendants that
Bettye Jones, the lead and only individual voter plaintiff in this case, is dead. (Dkt. #75.) Not
only that, but she died nearly ten months ago. (Id. at 1.) Plaintiffs did not bother to tell the
Court or Defendants about this fact during status conferences on December 18, 2012,
January 30, 2013, or July 29, 2013. Plaintiffs did not even disclose that Ms. Jones had taken up
residence in Cleveland, Ohio (according to her obituary, again not disclosed by Plaintiffs),
sometime prior to her death. See Second Declaration of Clayton P. Kawski, Ex. A, filed
herewith.
Why this matters is not necessarily Plaintiffs’ counsel’s failure to fulfill their duty of
candor to this Court, or to fulfill their obligations under Federal Rule of Civil Procedure 11, or to
timely supplement discovery responses and disclosures under Federal Rule of
Case 2:12-cv-00185-LA Filed 08/30/13 Page 1 of 4 Document 77A. 151
- 2 -
Civil Procedure 26. What matters is that this Court’s jurisdiction rests upon the fiction that this
case is brought by a real (i.e., alive) plaintiff who is threatened with a real injury that can be
redressed by an order of this Court. The remaining Plaintiffs—four organizations that are not
threatened with any injury by Defendants’ enforcement of 2011 Wisconsin Act 23 (“Act 23”)
because they have no right to vote—hid behind the apparent threatened injury to Ms. Jones. But,
she had qualifying ID all along,1 is not alive, and did not even live in Wisconsin at the time of her
death and was, thus, not qualified to vote in Wisconsin. Plaintiffs’ admission should be
addressed swiftly by this Court, which is a Court of limited jurisdiction and has a duty to consider
its subject matter jurisdiction at every stage in the litigation. United Phosphorus, Ltd. v.
Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003).
Defendants have asserted that no plaintiff in this case has standing to assert claims under
Section 2 of the Voting Rights Act of 1965 (“Voting Rights Act”). Defendants make essentially
the same arguments now; those arguments need not be repeated at length and are contained in
Defendants’ Brief in Opposition to Plaintiffs’ Motion for Preliminary Injunction, Dkt. #43.
Absent Plaintiffs filing a motion to amend their complaint to add a new individual voter plaintiff
that has standing, this Court lacks jurisdiction to proceed. If Plaintiffs lack standing, the Court
lacks jurisdiction, and the case must be dismissed. See Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992).
Analysis of a party’s standing is “gauged by the specific common-law, statutory or
constitutional claims that a party presents[] . . . [with] ‘careful judicial examination . . . to
ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims
1Declaration of Bettye Jones, Dkt. #31 at 5.
Case 2:12-cv-00185-LA Filed 08/30/13 Page 2 of 4 Document 77A. 152
- 3 -
asserted.’” Int’l Primate Prot. League v. Adm’rs of Tulane Educ. Fund, 500 U.S. 72, 77 (1991)
(quoting Allen v. Wright, 468 U.S. 737, 752 (1984)) (emphasis in original). Standing under the
Voting Rights Act for private litigants—those other than the United States Attorney General—is
limited to “aggrieved persons” seeking to enforce their right to vote. 42 U.S.C. § 1973a;
Roberts v. Wamser, 883 F.2d 617, 621 (8th Cir. 1989); Assa’ad-Faltas v. S. Carolina,
2012 WL 6103204, *4 (D. S.C. Nov. 14, 2012); Clay v. Garth, 2012 WL 4470289, *2
(N.D. Miss. Sept. 27, 2012) (“The Voting Rights Act authorizes a private cause of action for
individuals who are ‘aggrieved persons.’ 42 U.S.C. § 1973a.”); McGee v. City of
Warrenville Heights, 16 F. Supp. 2d 837, 845 (N.D. Ohio 1998) (“Standing under the Act is
limited to ‘aggrieved persons,’ and that category is confined to persons whose voting rights have
been denied or impaired.”); Ill. Legislative Redistricting Comm’n v. LaPaille, 782 F. Supp. 1267,
1270 (N.D. Ill. 1991). “Aggrieved persons” under the Voting Rights Act are those persons who
claim that their right to vote has been infringed because of their race. Roberts, 883 F.2d at 621.
Standing under the Voting Rights Act does not extend to non-persons like the
four organization Plaintiffs that have no race and, most importantly, have no right to vote. They
cannot be “aggrieved persons” under the plain language of the Voting Rights Act.2 The
four organization Plaintiffs lack standing to assert a claim under the Voting Rights Act because
they are not voters; Act 23 creates no consequences for them. See Freedom from
Religion Found., Inc. v. Obama, 641 F.3d 803, 805 (7th Cir. 2011) (“No one has standing to
object to a statute that imposes duties on strangers.”) Any action these Plaintiffs took in response
to Act 23 was entirely voluntary and not compelled by Act 23. The four organization Plaintiffs
242 U.S.C. § 1983 cannot save the four organization Plaintiffs’ Voting Rights Act claim because
§ 1983 does not create a cause of action to assert the rights of third parties. Ray v. Maher, 662 F.3d 770,
773 (7th Cir. 2011) (“§ 1983 claims are personal to the injured party.”).
Case 2:12-cv-00185-LA Filed 08/30/13 Page 3 of 4 Document 77A. 153
- 4 -
lack standing and, with no living Plaintiff in the case that has standing, this Court lacks
jurisdiction to proceed.
There is no time like the present to determine whether the Court has jurisdiction before
the parties are deep into trial preparation. If the Court does not have jurisdiction, there is no need
for a trial in this case. If the Court has jurisdiction, the parties will continue to proceed to trial.
With all respect due to the Court, Defendants request that this Court grant this motion and
expeditiously advance consideration of its jurisdiction over this case.
Dated this 30th day of August, 2013.
Respectfully submitted,
J.B. VAN HOLLEN
Attorney General
s/Clayton P. Kawski
CLAYTON P. KAWSKI
Assistant Attorney General
State Bar #1066228
MARIA S. LAZAR
Assistant Attorney General
State Bar #1017150
DANIEL P. LENNINGTON
Assistant Attorney General
State Bar #1088694
Attorneys for Defendants
Wisconsin Department of Justice
Post Office Box 7857
Madison, Wisconsin 53707-7857
(608) 266-7477 (Kawski)
(608) 267-3519 (Lazar)
(608) 267-8901 (Lennington)
(608) 267-2223 (fax)
Case 2:12-cv-00185-LA Filed 08/30/13 Page 4 of 4 Document 77A. 154
UNITED STATES DISTRICT COURTEASTERN DISTRICT OF WISCONSIN
LEAGUE OF UNITED LATIN AMERICANCITIZENS (LULAC) OF WISCONSIN, et al.,
Plaintiffs,
v. Case No. 12-C-0185
DAVID G. DEININGER, et al.,Defendants.
DECISION AND ORDER
The defendants have filed a motion “for the court to advance consideration of its
jurisdiction.” ECF No. 77. The defendants argue that because one of the named plaintiffs,
Bettye Jones, has died, no plaintiff has “standing” to challenge Wisconsin’s Voter ID law,
2011 Wisconsin Act 23 (“Act 23"), under section 2 of the Voting Rights Act. There are four
remaining plaintiffs. They are organizations rather than natural persons. The defendants
contend that these four defendants do not have “standing” to pursue a claim under
section 2 because “[s]tanding under the Voting Rights Act does not extend to non-
persons.” Mot. at 3, ECF No. 77.
I put scare quotes around the word “standing” in the previous paragraph because
I think that that is not the best way to describe the argument that defendants make in their
motion. The defendants do not argue that the four organizations lack standing in the
Article III sense. That is, they do not argue that the organizations have not suffered an
injury in fact that is fairly traceable to the actions of the defendants and that is likely to be
redressed by a favorable judicial decision. See, e.g., Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992). Rather, what the defendants argue is that the Voting Rights Act does
Case 2:12-cv-00185-LA Filed 09/17/13 Page 1 of 5 Document 84A. 155
Because the plaintiffs seek only injunctive relief, only one of them must have1
standing. See Crawford v. Marion County Election Bd., 472 F.3d 949, 951 (2007).
2
not grant the organizations a cause of action. It seems to me that whether this is correct
is a matter of substantive law rather than a matter of standing.
In any event, out of an abundance of caution, I will, before turning to defendants’
argument concerning the scope of a cause of action under the Voting Rights Act, discuss
whether any of the remaining four plaintiffs has standing in the Article III sense. The1
plaintiffs contend that they have Article III standing for two different reasons. First, they
argue that they are being injured by Act 23 because the Act is causing them to divert their
resources away from their usual voter-registration and “get-out-the-vote” activities to deal
with the effects of the Act. The League of Young Voters, for example, is an “organization
committed to mobilizing young people of color, non-college youth, and low-income youth
to vote in elections and to become civically engaged around issues that matter to young
people.” Decl. of Jayme Montgomery Baker ¶ 2, ECF No. 23. According to the League’s
director of its Wisconsin operations, Act 23 has caused the League to divert resources
away from its usual programs to identify and help young people who lack the kinds of
identification required by the law. According to the director, the League has “spent at least
an additional $80,000 on voter ID related activities, ranging from staff time to printing flyers
to renting vans to traveling across the county and state to educate people about ID
requirements and help them obtain IDs.” Id. ¶ 15. The case law recognizes that this kind
of injury satisfies the constitutional minimum of standing, see Havens Realty Corp. v.
Coleman, 455 U.S. 363, 378–79 (1982); Crawford v. Marion County Election Bd., 472 F.3d
949, 951 (2007), and therefore, assuming that the organizations prove at trial that they are
Case 2:12-cv-00185-LA Filed 09/17/13 Page 2 of 5 Document 84A. 156
The standing analysis changes at each stage of the litigation. At the pleading2
stage, whether a plaintiff has standing depends on the factual allegations in the pleadings.At the summary-judgment stage, the standing analysis depends on the facts presented inthe plaintiff’s affidavits. At the final stage, the facts necessary to prove standing, ifcontroverted, must be supported by the evidence adduced at trial. See Lujan, 504 U.S.at 561; see also Havens Realty, 455 U.S. at 379 n.21.
3
continuing to suffer this form of injury, they will have satisfied their burden to prove that2
they have standing to obtain injunctive relief against Act 23.
The organizations also argue that they have “associational standing”—that is,
standing that is derivative of their members’ standing. See MainStreet Org. of Realtors v.
Calumet City, 505 F.3d 742, 744 (7th Cir. 2007). Here, the organizations contend that
many of their members lack qualifying forms of ID and therefore are being injured by
Act 23. The evidence they have submitted supports this contention. For example, several
members of the Cross Lutheran Church have submitted declarations in which they state
that they do not have qualifying forms of ID and that they fear that the lack of such ID will
prevent them from voting if Act 23 is not enjoined. See Decl. of Billy McKinney ¶¶ 6–9,
ECF No. 56; Decl. of Jacqueline Johnson ¶¶ 6–7, ECF No. 57; Decl. of Jemmie Lee
Randale ¶ 6, ECF No. 58. If the evidence adduced at trial shows that the organizations
continue to have members who are being injured by Act 23, then the organizations will
have standing to obtain injunctive relief for that reason in addition to standing based on
their own injuries.
Having discussed the organizations’ Article III standing, I turn to the argument that
defendants make in the present motion—that the Voting Rights Act does not grant non-
natural persons a cause of action. This is a question of statutory interpretation. The text
of the statute provides that either the Attorney General or “an aggrieved person” may
Case 2:12-cv-00185-LA Filed 09/17/13 Page 3 of 5 Document 84A. 157
4
institute a proceeding under the Voting Rights Act. See 42 U.S.C. § 1973a. By statute,
the word “person” in an Act of Congress must be interpreted to include corporations,
companies, associations, firms, partnerships, societies, and joint stock companies, as well
as individuals, unless the context indicates otherwise. 1 U.S.C. § 1. Here, the context
does not indicate otherwise. Moreover, the Senate Report on the bill that added the
“aggrieved person” language to the Voting Rights Act states that such a person may be
either an individual or an organization. See S. Rep. No. 94-295, at 40 (1975), reprinted in
1975 U.S.C.C.A.N. 774, 806–07 (“An ‘aggrieved person’ is any person injured by an act
of discrimination. It may be an individual or an organization representing the interests of
injured persons.”). Thus, based on the plain text of the statute and its legislative history,
I conclude that the Voting Rights Act grants a cause of action to organizations like the four
plaintiffs in this case.
Before leaving this matter, I note that in Thompson v. North American Stainless, LP,
__ U.S. __, 131 S. Ct. 863, 869–70 (2011), the Supreme Court held that the term “person
aggrieved,” as used in the context of Title VII of the Civil Rights Act of 1964, incorporates
the “zone of interests” test. Under this test, a plaintiff may not sue unless he falls within
the zone of interests sought to be protected by the statutory provision whose violation
forms the legal basis for his complaint. Id. at 870. The test denies a right to sue where
“the plaintiff's interests are so marginally related to or inconsistent with the purposes
implicit in the statute that it cannot reasonably be assumed that Congress intended to
permit the suit.” Id. (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399–400 (1987)).
In the present case, the defendants do not argue that any of the four organizations falls
outside the zone of interests sought to be protected by the Voting Rights Act. Moreover,
Case 2:12-cv-00185-LA Filed 09/17/13 Page 4 of 5 Document 84A. 158
5
it strikes me as obvious that at least some of the organizations, such as the League of
Young Voters and Cross Lutheran Church, fall within that zone: they are organizations
concerned with advancing voting rights, their members are individuals that the Voting
Rights Act was designed to protect, and the legislative history of the Act explicitly states
that organizations representing the interests of injured voters were intended to be granted
rights to sue. Accordingly, to the extent that the Voting Rights Act incorporates the zone-
of-interests test, it is clear that at least some of the remaining plaintiffs have satisfied that
test.
For the reasons stated, IT IS ORDERED that defendants’ motion for the court to
advance consideration of its jurisdiction is DENIED.
IT IS FURTHER ORDERED that the caption is amended to reflect that Bettye Jones
is no longer a party to this case.
Dated at Milwaukee, Wisconsin, this 17th day of September 2013.
s/ Lynn Adelman_______________________LYNN ADELMANDistrict Judge
Case 2:12-cv-00185-LA Filed 09/17/13 Page 5 of 5 Document 84A. 159
UNITED STATES DISTRICT COURTEASTERN DISTRICT OF WISCONSIN
RUTHELLE FRANK, et al., on behalf ofthemselves and all others similarly situated,
Plaintiffs,
v. Case No. 11-CV-01128
SCOTT WALKER, in his official capacity asGovernor of the State of Wisconsin, et al.,
Defendants.
LEAGUE OF UNITED LATIN AMERICANCITIZENS (LULAC) OF WISCONSIN, et al.,
Plaintiffs,
v. Case No. 12-CV-00185
JUDGE DAVID G. DEININGER, et al.,Defendants.
DECISION AND ORDER
In May 2011, the Wisconsin Legislature passed 2011 Wisconsin Act 23 (“Act 23”),
which requires Wisconsin residents to present a document including photo identification
(“photo ID”) in order to vote. 2011 Wis. Sess. Laws 104 (codified as amended in scattered
sections of Wis. Stat. Ch. 5 and 6). The plaintiffs in the two cases captioned above claim1
the law violates the Fourteenth Amendment and/or Section 2 of the Voting Rights Act, 42
U.S.C. § 1973.
Act 23's photo ID requirement was in effect only in the February 2012 election. In1
March 2012, two separate Wisconsin circuit courts enjoined the statute on stateconstitutional grounds. As of the date of this decision, one of the injunctions remains ineffect and both cases are pending in the Wisconsin Supreme Court.
Case 2:12-cv-00185-LA Filed 04/29/14 Page 1 of 90 Document 127A. 160
In the Frank case, individuals who are eligible to vote in Wisconsin contend that Act
23 violates both the Fourteenth Amendment and Section 2 of the Voting Rights Act. In the
LULAC case, four organizations argue that Act 23 violates Section 2 of the Voting Rights
Act. With the agreement of the parties, I handled the cases together without formally
consolidating them and, in November 2013, conducted a two week trial to the court. In this
decision, which constitutes my findings and conclusions under Federal Rule of Civil
Procedure 52, I address the major issues presented. In an effort to make the opinion as
readable as possible, I have placed several relatively technical discussions of expert
testimony in appendices rather than in the text.
Before proceeding, I note that I am only addressing two of the plaintiffs’ claims—the
Frank plaintiffs’ claim that Act 23 places an unjustified burden on the right to vote and the
claim of both the Frank and LULAC plaintiffs that Act 23 violates Section 2 of the Voting
Rights Act. I do not address the Frank plaintiffs’ remaining claims, which are all
constitutional claims. My reason for not addressing the remaining claims is based on the
“longstanding principle of judicial restraint” under which courts are to “avoid reaching
constitutional questions in advance of the necessity of deciding them.” Camreta v. Greene,
__ U.S. __, 131 S.Ct. 2020, 2031 (2011) (internal quotation marks omitted). As explained
below, all of the plaintiffs are entitled to permanent injunctive relief against enforcement of
the photo ID requirement on the ground that the requirement violates Section 2 of the
Voting Rights Act. This makes consideration of any of the Frank plaintiffs’ constitutional
claims unnecessary. Still, I believe it is wise to consider the constitutional claim of whether
Act 23 places an unjustified burden on the right to vote. As my analysis below will
demonstrate, the Section 2 statutory claim and the unjustified-burden constitutional claim
2
Case 2:12-cv-00185-LA Filed 04/29/14 Page 2 of 90 Document 127A. 161
overlap substantially, in that many factual findings are relevant to both claims. Indeed, the
Section 2 analysis is largely identical to the unjustified-burden analysis, except that the
Section 2 analysis involves the additional question of whether Act 23 has a disproportionate
impact on Blacks and Latinos and produces a “discriminatory result.” Thus, it would likely2
not be a wise use of judicial resources to address the Section 2 claim but leave the
unjustified-burden claim unresolved. Addressing only the former claim could result in an
appeal and then a remand to this court for consideration of the constitutional claim, and
then a second appeal involving only the constitutional claim. Of course, by not addressing
all constitutional claims, I am leaving the door open to successive appeals. But unlike the
unjustified-burden constitutional claim, the remaining constitutional claims do not overlap
substantially with the Section 2 claim and could more easily be addressed in separate
proceedings.
My analysis proceeds as follows. First, I give an overview of the relevant provisions
of Act 23. Second, I address the Frank plaintiffs’ claim that Act 23 violates the Fourteenth
Amendment because it imposes substantial burdens on the many eligible voters who do not
currently possess photo IDs, and because such burdens are not justified by the state
interests that Act 23 purports to serve. Third, I address the plaintiffs’ claim that Act 23
violates Section 2 of the Voting Rights Act because it has a disproportionate impact on the
voting rights of Blacks and Latinos. Finally, I briefly address some remaining procedural
Because the Section 2 and unjustified-burden analyses are highly similar, with the2
Section 2 analysis presenting additional questions that the unjustified-burden analysis doesnot, I discuss the unjustified-burden claim first.
3
Case 2:12-cv-00185-LA Filed 04/29/14 Page 3 of 90 Document 127A. 162
matters, namely, the Frank plaintiffs’ motion for class certification and the defendants’
motion to dismiss the claims of certain Frank plaintiffs.
I. Overview of Act 23
Under Act 23, in order to vote, a person must present one of nine forms of photo ID
to prove his or her identity. An acceptable photo ID includes one of the following that is3
unexpired or that expired after the most recent general election: (1) a Wisconsin driver’s4
license, (2) a Wisconsin state ID card, (3) an ID card issued by a United States uniformed
service, or (4) a United States passport. Wis. Stat. § 5.02(6m)(a). A person may also
present: (5) a naturalization certificate issued within the last two years, (6) an unexpired
receipt issued when a person applies for a Wisconsin driver’s license, which is valid for 60
days as a temporary license, (7) an unexpired receipt issued when a person applies for a
state ID card, which is valid for 60 days as a temporary ID card, (8) an unexpired ID card
issued by a federally recognized Indian tribe in Wisconsin or (9) an unexpired ID card
issued by an accredited Wisconsin university or college that contains the date of issuance,
the person’s signature and an expiration date no later than two years from the date of
issuance. Wis. Stat. § 5.02(6m)(b)–(f). If a person presents a student ID, the person must
also produce a document showing that he or she is currently enrolled. Wis. Stat.
§ 5.02(6m)(f).
To qualify to vote in Wisconsin, a person must be a citizen of the United States,3
18 or older and a resident of the state for 28 consecutive days prior to the election. Wis.Stat. § 6.02(1).
A general election is one held “in even-numbered years . . . in November . . . .”4
Wis. Stat. § 5.02(5).
4
Case 2:12-cv-00185-LA Filed 04/29/14 Page 4 of 90 Document 127A. 163
Act 23 does not allow an individual to use a Veteran’s ID Card, the photo ID that the
United States Department of Veterans’ Affairs issues when veterans leave the military. Trial
Transcript (“Tr.”) 871. An individual also cannot use an ID from one of Wisconsin’s 16 two-
year technical colleges. The Wisconsin Government Accountability Board (“GAB”), a non-
partisan board consisting of six retired judges which administers Wisconsin elections, found
that technical college IDs which met the requirements set out for student IDs were
acceptable, but a legislative committee required the GAB to promulgate an administrative
rule on the matter. The GAB did so, but both the legislative committee and the Governor
must approve the rule and neither has done so. Tr. 879–80, 883.
When voting in-person, an individual must state his or her name and address and
produce one of the accepted forms of photo ID. The clerk or poll worker will then check the
poll list to determine if there is a registered voter with matching information and inspect the
ID to see if the name on it conforms to the name on the poll list and the photograph
reasonably resembles the individual. Wis. Stat. § 6.79(2)(a). If these requirements are met,
the individual will be allowed to sign the poll book and receive a ballot. If an individual does
not have a qualifying ID, he or she may cast a provisional ballot. However, such ballot will
be counted only if the individual appears at the municipal clerk’s office with an acceptable
ID by 4:00 p.m. on the Friday after the election. Wis. Stat. §§ 6.79(3)(b), 6.97(3)(b).
Individuals requesting absentee ballots must also present photo IDs. Wis. Stat.
§§ 6.86(1)(ar), 6.87(1). A requester must mail in a photocopy of an acceptable photo ID with
his or her request. Wis. Stat. § 6.87(1).
The statute provides limited exceptions. The photo ID requirement does not apply
to: (1) absentee voters who have previously supplied acceptable photo IDs and whose
5
Case 2:12-cv-00185-LA Filed 04/29/14 Page 5 of 90 Document 127A. 164
names and addresses have not changed, Wis. Stat. § 6.87(4)(b)3, (2) absentee voters who
are in the military or overseas, Wis. Stat. § 6.87(1), (3) voters who have confidential listings
as a result of domestic abuse, sexual assault or stalking, Wis. Stat. § 6.79(6), (4) voters
who have surrendered their driver’s licenses due to a citation or notice of intent to revoke
or suspend the license who present a copy of the citation or notice, Wis. Stat. § 6.79(7), and
(5) absentee voters who are elderly, infirm or disabled and indefinitely confined to their
homes or certain care facilities, Wis. Stat. §§ 6.86(2), 6.875. Additionally, an individual with
a religious objection to being photographed can apply for a Wisconsin state ID card that
does not include a photo. Wis. Stat. § 343.50(4g).
Individuals who lack a qualifying photo ID can apply for a Wisconsin state ID card at
the Wisconsin Department of Motor Vehicles (“DMV”). The cost for such a card is normally
$18.00, but Act 23 requires the DMV to waive the fee if the applicant is a citizen who will be
at least 18 on the date of the next election, and the applicant asks that the card be issued
without charge for voting purposes. Wis. Stat. § 343.50(5)(a)3. To obtain a state ID card,
a person must obtain certain primary identification documents and appear at a DMV service
center to submit an application and be photographed.
II. Fourteenth Amendment Claim: Unjustified Burden on the Right to Vote
The Frank plaintiffs are eligible Wisconsin voters who claim that Act 23's photo ID
requirement violates the Fourteenth Amendment because it imposes an unjustified burden
on their right to vote. The Constitution does not expressly provide a right to vote, but it does
so implicitly. Harper v. Va. State Bd. Of Elections, 383 U.S. 663, 665–66 (1966); Reynolds
v. Sims, 377 U.S. 533, 554–55 (1964); Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)
(noting that the right to vote is “a fundamental political right, because preservative of all
6
Case 2:12-cv-00185-LA Filed 04/29/14 Page 6 of 90 Document 127A. 165
rights”). Further, the right to vote is a fundamental right protected by both the due process
and equal protection clauses of the Fourteenth Amendment. Burdick v. Takushi, 504 U.S.
428, 433 (1992) (“It is beyond cavil that ‘voting is of the most fundamental significance
under our constitutional structure.’” (quoting Ill. Bd. of Elections v. Socialist Workers Party,
440 U.S. 173, 184 (1979)); Anderson v. Celebrezze, 460 U.S. 780, 787 (1983) (the right to
vote is one of the liberty interests protected by the due process clause); Harper, 383 U.S.
at 665 (“[O]nce the franchise is granted to the electorate, lines may not be drawn which are
inconsistent with the Equal Protection Clause of the Fourteenth Amendment.”). Thus, states
may not enact laws that unduly burden the right to vote. No litmus test, however, neatly
separates valid and invalid election laws. Crawford v. Marion Cnty. Election Bd., 553 U.S.
181, 189–90 (2008). Rather, the Supreme Court has adopted a balancing test that courts
must apply on a case-by-case basis. Id.
The test adopted by the Court recognizes that, “as a practical matter, there must be
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 process.” Storer v. Brown, 415 U.S. 724,
730 (1974). It further recognizes that an election regulation, “whether it governs the
registration and qualification of voters . . . or the voting process itself, inevitably affects—at
least to some degree—the individual’s right to vote and his right to associate with others for
political ends.” Anderson, 460 U.S. at 788. Thus, courts applying the balancing test must
weigh “‘the character and magnitude of the asserted injury’” to the right to vote against “‘the
precise interests put forward by the State as justifications for the burden imposed by its
rule,’ taking into consideration ‘the extent to which those interests make it necessary to
burden the plaintiff’s rights.’” Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789).
7
Case 2:12-cv-00185-LA Filed 04/29/14 Page 7 of 90 Document 127A. 166
The rigor of the inquiry into the state’s interests depends on the extent to which the
challenged election law burdens the right to vote. Id. Even very slight burdens “must be
justified by relevant and legitimate state interests ‘sufficiently weighty to justify the
limitation.’” Crawford, 553 U.S. at 191 (quoting Norman v. Reed, 502 U.S. 279, 288–89
(1992)).
In Crawford, the Supreme Court considered a claim similar to that of the Frank
plaintiffs. The Crawford plaintiffs challenged an Indiana statute requiring citizens voting in
person on election day, or casting a ballot in person at the office of the circuit court clerk
prior to election day, to present a photo ID. 553 U.S. at 185. A majority of the Court
determined that the plaintiffs had failed to prove that the statute was invalid. Although no
opinion expressed the rationale of a majority of the Court, six Justices agreed that the
Anderson/Burdick balancing test applied to the plaintiffs’ claim. See Crawford, 553 U.S. at
189–91 (opinion of Stevens, J.); id. at 204–08 (opinion of Scalia, J.). The opinions differed,
however, with respect to how the balancing test was to be applied. Justice Scalia’s view of
the test was that a law could be evaluated only on the basis of its “reasonably foreseeable
effect on voters generally,” rather than on its effect on subgroups of voters. Id. at 206
(emphasis in original). In contrast, Justice Stevens seemed to assume that a law could be
invalid based on its effect on a subgroup of voters. Id. at 200–03. Here, however, he
concluded that the plaintiffs had failed to produce a record that enabled the Court to
determine whether the law placed an excessive and/or unjustified burden on the rights of
a subgroup of voters. Id. at 200 (“[O]n 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 or the
portion of the burden imposed on them that is fully justified.”). Justice Stevens determined
8
Case 2:12-cv-00185-LA Filed 04/29/14 Page 8 of 90 Document 127A. 167
that this gap in the record left the Court with no choice but to weigh the state’s justifications
for the law against its “broad application to all Indiana voters.” Id. at 202–03. He and the
Justices who joined his opinion concluded that because 99% of Indiana’s voting-age
population already possessed photo IDs that would allow them to comply with the new law,
id. at 188 n.6, the state’s general interests in the law were sufficient to justify the burdens
it imposed on Indiana voters generally. Id. at 202–03.
Because in Crawford a majority of the Court agreed that a photo ID requirement such
as provided in Act 23 is to be evaluated under the Anderson/Burdick balancing test, I will
apply that test here. However, because a majority of the Court could not agree on how to
apply the test, Crawford is not binding precedent on that matter. “When a fragmented Court
decides a case and no single rationale explaining the result enjoys the assent of five
Justices, the holding of the Court may be viewed as that position taken by those Members
who concurred in the judgment on the narrowest grounds.” Marks v. United States, 430 U.S.
188, 193 (1977) (internal quotation marks and alteration omitted). Here, the opinion
authored by Justice Stevens is the narrowest. Like Justice Scalia, Justice Stevens
concluded that the Indiana law was valid because the state interests justified the law’s
burden on “all Indiana voters.” Crawford, 553 U.S. at 202–03. But Justice Stevens did not
expressly answer the further constitutional question answered by Justice Scalia: whether
a law could be invalidated based on the burdens imposed on a subgroup of voters. Justice
Scalia answered “no” to this question, id. at 204–08, while Justice Stevens determined only
that the plaintiffs had not shown that the Indiana law imposed excessive burdens on a
subgroup of voters, id. at 200–03. Because Justice Stevens’s opinion is narrowest, and
because Justice Stevens did not determine whether a law could be invalidated based on
9
Case 2:12-cv-00185-LA Filed 04/29/14 Page 9 of 90 Document 127A. 168
the burdens it imposes on a subgroup of voters, Crawford is not precedential as to that
question.
To find the rule of decision, then, I revert back to Anderson and Burdick, which are
cases that produced majority opinions. And as I read these cases, they require invalidation
of a law when the state interests are insufficient to justify the burdens the law imposes on
subgroups of voters. Both cases emphasized that “[a] court considering a challenge to a
state election law must weigh ‘the character and magnitude of the asserted injury to the
rights protected by the First and Fourteenth Amendments that the plaintiff seeks to
vindicate’ against ‘the precise interests put forward by the State as justifications for the
burden imposed by its rule,’ taking into consideration ‘the extent to which those interests
make it necessary to burden the plaintiff's rights.’” Burdick, 504 U.S. at 434 (quoting
Anderson, 460 U.S. at 789) (emphasis added). The focus of this language is the rights of
an individual plaintiff rather than the rights of “voters generally.” Crawford, 553 U.S. at 206
(opinion of Scalia, J.). This implies that an unjustified burden on some voters will be enough
to invalidate a law, even if, because the law burdens other voters only trivially, the state’s
interests are sufficient to justify the burden placed on such other voters. Moreover, in
Anderson, the Court explicitly framed the question presented as whether the Ohio law at
issue placed an unconstitutional burden on the voting rights of a subgroup of the state’s
voters—namely, the subgroup composed of Anderson’s supporters. 460 U.S. at 782 (“The
question presented by this case is whether Ohio's early filing deadline placed an
unconstitutional burden on the voting and associational rights of Anderson's supporters.”).
For these reasons, I conclude that a law like Act 23 is invalid if it imposes burdens on a
subgroup of a state’s voting population that are not outweighed by the state’s justifications
10
Case 2:12-cv-00185-LA Filed 04/29/14 Page 10 of 90 Document 127A. 169
for the law.
Given the above legal standards, I will proceed as follows. First, I will identify the
state interests the defendants put forward to justify Act 23 and assess the extent to which
Act 23 is necessary to serve those interests. Second, I will identify and assess the
magnitude of the burdens Act 23 imposes on the right to vote. Finally, I will determine
whether the state’s interests are sufficiently weighty to justify those burdens.
A. The State’s Justifications for Act 23
The defendants claim that Act 23's identification scheme serves four state interests:
(1) detecting and preventing in-person voter-impersonation fraud; (2) promoting public
confidence in the integrity of the electoral process; (3) detecting and deterring “other types
of voter fraud;” and 4) promoting orderly election administration and accurate
recordkeeping. Defs.’ Post-Trial Br. at 8.
1. Detecting and preventing in-person voter-impersonation fraud
The defendants claim that Act 23 will deter or prevent voter fraud by making it harder
to impersonate a voter and cast a ballot in his or her name without detection. Detecting and
preventing in-person voter-impersonation fraud is a legitimate state interest, see Crawford,
553 U.S. at 196, and the photo ID requirement does, to some extent, serve that interest by
making it harder to impersonate a voter at the polls. However, as explained below, because
virtually no voter impersonation occurs in Wisconsin and it is exceedingly unlikely that voter
impersonation will become a problem in Wisconsin in the foreseeable future, this particular
state interest has very little weight.
The evidence at trial established that virtually no voter impersonation occurs in
11
Case 2:12-cv-00185-LA Filed 04/29/14 Page 11 of 90 Document 127A. 170
Wisconsin. The defendants could not point to a single instance of known voter
impersonation occurring in Wisconsin at any time in the recent past. The only evidence
even relating to voter impersonation that the defendants introduced was the testimony of
Bruce Landgraf, an Assistant District Attorney in Milwaukee County. Landgraf testified that
in “major elections,” by which he means gubernatorial and presidential elections, his office
is asked to investigate about 10 or 12 cases in which a voter arrives at the polls and is told
by the poll worker that he or she has already cast a ballot. Tr. 2056–57. However, his office
determined that the vast majority of these cases—approximately 10 each election—have
innocent explanations, such as a poll worker’s placing an indication that a person has voted
next to the wrong name in the poll book. Tr. 2057. Still, about one or two cases each major
election remain unexplained, and the defendants contend that these one or two cases could
be instances of voter-impersonation fraud. I suppose that’s possible, but most likely these
cases also have innocent explanations and the District Attorney’s office was simply unable
to confirm that they did. Moreover, the most Landgraf’s testimony shows is that cases of5
potential voter-impersonation fraud occur so infrequently that no rational person familiar with
the relevant facts could be concerned about them. There are over 660,000 eligible voters
in Milwaukee County, and if the District Attorney’s office finds two unexplained cases each6
Landgraf did not explain the methods his office used to determine that there were5
innocent explanations for the vast majority of cases, but the defendants introduced intoevidence memos discussing the steps the District Attorney’s office took to investigate twopotential “stolen vote” cases. Defs.’ Ex. 1033, 1034. In both cases, the investigatorinterviewed the voter and the poll workers who recorded the allegedly fraudulent vote andreviewed the entry for the vote in the poll book. Id. This was the extent of the DistrictAttorney’s investigation.
Frank Ex. 600 at 34 (Table 2).6
12
Case 2:12-cv-00185-LA Filed 04/29/14 Page 12 of 90 Document 127A. 171
major election, that means that there is less than one questionable vote cast each major
election per 330,000 eligible voters. The rate of potential voter-impersonation fraud is thus
exceedingly tiny.
The evidence introduced by the plaintiffs confirms that voter-impersonation fraud
does not occur in Wisconsin. The plaintiffs offered the testimony of Lorraine Minnite, a
professor at Rutgers University who specializes in the study of the incidence of voter fraud
in contemporary American elections. Professor Minnite studied elections in Wisconsin
during the years 2004, 2008, 2010 and 2012 to determine whether she could identify any
incidents of voter fraud. She consulted a variety of sources of information, including
newspaper databases, news releases by the Wisconsin Attorney General, criminal
complaints, decisions by state courts, and documents issued by the GAB. From these
sources, Minnite was able to identify only one case of voter-impersonation fraud. Tr.
1036–42. And the single case of voter-impersonation fraud did not involve in-person voter
impersonation. Rather, that case involved a man who applied for and cast his recently
deceased wife’s absentee ballot. Tr. 1041. Thus, from Minnite’s work, it appears that there7
Act 23's photo ID requirement applies to absentee ballots, and thus had it been in7
effect at the time of this incident it may have prevented the man from voting his deceasedwife’s absentee ballot. However, the man could have easily circumvented Act 23 in thisinstance if he possessed his deceased wife’s ID, since to vote absentee all a person needsto do is mail a copy of a photo ID with the request for an absentee ballot. Tr. 1041–42; Wis.Stat. § 6.87(1). Cf. Crawford v. Marion Cnty. Election Bd., 472 F.3d 949, 954 (7th Cir.2007), aff’d, 553 U.S. 181 (2008) (noting that a photo ID requirement for absentee ballotsis pointless because “[t]he voter could make a photocopy of his driver's license or passportor other government-issued identification and include it with his absentee ballot, but therewould be no way for the state election officials to determine whether the photo ID actuallybelonged to the absentee voter, since he wouldn't be presenting his face at the pollingplace for comparison with the photo”).
13
Case 2:12-cv-00185-LA Filed 04/29/14 Page 13 of 90 Document 127A. 172
have been zero incidents of in-person voter-impersonation fraud in Wisconsin during recent
elections.
Some have suggested that voter fraud might be more widespread than the low
number of prosecutions indicates because the laws that prohibit voter fraud are
underenforced. See Crawford, 472 F.3d at 953. However, the defendants do not suggest
that there is any underenforcement of such laws in Wisconsin. And the evidence at trial
indicates that such laws are vigorously enforced. In 2004, a Joint Task Force was created
to investigate and prosecute voter fraud that occurred in Milwaukee during the 2004
presidential election. LULAC Ex. 68 ¶ 28. The task force included the United States
Attorney, the Milwaukee County District Attorney, the Milwaukee City Attorney and a
representative of the Milwaukee Police Department. In 2002, the United States Department
of Justice started the Ballot Access and Voting Integrity Initiative in response to allegations
of voter fraud across the country. LULAC Ex. 68 ¶¶ 20, 25. From 2002 to 2005, one of the
goals of this initiative was to identify and prosecute individuals who committed voter fraud.
Previously, the Department had only brought charges against conspiracies to corrupt the
political process and not against individuals acting alone. One of the cities the Department
focused on was Milwaukee. And, in September 2008, the Wisconsin Attorney General
announced that his office was partnering with the Milwaukee County District Attorney to
form an “Election Fraud Task Force” to detect, investigate and prosecute election fraud
crimes in Milwaukee County. LULAC Ex. 812 ¶ 4. Before the 2010 general election, the
Election Fraud Task Force expanded to include the district attorneys of 11 more counties.
Id. ¶ 5. The task force not only followed-up on complaints about voter fraud, but it also
dispatched teams of assistant attorneys general and special agents for the Division of
14
Case 2:12-cv-00185-LA Filed 04/29/14 Page 14 of 90 Document 127A. 173
Criminal Investigation to polling places across Wisconsin during the 2008, 2010 and 2012
elections, including the special June 2012 recall election. Accordingly, the lack of
prosecutions for voter-impersonation fraud in Wisconsin cannot be attributed to
underenforcement.
The defendants contend that the absence of known instances of voter-impersonation
fraud could be explained by the fact that such fraud is difficult to detect. However, the
witnesses called by the defendants to testify about their efforts to investigate voter fraud did
not indicate that voter-impersonation fraud is difficult to detect. When Michael Sandvick, a
former Milwaukee police officer, was asked at trial whether or not voter fraud was difficult
to detect, he answered, “There are different types of voter fraud. Some of them are hard to
detect and some of them are not.” Tr. 2036. When asked what types are hard to detect, he
gave only one example: someone using a fake address to vote. He did not mention voter
impersonation.
Moreover, if voter impersonation is occurring often enough to threaten the integrity
of the electoral process, then we should be able to find more evidence that it is occurring
than we do. If, for example, voter impersonation is a frequent occurrence, then we should
find more than two unexplained cases per major election in which a voter arrives at the polls
only to discover that someone has already cast a ballot in his or her name. Another way to
determine whether voter impersonation is occurring is a method suggested by the
defendants’ expert witness, M.V. Hood III, a professor of political science at the University
of Georgia. See M.V. Hood III & William Gillespie, They Just Do Not Vote Like They Used
To: A Methodology to Empirically Assess Election Fraud, 93 Social Science Quarterly 76
(March 2012). Professor Hood and his coauthor explain that one way to commit voter-
15
Case 2:12-cv-00185-LA Filed 04/29/14 Page 15 of 90 Document 127A. 174
impersonation fraud is to impersonate a registered voter who is recently deceased.
Obviously, the deceased voter cannot show up at the polls, and thus a person who wanted
to cast an illegal ballot could appear at the place where the deceased voter was registered
and give the deceased voter’s name. Hood’s method for detecting this type of fraud involves
comparing a database of deceased registered voters to a database of persons who had
cast ballots in a recent election. If the researcher is able to match entries in both databases,
then further investigation could be undertaken to determine whether voter impersonation
had occurred. Hood and his coauthor applied this methodology to the 2006 elections in
Georgia and found no evidence of ballots being illegally cast in the name of deceased
voters. Id. at 81–92.
Thus, although voter-impersonation fraud may be difficult to detect, it is not invisible.
If it is occurring in Wisconsin to any significant extent, then at trial the defendants should
have been able to produce evidence that it is. The absence of such evidence confirms that
there is virtually no voter-impersonation fraud in Wisconsin.
The defendants also contend that even if there currently is no voter impersonation
in Wisconsin, the state has an interest in taking steps to prevent voter-impersonation fraud
from becoming a problem in the future. In support of this contention, the defendants point
out that the Supreme Court has stated that legislatures “should be permitted to respond to
potential deficiencies in the electoral process with foresight rather than reactively, provided
that the response is reasonable and does not significantly impinge on constitutionally
protected rights.” Munro v. Socialist Workers Party, 479 U.S. 189, 195–96 (1986). However,
the Supreme Court has also stated that states cannot burden the right to vote in order to
address dangers that are remote and only “theoretically imaginable.” Williams v. Rhodes,
16
Case 2:12-cv-00185-LA Filed 04/29/14 Page 16 of 90 Document 127A. 175
393 U.S. 23, 33 (1968). In the present case, no evidence suggests that voter-impersonation
fraud will become a problem at any time in the foreseeable future. As the plaintiffs’
unrebutted evidence shows, a person would have to be insane to commit voter-
impersonation fraud. The potential costs of perpetrating the fraud, which include a $10,000
fine and three years of imprisonment, are extremely high in comparison to the potential
benefits, which would be nothing more than one additional vote for a preferred candidate
(or one fewer vote for an opposing candidate), a vote which is unlikely to change the
election’s outcome. Tr. 1017–19, 1342. Adding to the cost is the fact that, contrary to the
defendants’ rhetoric, voter-impersonation fraud is not “easy” to commit. To commit voter-
impersonation fraud, a person would need to know the name of another person who is
registered at a particular polling place, know the address of that person, know that the
person has not yet voted, and also know that no one at the polls will realize that the
impersonator is not the individual being impersonated. Tr. 1341. The defendants offered no
evidence at trial to support the notion that it is easy to obtain this knowledge. Thus, given
that a person would have to be insane to commit voter-impersonation fraud, Act 23 cannot
be deemed a reasonable response to a potential problem.8
2. Promoting public confidence in the integrity of the electoralprocess
The defendants claim that the photo ID requirement serves the state’s interest in
I also note that, if the state were concerned with preventing voter fraud from8
becoming a problem in the future, it would be taking steps to combat forms of voter fraudother than in-person voter impersonation. As Professor Barry Burden explained, “[i]f thereis fraud taking place on any scale, it’s going to be more likely to happen with absenteeballots and with voter registration, but that’s not where [Act 23] targeted its efforts in aneffort to stop voter fraud.” Tr. 1342.
17
Case 2:12-cv-00185-LA Filed 04/29/14 Page 17 of 90 Document 127A. 176
promoting confidence in the integrity of the electoral process. It is true that the state has an
interest in protecting the public’s confidence in the integrity of elections so that citizens are
encouraged to participate in the democratic process. Crawford, 553 U.S. at 197. However,
the defendants produced no empirical support for the notion that Act 23's photo ID
requirement actually furthers this interest. In contrast, one of the plaintiffs’ expert witnesses,
Barry Burden, a professor of political science at the University of Wisconsin–Madison,
testified that the available empirical evidence indicates that photo ID requirements have no
effect on confidence or trust in the electoral process. He described a study conducted by
Stephen Ansolabehere and Nathaniel Persily and published in the Harvard Law Review
which looked at the relationship between photo ID laws and voter confidence in the electoral
process. See Stephen Ansolabehere & Nathaniel Persily, Vote Fraud in the Eye of the
Beholder: The Role of Public Opinion in the Challenge to Voter Identification Requirements,
121 Harv. L. Rev. 1737, 1756 (2008). Burden explained that this study employed
multivariate analysis of survey data and found “zero relationship” between voter ID laws and
a person’s level of trust or confidence in the electoral process. Tr. 1385.
Perhaps the reason why photo ID requirements have no effect on confidence or trust
in the electoral process is that such laws undermine the public’s confidence in the electoral
process as much as they promote it. As Professor Minnite testified, the publicity surrounding
photo ID legislation creates the false perception that voter-impersonation fraud is
widespread, thereby needlessly undermining the public’s confidence in the electoral
process:
Q. And based on your research, do you think the public thinks there’smore voter fraud than there actually is?
18
Case 2:12-cv-00185-LA Filed 04/29/14 Page 18 of 90 Document 127A. 177
A. Yes.
Q. And why do you think that occurs?
A. Well, I think people don’t pay a lot of attention to these issues. I wouldimagine that concern about voter fraud is probably not on the very topof everyone’s list of concerns with respect to public policy or so forth,and so they don’t know a lot about it.
They don’t know a lot about how elections are run. They don’tknow about all the details. They don’t pay a lot of attention whenpoliticians are fighting over ID laws. They only know what they maypick up on a little bit from the news here and there. And when youhave a lot of this discussion about voter fraud when voter fraudallegations are being made and they’re being picked up in the mediaand they’re being repeated over and over and over again, the publicmight generally have a sense that there might be a little bit of aproblem.
And I’ve also written about how—and this is my view, howthere’s kind of—we have a kind of cynicism about politics in the UnitedStates. And we have what I call the voter fraud myth, connecting tosort of the larger cultural myth about the corruption of politics and thatpeople who engage in politics are somehow corrupt.
So it sort of connects to a broader sense to perhaps a new kindof cynicism when people are catching every now and then on the newsor in the newspaper another story about somebody may have votedtwice or . . . [an] “illegal” citizen may have cast an illegal ballot.
So in general, the sort of context over the last so many yearsthat’s been created to the average person, I think they don’t know whatto make of it.
So they defer to what we would call, in survey research, eliteopinion. And when they hear people in important positions ingovernment saying there’s a lot of fraud out there, when this particularlaw is meant address all this fraud, they’re going to intend to maybetake that on authority because they’ll say I don’t know. I don’t knowhow to run elections. I don’t hear too much about it, but I hear animportant person or government official saying there’s a lot of fraud, Ithink that’s really influenced people to think that the problem is reallybigger than it is.
Tr. 1019–20. Burden likewise testified that unsubstantiated allegations of voter fraud made
19
Case 2:12-cv-00185-LA Filed 04/29/14 Page 19 of 90 Document 127A. 178
by public officials undermine confidence in the electoral system. Tr. 1388–89. And Kevin
Kennedy, the director of the GAB, in a letter to the Speaker of the Wisconsin State
Assembly, offered the same opinion: “Speaking frankly on behalf of our agency and local
election officials, absent direct evidence I believe continued unsubstantiated allegations of
voter fraud tend to unnecessarily undermine the confidence that voters have in election
officials and the results of the elections.” Tr. 1389.
Another way that photo ID laws undermine confidence in the electoral process is by
causing members of the public to think that the photo ID requirement is itself
disenfranchising voters and making it harder for citizens to vote, thus making results of
elections less reflective of the will of the people. See Tr. 578–79, 582–83 (testimony that
Act 23 will exacerbate the lack of trust that the Black and Latino communities already have
in the system); Tr. 951 (Lorene Hutchins, a Wisconsin voter, testified that she believes Act
23 is designed to keep certain people from voting); Tr. 396 (testimony that many voters
believe Act 23 was designed to confuse voters).
For these reasons, I conclude that Act 23 does not further the state’s interest in
promoting confidence in the electoral process.
3. Detecting and deterring other types of fraud
The defendants contend that the photo ID requirement will help detect and deter
forms of voter fraud other than voter impersonation. However, the defendants do not
adequately explain how that could be so. The first type of unlawful voting the defendants
cite is “voting under invalid voter registrations.” Defs.’ Post-Trial Br. at 12–13. The examples
the defendants give of this kind of voter fraud are voting by a registered voter who has been
convicted of a felony and voting by a non-citizen who has managed to register to vote.
20
Case 2:12-cv-00185-LA Filed 04/29/14 Page 20 of 90 Document 127A. 179
However, the defendants do not explain how the requirement to present an ID at the polls
will prevent these types of unlawful voting, and I cannot think of any way that it could. If a
person is registered and has a valid ID, that person will be allowed to vote. No evidence in
the record indicates that persons convicted of a felony or non-citizens will be unable to
present qualifying forms of ID. The defendants also claim that the photo ID requirement will
help prevent unlawful voting by registered Wisconsin voters who no longer maintain
residency in the state but who have not yet been removed from the poll list and unlawful
double voting by individuals who register to vote in more than one state. Again, however,
the defendants fail to explain how the requirement to present a photo ID will prevent these
forms of unlawful voting, and I cannot think of any way that it could. Thus, I find that Act 23
does not serve the state’s interest in preventing types of voting fraud other than in-person
voter-impersonation fraud.
4. Promoting orderly election administration and accurate recordkeeping
The final state interest cited by the defendants is the state’s interest in promoting
orderly election administration and accurate recordkeeping. Again, there is no question that
this is an important state interest. See Crawford, 553 U.S. at 196. However, the defendants
have not identified any way in which Act 23's photo ID requirement serves this interest that
is distinct from the state’s interest in detecting and preventing voter fraud. See id.
(mentioning the state’s interest in promoting orderly election administration and accurate
recordkeeping in the course of a discussion of the state’s interest in detecting and
preventing voter fraud). Thus, Act 23 serves the state’s interest in orderly election
administration and accurate recordkeeping only to the extent that it serves the state’s
21
Case 2:12-cv-00185-LA Filed 04/29/14 Page 21 of 90 Document 127A. 180
interest in detecting and preventing voter fraud. For the reasons already discussed, Act 23
only weakly serves the latter interest.
B. The Burdens Imposed by Act 23
Act 23 applies to all Wisconsin residents. However, the burdens it imposes on the
right to vote fall primarily on individuals who do not currently possess a photo ID. For those
who already have a qualifying ID, such as a driver’s license, the barrier to voting that Act 23
creates is extremely low: such individuals must simply remember to bring their IDs to the
polls. But, as I will discuss, many eligible voters do not currently have a photo ID. And the
daily lives of many of these individuals are such that they have not had to obtain a photo
ID for purposes such as driving. For these eligible voters, the requirement that they obtain9
a photo ID in order to vote erects a more substantial barrier. They must do whatever it takes
to gather the necessary documents and make a special trip to the DMV in order to procure
an ID that they will expect to use for no purpose other than to vote.
Although it is true that those individuals who already have IDs must have at one time
experienced the burdens and inconveniences of obtaining them (and must continue to
experience the burdens and inconveniences of keeping their IDs valid), the photo ID
requirement creates a unique barrier for those who would not obtain a photo ID but for Act
Tr. 40–41 (Alice Weddle testified that she does not have a qualifying ID, does not9
drive, has never flown on an airplane, has never left the United States and does not havea bank account); Tr. 55 (Plaintiff Eddie Holloway testified that he does not have a qualifyingID and has never traveled on an airplane); Tr. 207–08 (Plaintiff Shirley Brown testified thatshe does not have an ID and has never left the country or flown on a plane); Tr. 703–04(Rose Thompson testified that before Act 23, she had no need for a photo ID); Tr. 434(Kenneth Lumpkin testified that inner-city businesses understand that many of theircustomers do not have a photo ID and that they adapt as, for example, by cashing checkswithout requiring an ID).
22
Case 2:12-cv-00185-LA Filed 04/29/14 Page 22 of 90 Document 127A. 181
23. The individuals who obtained their IDs before the photo ID requirement went into effect
(or who would today obtain an ID for reasons unrelated to voting) expect to derive benefits
from having those IDs that are unrelated to voting. For example, a person who obtains a
driver’s license receives a daily benefit—the ability to drive—from having experienced the
burden of gathering the necessary documents and visiting the DMV. Once the photo ID
requirement was adopted, that person received the benefit of being able to vote at no
additional cost. In contrast, 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. This difference
in expected benefits results in Act 23 imposing a unique burden on those who need to
obtain an ID exclusively for voting, with the result that these individuals are more likely to
be deterred from voting than those who already possess an ID for other reasons.
Based primarily on the testimony of plaintiff’s expert, Leland Beatty, a statistical
marketing consultant with extensive experience in business and politics, I find that
approximately 300,000 registered voters in Wisconsin, roughly 9% of all registered voters,
lack a qualifying ID. To put this number in context, in 2010 the race for governor in10
Wisconsin was decided by 124,638 votes, and the race for United States Senator was
decided by 105,041 votes. See LULAC Ex. 2 ¶ 10 & Table 2. Thus, the number of
registered voters who lack a qualifying ID is large enough to change the outcome of
In Appendix A, I discuss in detail how I arrived at this figure.10
23
Case 2:12-cv-00185-LA Filed 04/29/14 Page 23 of 90 Document 127A. 182
Wisconsin elections. In addition to these registered voters without an ID, there are a number
of persons who are eligible to vote but not yet registered who lack an ID. Because
Wisconsin permits same-day registration at the polls, any eligible voter may become a
registered voter on election day. One of the plaintiffs’ expert witnesses, Matthew Barreto,
a professor at the University of Washington and an expert on voting behavior, survey
methods and statistical analysis, conducted a telephonic survey of eligible voters in
Milwaukee County. Professor Barreto found that there were 63,085 eligible voters in
Milwaukee County alone who lack a qualifying ID.11
A substantial number of the 300,000 plus eligible voters who lack a photo ID are low-
income individuals who either do not require a photo ID to navigate their daily lives or who
have encountered obstacles that have prevented or deterred them from obtaining a photo
ID. At trial, I heard from eight witnesses who intend to vote in Wisconsin elections but who
do not currently possess a qualifying photo ID. Seven of these witnesses are low income.
Alice Weddle testified that she is unemployed, receives Social Security and
Medicare/Medicaid benefits and has no bank accounts or credit cards. She attempted to
obtain an ID but was unable to do so because she does not have a birth certificate. Eddie
Holloway testified that he would be homeless if his sister did not agree to take him in, and
that he is on various forms of public assistance. He testified that he attempted to obtain an
ID but was unable to do so because of an error on his birth certificate that he cannot afford
to have corrected. Rickey Davis testified that he is unemployed, has no bank accounts and
attempted to obtain a photo ID but could not get one because he does not have a birth
In Appendix B, I discuss Professor Barreto’s conclusions in more detail. 11
24
Case 2:12-cv-00185-LA Filed 04/29/14 Page 24 of 90 Document 127A. 183
certificate. Shirley Brown testified that she lives on Social Security disability and attempted
to obtain an ID but was unable to do so because she does not have a birth certificate.
Melvin Robertson testified that he has no education beyond grade school and that he would
like to obtain an ID but cannot because he lacks a birth certificate. Rose Thompson testified
that after Act 23 was enacted, she attempted to obtain an ID but could not afford to pay the
fees associated with obtaining her birth certificate from Mississippi. Sim Newcomb testified
that he does not drive, relies on public transportation, has not recently traveled outside the
United States, does not travel on airplanes, and that to the extent he needs a photo ID for
banking, he is able to use his Veteran’s ID card, which is not an acceptable ID under Act
23. He testified that he attempted to obtain a Wisconsin ID card but could not satisfy the
DMV’s documentation requirements.12
Professor Barreto’s research sheds additional light on the demographic makeup of
those who lack an ID and lends further support to the conclusion that a substantial number
of the 300,000 plus voters who lack an ID are low income. Barreto found that between
20,494 and 40,511 eligible voters in Milwaukee County who lack an ID earn less than
$20,000 per year. Frank Ex. 600 at 31. As already noted, Barreto found that the total
number of eligible voters in Milwaukee County who lack an ID is 63,085. Thus, individuals
who make less than $20,000 per year comprise between 32% and 64% of the population
Many other witnesses, including public officials and employees of service12
organizations, testified that they have encountered many low-income voters who lackqualifying IDs. These witnesses include Nicole Collazo-Santiago, Yolanda Adams, CarmenCabrera, Pastor Michelle Yvette Townsend de Lopez, Anita Johnson, Kenneth Lumpkin,Richard Bolar, Jayme Montgomery Baker, and Reverend Willie Brisco. Tr. 128–30,137–49, 154, 163–72, 371–73, 397–400, 433, 436, 445–47, 491–92, 578, 582.
25
Case 2:12-cv-00185-LA Filed 04/29/14 Page 25 of 90 Document 127A. 184
of eligible voters without an ID. Barreto also found that 80.5% of the eligible voters without
an ID have no education past the high-school level. Frank Ex. 600 at 29. Because
individuals with less education are likely to be lower income, this finding also shows that13
a substantial number of voters who lack an ID are low income.
In light of the fact that a substantial number of the 300,000 plus voters who lack an
ID are low income, Act 23's burdens must be assessed with reference to them rather than
with reference to a typical middle- or upper-class voter. Although the latter voter may have
little trouble obtaining an ID, he or she is not the type of voter who will need to obtain one
in order to comply with Act 23. Thus, in the discussion that follows, I identify the burdens
associated with obtaining a qualifying photo ID and explain how they will impact low-income
voters.
For almost all low-income voters who lack an ID, the easiest ID to obtain will be the
free state ID card, which is issued by the DMV. To obtain a state ID card, a person generally
must present documents that satisfy four requirements: (1) proof of name and date of birth,
(2) proof of United States citizenship or legal presence in the United States, (3) proof of
identity, and (4) proof of Wisconsin residency. See Wis. Admin. Code § Trans 102.15. The
DMV will only accept certain documents to satisfy each of these requirements. However,14
Tr. 1208 (Plaintiffs’ expert, Marc Levine, a Professor of History, Urban Studies and13
Economic Development at the University of Wisconsin-Milwaukee, testified that educationlevels correlate “quite highly” with levels of employment.).
The DMV allows a person to apply for either a REAL ID compliant or non-14
compliant card. A REAL ID compliant card is a card that satisfies the minimum issuancestandards set out in the REAL ID Act of 2005, and it will be accepted by the federalgovernment for official purposes (such as entering a federal building or boarding acommercial airplane). In this opinion, I set out the requirements for obtaining a non-compliant card because they are a little more flexible.
26
Case 2:12-cv-00185-LA Filed 04/29/14 Page 26 of 90 Document 127A. 185
if a person has a Wisconsin driver’s license or state ID card that has been expired for fewer
than eight years, the person will be allowed to renew using a procedure that generally
requires only proof of a social security number. Tr. 1092–94; Defs.’ Ex. 1074.
To prove name, date of birth and United States citizenship, most people will need to
produce a birth certificate. The evidence at trial showed that a substantial number of eligible
voters who lack Act 23-qualifying IDs also lack birth certificates. Professor Barreto, in his
survey of Milwaukee County eligible voters, found that 25,354 persons lacked both a
qualifying ID and a birth certificate. Tr. 301–02. Seven of the witnesses who testified about15
their own lack of a qualifying ID stated that it was the lack of a birth certificate that was
preventing them from obtaining an ID. Tr. 37–38, 93–94, 209–11, 401, 418–19, 708–09;
Frank Ex. 606 at 7–12.
To obtain a Wisconsin birth certificate, a person must produce either a driver’s
license or a state ID card or two documents from the following list: (1) a government-issued
ID with photograph, (2) a United States passport, (3) a checkbook or bankbook, (4) a major
credit card, (5) a health-insurance card, (6) a recent, signed lease, or (7) a utility bill or traffic
ticket. Tr. 1663; Frank Ex. 138. The person must also pay a fee of $20. Wis. Stat.
§ 69.22(1)(a). Those who were not born in Wisconsin will need to determine how to obtain16
Of those who lacked both an ID and a birth certificate, some were able to satisfy15
the name, date of birth, and citizenship requirements using other documents, and thus only20,162 of the 25,354 persons who lacked birth certificates would have been unable tosatisfy those requirements. Tr. 301–02.
After the passage of Act 23, two Wisconsin counties, Dane and Milwaukee,16
allocated sums to pay for Wisconsin birth certificates for persons born in those counties.Tr. 494, 535–36, 1793.
27
Case 2:12-cv-00185-LA Filed 04/29/14 Page 27 of 90 Document 127A. 186
a birth certificate from their place of birth. It generally takes more time and expense to
obtain a birth certificate from outside one’s state of residence than it does to obtain a birth
certificate from within the state. See LULAC Ex. 811 ¶ 60. Professor Barreto found that
46.9% of eligible voters in Milwaukee County who lack both an accepted photo ID and a
valid birth certificate were born outside Wisconsin. Frank Ex. 600 at 24.
Individuals who need a free state ID card must also produce a document that the
DMV will accept as proof of identity. Professor Barreto found that there are approximately
1,640 eligible voters in Milwaukee County alone who do not have qualifying photo IDs and
do not have any of the documents the DMV accepts to prove identity. Frank Ex. 600 at 37.
Newcomb, one of the eight witnesses who testified about their inability to obtain an ID,
testified that when he tried to obtain a state ID card he was unsuccessful because he lacked
proof of identity. Tr. 845–46. Other witnesses, Dewayne Smith and Carl Ellis, testified that
they did not have proof of identity when Act 23 first passed and had to obtain such proof
before they could apply for state ID cards. Tr. 562–63, 566–67, 856–58.
Most voters who do not have proof of identity will need to procure a social security
card, as this is the most commonly available document to use to prove identity. Defs.’ Ex.
1077; Tr. 467, 1819. To obtain a social security card, a person must visit the Social Security
Office and show “convincing documentary evidence of identity.” 20 C.F.R. § 422.10(c). Such
evidence “may consist of a driver’s license, identity card, school record, medical record,
marriage record, passport, Department of Homeland Security document, or other similar
document serving to identify the individual.” Id. Voters who need free state ID cards to vote
will not have driver’s licenses, state ID cards or passports, so they will need to present one
of the other items on the list. If they do not have one of these items, they will need to
28
Case 2:12-cv-00185-LA Filed 04/29/14 Page 28 of 90 Document 127A. 187
procure one by visiting a school, hospital or another governmental agency, where they may
again be asked for an ID, and the document may cost money. See Tr. 857 (Smith had to
ask his sister to show the hospital her photo ID so he could get his medical records to apply
for a social security card); Tr. 121 (marriage certificate from the State of Illinois costs $11).
The remaining documentary requirement to obtain a state ID card is proof of
residence. For most voters, this requirement will be easy to satisfy, as the DMV accepts a
variety of documents that most individuals are likely to have on hand. Still, homeless voters
who do not have a relationship with a social-service agency will be unable to prove
residency. Tr. 1889 (homeless people can only prove residence by getting a letter from a
social service agency). And they will be unable to provide the DMV with a physical address
where it can send their ID cards once they are ready. Id. This will make it impossible for
them to obtain a state ID card because the DMV does not allow individuals to pick up ID
cards in-person. Id.
Having explained the general legal requirements for obtaining a free state ID card
and identified the necessary underlying documents, I consider the practical obstacles a
person is likely to face in deciding whether to obtain an ID for voting purposes. Again,
because most individuals who lack ID are low income, I consider these obstacles from the
perspective of such an individual.
The first obstacle to obtaining an ID will be to identify the requirements for obtaining
a free state ID card. I am able to summarize the requirements for obtaining an ID because
I have access to the Wisconsin Statutes and Administrative Code and heard testimony on
the topic at trial. A typical voter who needs an ID, however, must educate him or herself on
these requirements in some other way. Although this may be easy for some, for others,
29
Case 2:12-cv-00185-LA Filed 04/29/14 Page 29 of 90 Document 127A. 188
especially those with lower levels of education, it will be harder. Moreover, a person who
needs to obtain one or more of the required documents to obtain an ID, such as a birth
certificate, must determine not only the DMV’s documentation requirements, but also the
requirements of the agency that issues the missing document. This adds a layer of
complexity to the process. See,e.g., Tr. 93–94 (Davis testified that the DMV told him he
needs to order his birth certificate from Tennessee but he has no idea how to go about
ordering it).
Assuming the person is able to determine what he or she needs to do to obtain an
ID, the person must next consider the time and effort involved in actually obtaining the ID.
This will involve at least one trip to the DMV. There are 92 DMV service centers in the state.
Defs.’ Ex. 1071. All but two of these close before 5:00 p.m. and only one is open on
weekends. Tr. 1083–84, 1806–07. So, it is likely that the person will have to take time off
from work. The person will either need to use vacation time if it’s available or forego the
hourly wages that he or she could have earned in the time it takes to obtain the ID. See Tr.
845 (Newcomb was unable to take paid time off from work to obtain an ID). The person will
also have to arrange for transportation. Since this person does not have a driver’s license
and is low income, most likely he or she must use public transportation or arrange for
another form of transportation. See Tr. 845–46 (Newcomb does not have a car and had to
take a 45-minute bus ride to get to the DMV); Tr. 211 (Brown paid $3.00 each way to a
driver from Medicare so she could get to the DMV); Tr. 562, 566–67 (Ellis walked to the
DMV, which took 45 minutes each way, because he does not have a car and could not
afford bus fare); Tr. 151–52 (Adams testified that the DMV in Kenosha is “out in the county,”
which means people who live in the inner-city and do not have cars must take the bus to
30
Case 2:12-cv-00185-LA Filed 04/29/14 Page 30 of 90 Document 127A. 189
get there); Tr. 430–33 (Lumpkin stated that the location of the DMV in Racine County is a
problem because it is 3–5 miles away from the inner-city where the majority of the city’s
population lives, and cabs do not serve the inner-city); see also Frank Ex. 635 at 50–51
(GAB received a lot of complaints from voters who were having a hard time getting to the
DMV, even from people in the City of Milwaukee, which has a “pretty good” public
transportation system). Further, for some individuals public transportation will be of no help
because not all of the DMV’s service centers are accessible by public transit. Tr. 1848.
If the person does not have all of the documents the DMV requires to obtain an ID,
then the person will most likely have to visit at least one government agency in addition to
the DMV. If that is the case, then the person will likely have to take even more time off of
work and pay additional transportation costs. Tr. 856–58 (Smith testified that he had to take
the bus and ask for rides from others in order to visit the DMV, the Social Security Office,
and other locations). Perhaps it is possible for a person to obtain a missing underlying
document by mail, but even so that will require time and effort.
A person who needs to obtain a missing underlying document is also likely to have
to pay a fee for the document. For some low-income individuals, it will be difficult to pay
even $20.00 for a birth certificate. See Tr. 1988–89 (Robert Spindell, a member of the
Board of Election Commissioners for the City of Milwaukee, stated that he personally knows
individuals who will cannot pay even $20.00 for a birth certificate); see also Tr. 431–32
(“[W]hen the choice is made whether or not to pay $33 for an ID or to put some food on the
table, I think any of us can kinda guess which way people will go.”). Three witnesses,
Thompson, Davis and Ellis, testified that they could barely afford to pay for a birth
certificate. Tr. 88, 564–66, 704–05. And Raymond Ciszewski testified that he has met many
31
Case 2:12-cv-00185-LA Filed 04/29/14 Page 31 of 90 Document 127A. 190
low-income individuals in Milwaukee who have trouble paying for their birth certificates.
Ciszewski is a volunteer at St. Benedict’s Church in Milwaukee. Tr. 530–31. He works in the
church’s birth-certificate program, which helps low-income individuals obtain birth
certificates by paying the birth-certificate fee to the extent it exceeds $5.00. Tr. 534–35. The
program primarily serves homeless individuals, persons recently out of jail and persons in
rehabilitation programs. Tr. 532–33. Ciszewski testified that over the last seven years he
has helped over 600 people acquire birth certificates who would not otherwise have been
able to afford them, and many of these people could barely afford the $5.00 co-pay the
church requires. Tr. 532, 534–36. 17
Some voters will find that there is no birth certificate on file for them in the states17
where they were born. This is not a common problem, but it will affect some voters. Tr.1103, 1161. Melvin Robertson and Nancy Wilde testified that they were born in Wisconsin,but the Wisconsin Vital Records Office does not have birth certificates on file for them. Tr.401, 418–19 (Robertson); Frank Ex. 607 at 6–14 (Wilde). Missing birth certificates are alsoa common problem for older African American voters who were born at home in the Southbecause midwives did not issue birth certificates. Tr. 37–38, 205–06, 209, 372, 431, 700.And Amish Mennonite voters frequently lack birth certificates. Tr. 1856–57. There are alsosome voters whose official birth records have been destroyed, for example, in a naturaldisaster like Hurricane Katrina. Tr. 479–80, 1856–57.
If there is no birth record on file in a person’s state of birth, a person can use theMV3002 procedure to prove citizenship and name and date of birth. This procedurerequires a person to ask his or her state of birth to complete DMV form MV3002, certifyingthat there is no birth record on file. Wis. Adm. Code § Trans. 102.15(1), (3)(b). A personmust then submit the completed MV3002 to a DMV team leader or supervisor for reviewalong with alternative documentation that provides “strong evidence” of the person’s“name, date of birth and place of birth.” Tr. 1872; see also Wis. Adm. Code § Trans.102.15(1), (3)(b). Team leaders and supervisors have the discretion to decide on a case-by-case basis whether a person’s alternative documentation is “strong” enough. Tr. 1872;Wis. Adm. Code § Trans. 102.15(3)(c). As a result, whether a voter is able to obtain a stateID card will depend on which DMV service center the voter visits and which supervisor ison duty.
The DMV does not, however, publicize the MV3002 procedure because it wants tominimize exceptions. Tr. 474, 1872, 1877–78. As a result, a person who needs to use theMV3002 may never learn about it. Consequently, those who need to use it are more likelyto give up trying to get an ID than to be granted an exception. The testimony of Debra
32
Case 2:12-cv-00185-LA Filed 04/29/14 Page 32 of 90 Document 127A. 191
An additional problem is whether a person who lacks an ID can obtain one in time
to use it to vote. For many who need an ID, it will take longer than a day or two to gather the
necessary documents and make a trip to the DMV. Indeed, if a person needs to obtain a
birth certificate, especially from another state, it might take weeks or longer to obtain it. Tr.
1114, 1660–61. If an election is imminent, a person may be unable to procure an ID in time
to vote or to validate a provisional ballot by the Friday after the election.
Another problem that arises is a person’s having errors or discrepancies in the
documents needed to obtain an ID. For example, the DMV requires the name on a person’s
Crawford illustrates this problem. Crawford testified that she first took her mother, BettyeJones, to the DMV service center in Waukesha County to get a free state ID card for votingpurposes. But a customer service representative at the DMV told Jones she could not geta state ID card because she did not have a certified copy of her birth certificate. Tr. 60–61.Crawford explained that her mother was born at home in Tennessee in 1935 and hadnever been issued a birth certificate, and Jones offered the DMV an official letter from theState of Tennessee stating that it had no birth record on file. Tr. 56–57, 61–62. Thecustomer service representative told her this was not sufficient. Tr. 62. Crawford asked tospeak with a manager, and the manager agreed with the front-line staff member andinsisted that Jones produce a birth certificate. Tr. 62.
Crawford asked the vital-records office in Tennessee to conduct another search,which again produced no birth record. Tr. 64. She then started the complicated processof applying for a delayed birth certificate. Tr. 64–72. While she was doing this, shecontacted the DMV again via email to confirm that the birth certificate really was requiredand was again told that it was. Tr. 74. When she asked a third time if an exception couldbe made for extenuating circumstances, she was told, “The supervisor at the DMV stationyou go to has the authority to make exceptions; however, I doubt one would be made fornot having either a birth certificate or passport.” Tr. 74. Once she learned that supervisorshad some discretion, Crawford decided to take her mother to the DMV service center inMilwaukee County in the hopes of finding a more helpful supervisor. Tr. 75. There thesupervisor agreed to waive the birth certificate requirement after viewing Jones’salternative documentation. Tr. 75. If Crawford had known about the MV3002 procedure,Jones’s experience with the DMV might have been much different. As it was, Jones onlyreceived a state ID card because her daughter made multiple inquiries and took Jones totwo different DMV service centers. A voter in Jones’s position who is less tenacious willhave to go through the difficult process of obtaining a delayed birth certificate in order topreserve her right to vote.
33
Case 2:12-cv-00185-LA Filed 04/29/14 Page 33 of 90 Document 127A. 192
social security card and birth certificate to match. If there is an error in a person’s social
security record, the person must visit the Social Security Office and correct the record. Tr.
1884. If there is an error in a person’s birth certificate, the person must get it amended.18 19
Making additional trips to government agencies to resolve discrepancies will require more
time off work and additional transportation costs.
The defendants contend that the burden on those with errors or discrepancies in their
Janet Turja, a manager at the DMV’s service center in Waukesha County, testified18
that she encounters individuals with errors in their social security records about once ortwice a week. Tr. 480. And Diane Hermann-Brown testified that she had to take her motherto the Social Security Office because her middle name was “Lois” but Social Security hadit listed as “Loise.” Tr. 1795–96.
Six witnesses testified at trial that they have had problems with birth certificates,19
either their own or a parent’s, that contained errors that the DMV said had to be corrected.See Tr. 43–51 (Holloway’s name is “Eddie Lee Holloway, Jr.” but the birth certificate says“Eddie Junior Holloway” and he has not been able to correct it); Frank Ex. 606 at 8–9;Frank Ex. 1087 (Ruthelle Frank’s maiden name was “Wedepohl” but it is spelled “Wedepal”on her birth certificate); Tr. 952–53, 965–68 (Lorene Hutchins’s birth certificate was missingher first name); Tr. 95–100 (Genevieve Winslow’s maiden name was “Genevieve Kujawski”but her birth certificate says “Ganava Kujansky”); Tr. 113–14 (Miriam Simon’s mother’smaiden name was “Shirley Grace Mendel” but birth certificate says “Genevieve ShirleyMendel”); Tr. 1615–16 (William Trokan’s father’s name was “Andrew Trokan” but birthcertificate says “Andro Trokan”). Amending a birth certificate can be expensive and time-consuming. The process depends on a person’s state of birth and the type of error in thebirth certificate, but most states charge a fee for an amended birth certificate. See, e.g.,Wis. Stat. § 69.22(5)(a) (standard fee for an amended birth certificate in Wisconsin is$30.00), see also Frank Ex. 606 at 9–10 (Frank was told it could cost up to $200.00 to gether Wisconsin birth certificate amended). And a person might need to travel to the placewhere he or she was born to collect documents that verify the person’s name, date of birth,or place of birth, such as early school records or a baptismal certificate. See Tr. 569–71(the birth date on Reverend Willie Brisco’s Mississippi birth certificate was wrong and hisgrandmother in Mississippi had to collect his hospital and school records and travel 210miles to apply for an amendment for him). A person might even have to hire a localattorney to apply for an amendment. Tr. 959–63 (to get her Mississippi birth certificateamended Katherine Clark had to hire an attorney and the process took more than sixmonths and cost more than $2000).
34
Case 2:12-cv-00185-LA Filed 04/29/14 Page 34 of 90 Document 127A. 193
underlying documents is mitigated by the fact that the DMV has discretion to grant
exceptions. Although it is true that the DMV will sometimes make exceptions for such
persons, this fact is not made known to applicants, Tr. 1121–24, 1891–94, and thus those
who might benefit from the exception procedure are unlikely to learn of it. Consequently,
those with errors in their underlying documents are more likely to give up trying to get an ID
than to be granted an exception. The testimony of Genevieve Winslow illustrates this
problem. Winslow is eligible to vote in Wisconsin. She testified that she did not have a
qualifying photo ID when Act 23 went into effect, so she visited the DMV service center in
Milwaukee County on Grange Avenue to apply for a free state ID card for voting purposes.
Tr. 111. She brought with her a certified copy of her birth certificate, a certified copy of her
marriage certificate, her social security card, her Medicare card, her property tax bill and her
expired passport. Tr. 106. But the DMV employee who reviewed her application told her she
could not get an ID because her name is misspelled on her birth certificate. Tr. 99–100. Her
maiden name was Genevieve Kujawski, but her birth certificate says “Ganava Kujansky”
(Ganava is the Polish version of Genevieve). Tr. 95–96. The employee told Winslow she
would need to get her birth certificate amended. Tr. 106–07. Winslow and her son asked
to speak with two different supervisors, who both agreed that Winslow would need to get
an amended birth certificate. Tr. 107. Her son was frustrated by this experience and
decided to call Winslow’s state senator, Senator Tim Carpenter. Tr. 100–01. An aide in the
senator’s office told Winslow’s son to contact James Miller, an official at the DMV. Tr.
100–01, 109–10. Miller said Winslow should return to the same DMV service center with
the same documentation and ask for a particular supervisor. Tr. 110–11. When she did this,
the DMV issued her an ID. Tr. 111–12. No one ever explained to Winslow why she was able
35
Case 2:12-cv-00185-LA Filed 04/29/14 Page 35 of 90 Document 127A. 194
to get an ID. They just told her it was a “special deal.” Tr. 101. 20
Two other witnesses testified that to get an exception they also had to get a public20
official involved. Miriam Simon testified that her mother, Shirley Simon, who passed awayshortly before trial, was eligible to vote in Wisconsin. Simon took her mother to the DMVservice center in Milwaukee County on Mill Road after the passage of Act 23 so she couldobtain a free state ID card for voting purposes. Tr. 116. Her mother brought a certified copyof her birth certificate, her social security card and a utility bill. Tr. 117. But the employeeat the DMV who reviewed Simon’s mother’s application told her she could not get a stateID card because there was an error on her birth certificate. Tr. 118–19. Her mother’smaiden name was Shirley Grace Mendel, but her birth certificate said “Genevieve ShirleyMendel.” Tr. 113–14. All of her other documentation listed her married name, which was“Shirley M. Simon.” Tr. 117. Simon had anticipated a problem with her mother’s birthcertificate and had brought an affidavit from her uncle explaining that the hospital hadmade an error when submitting the information for the birth certificate. Tr. 117–18. Theaffidavit was drafted in the 1970s and her mother had previously used it to obtain apassport. Id. The DMV employee said the affidavit was insufficient and suggested thatSimon’s mother get an amended birth certificate. Tr. 118–19. Like Winslow, Simon wasfrustrated by this experience and decided to call her mother’s state senator, Senator ChrisLarsen, for help. An aide in the senator’s office told Simon that the senator would havesomeone from the DMV call her. Tr. 119–20. Shortly thereafter, she received a call fromDMV supervisor Barney Hall. Tr. 120–21. He told her that if she got a marriage certificatefor her mother, the DMV would be able to issue her an ID. Id. She did this and returned tothe DMV where a supervisor issued her mother a state ID card. Tr. 122–23.
William Trokan testified that he took his father, Andrew Trokan, to the DMV inMilwaukee County on Mill Road to get a free state ID card for voting purposes. Tr.1614–15. His father brought a certified copy of his birth certificate, his social security card,his employee ID from Milwaukee County and a utility bill. Tr. 1615. But the DMV employeewho reviewed his father’s application said he could not get an ID because his birthcertificate listed his first name as “Andro,” which is the Slovak spelling of Andrew. Tr. 1615.All of his other documentation said “Andrew.” Tr. 1615–16. Trokan asked to speak with asupervisor, but the supervisor agreed that the birth certificate would need to be amendedbefore the DMV could issue a state ID card. Tr. 1616. Trokan left frustrated and, likeWinslow, called Senator Carpenter. Tr. 1616–1617. Senator Carpenter said he would setup an appointment for Trokan and his father to return to the DMV. Tr. 1617–18. During thissecond visit, the DMV issued Trokan’s father a state ID card. Id.
Kristina Boardman, the deputy administrator of the DMV, testified that the DMV hasalso received emails from public officials on behalf of other voters who had troubleobtaining state ID cards, and high-ranking DMV officials have intervened on behalf of thosevoters. For example, she received an email from Senator Carpenter’s office about LeoNavulis, a voter who was denied a free state ID card because his name is spelled wrongon his birth certificate. Tr. 1109. Navulis visited the DMV service center in MilwaukeeCounty on Chase Avenue and presented a certified copy of his birth certificate and a socialsecurity card, but he was turned away because his social security card said “Leo Peter
36
Case 2:12-cv-00185-LA Filed 04/29/14 Page 36 of 90 Document 127A. 195
Given the obstacles identified above, it is likely that a substantial number of the
300,000 plus voters who lack a qualifying ID will be deterred from voting. Although not every
voter will face all of these obstacles, many voters will face some of them, particularly those
who are low income. And the evidence at trial showed that even small obstacles will be
enough to deter many individuals who lack an ID from voting. Professor Burden testified
about the “calculus of voting,” which is “the dominant framework used by scholars to study
voter turnout.” LULAC Ex. 811 at 811; Tr. 1278–83. Under this framework, even small
increases in the costs of voting can deter a person from voting, since the benefits of voting
are slight. Tr. 1279–80. As Burden explained:
[The framework] suggests that voting is a low-cost, low-benefit activity andthat very slight changes, marginal changes in the costs can have large effectson participation. So even small factors like weather or illness, day-to-dayinterruptions can deter a person from voting. Obviously administrative costsimposed by the state could be part of that as well.
Tr. 1279–80; see also Tr. 1220–21 (Professor Levine also testified about the calculus of
voting). Thus, for many voters who lack an ID, even minor burdens associated with
obtaining one will be enough to deter them from voting. Cf. Crawford 472 F.3d at 951
(“[E]ven very slight costs in time or bother or out-of-pocket expense deter many people from
voting, or at least from voting in elections they're not much interested in.”). But in light of the
Navulis” while his birth certificate said “Leo Packus Navwulis.” Frank Ex. 428. Boardmanreviewed Navulis’s case and told the supervisor at the DMV service center to make anexception and issue Navulis an ID. Id. Boardman also received some emails fromGovernor Scott Walker’s office asking officials at the DMV to assist voters who were havingtrouble obtaining state ID cards. For example, she received an email about AudreyAnderson, who had asked the governor for help because her mother had been denied anID because there were errors in her birth certificate. Tr. 1861–63; Frank Ex. 429. Inresponse to the email, Boardman asked another DMV official to meet with Anderson andtry to resolve the situation. Id.
37
Case 2:12-cv-00185-LA Filed 04/29/14 Page 37 of 90 Document 127A. 196
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.
C. Weighing the Burdens Against the State Interests
In the previous section I determined that Act 23's burdens will deter or prevent a
substantial number of the 300,000 plus voters who lack an ID from voting. “Substantial” is
of course not a precise quantity, but a more precise measurement is impracticable. There
is no way to determine exactly how many people Act 23 will prevent or deter from voting
without considering the individual circumstances of each of the 300,000 plus citizens who
lack an ID. But no matter how imprecise my estimate may be, it is absolutely clear that Act
23 will prevent more legitimate votes from being cast than fraudulent votes. Cf. Crawford,
472 F.3d at 953–54 (assessing whether “there are fewer impersonations than there are
eligible voters whom the [Indiana photo ID] law will prevent from voting”). Thus, Act 23's
burdens are not justified by the state’s interest in detecting and preventing in-person voter
impersonation. Moreover, because the state’s interest in safeguarding confidence in the
electoral process is evenly distributed across both sides of the balance—a law such as
Act 23 undermines confidence in the electoral process as much as it promotes it—that
interest cannot provide a sufficient justification for the burdens placed on the right to vote.
Accordingly, the burdens imposed by Act 23 on those who lack an ID are not justified.
Having found a violation of the Fourteenth Amendment, I turn to the appropriate
remedy. The lead opinion in Crawford noted that, even if the Indiana photo ID law placed
an unjustified burden on some voters, the plaintiffs had not demonstrated that the proper
remedy would be to invalidate the entire statute. 553 U.S. at 203. In the present case,
38
Case 2:12-cv-00185-LA Filed 04/29/14 Page 38 of 90 Document 127A. 197
however, invalidating Act 23 is the only practicable way to remove the unjustified burdens
placed on the substantial number of eligible voters who lack IDs. 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. It is not clear that
this approach would amount to a narrower remedy than simply enjoining the current law.
Moreover, the Supreme Court has instructed the federal courts to avoid “judicial legislation,”
United States v. Nat’l Treasury Employees Union, 513 U.S. 454, 479 (1995), and this is an
apt term for the remedy envisioned by the plaintiffs. 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. See Ayotte v. Planned
Parenthood, 546 U.S. 320, 329–30 (2006). I conclude that the only practicable remedy is
to enjoin enforcement of the photo ID requirement.21
I also note that the defendants have not suggested that any remedy other than21
enjoining enforcement of the photo ID requirement would be an appropriate remedy in thiscase.
39
Case 2:12-cv-00185-LA Filed 04/29/14 Page 39 of 90 Document 127A. 198
III. Section 2 of the Voting Rights Act
Both the LULAC plaintiffs and the Frank plaintiffs contend that Act 23's photo ID
requirement violates Section 2 of the Voting Rights Act. Before addressing the merits of this
claim, I address the defendants’ argument that the LULAC plaintiffs lack standing to sue
under the Voting Right Act.
A. Standing of LULAC plaintiffs
The defendants contend that the four LULAC plaintiffs lack standing to pursue a
claim for injunctive relief under Section 2 of the Voting Rights Act. Whether they do has little
practical significance, as the plaintiffs in the Frank case unquestionably have standing to
pursue a claim for injunctive relief under Section 2, and only one plaintiff with standing is
needed. See Crawford, 472 F.3d at 951. Nonetheless, because one or more of the plaintiffs
with standing might drop out of this case before it is finally resolved, I will determine whether
all four of the LULAC plaintiffs have standing to seek injunctive relief under Section 2.
The defendants argue that the LULAC plaintiffs lack Article III standing and also lack
what is known as “statutory standing.” I will begin with Article III standing, which requires a
plaintiff to show that he or she has suffered an injury in fact that is fairly traceable to the
challenged acts of the defendant and that is likely to be redressed by a favorable judicial
decision. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). Each
element of standing must be supported in the same way as any other matter on which the
plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required
at the successive stages of the litigation. Id. at 561. We are at the trial stage of this case,
and so the elements of standing must be supported by the evidence adduced at trial. Id.
40
Case 2:12-cv-00185-LA Filed 04/29/14 Page 40 of 90 Document 127A. 199
The only element of Article III standing that is in dispute is whether the LULAC plaintiffs
have suffered an injury in fact. For this reason, I will not discuss the traceability or
redressability elements.
The LULAC plaintiffs contend that they have established standing in two ways. First,
they contend that they have standing to seek redress for their own injuries. Second, they
contend that they have “associational” standing, which allows an organizational plaintiff to
bring suit to redress an injury suffered by one or more of its members, even if the
organization itself has not been injured. See, e.g., Hunt v. Washington State Apple
Advertising Comm'n, 432 U.S. 333, 343 (1977).
Turning first to the question of whether the LULAC plaintiffs have suffered their own
injuries, I conclude that they have. It is well-established that an organization suffers a
cognizable injury in fact when it devotes resources, however minimal, to dealing with effects
of a law that are adverse to its interests. See, e.g., Havens Realty Corp. v. Coleman, 455
U.S. 363, 379 (1982); Crawford, 472 F.3d at 951. I find based on the evidence adduced at
trial that all four LULAC plaintiffs have devoted resources to dealing with the effects of Act
23 and would devote additional resources to dealing with those effects if the state-court
injunctions were lifted. Each plaintiff devoted resources to educating its members and
others whose interests it serves about the law and to helping individuals obtain qualifying
forms of photo ID, and each plaintiff would do so again if Act 23 were reinstated. Tr.
146–49, 185–88 (LULAC); Tr. 375, 386 (Cross Lutheran Church); Tr. 343–47, 357–58
(Milwaukee Area Labor Council); Tr. 489–92, 519–20 (Wisconsin League of Young Voters).
Accordingly, all four plaintiffs have standing to seek injunctive relief to redress their own
injuries.
41
Case 2:12-cv-00185-LA Filed 04/29/14 Page 41 of 90 Document 127A. 200
The defendants advance two reasons why the LULAC plaintiffs do not have standing
in their own right. First, relying on a case from the Fifth Circuit, the defendants point out that
not every diversion of resources establishes an injury in fact. See NAACP v. City of Kyle,
Texas, 626 F.3d 233, 238 (5th Cir. 2010). But Kyle does not suggest that the diversion of
resources demonstrated by the plaintiffs in this case fails to qualify as an injury in fact. The
resources found insufficient in that case were resources spent litigating the very claim at
issue in the suit. Id. at 238. In the present case, no plaintiff is claiming litigation expenses22
as an injury in fact. Rather, they point to resources expended on educating their members
and others about the requirements of Act 23 and on ensuring that those members and
others obtain forms of identification that would allow them to vote. This is precisely the kind
of expenditure of resources that the Seventh Circuit deemed sufficient to support standing
in Crawford, 472 F.3d at 951.
Second, the defendants contend that the LULAC plaintiffs lack standing because
they voluntarily spent resources in response to Act 23 and were not compelled to do so.
This argument, as another court has recognized, “finds no support in the law.” Florida State
Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1166 (11th Cir. 2008). If a voluntary
as opposed to compelled expenditure of resources were insufficient to confer standing, then
Crawford was wrongly decided, as Indiana’s photo-identification law did not “compel” the
The court also found that although the plaintiffs claimed to have spent resources22
on “prelitigation” activities, they failed to prove that they actually expended resources onsuch activities in response to the challenged law. Kyle, 626 F.3d at 238–39. The courtfound the plaintiffs had only “conjectured” that in the absence of the law they would havespent their resources elsewhere. Id. at 239. In the present case, I find that the LULACplaintiffs have shown concretely that but for Act 23, they would have spent their resourceselsewhere.
42
Case 2:12-cv-00185-LA Filed 04/29/14 Page 42 of 90 Document 127A. 201
Democratic Party to expend resources on getting its supporters to the polls. Crawford, 47223
F.3d at 951. The only support the defendants can find for their argument is a single
sentence in a Seventh Circuit opinion, which the defendants take out of context. The
sentence is “No one has standing to object to a statute that imposes duties on strangers.”
Freedom From Religion Foundation v. Obama, 641 F.3d 803, 805 (7th Cir. 2011). Taken
out of context, this sentence implies that a person lacks standing to challenge a statute
unless the statute imposes a legal duty on him or her, and that therefore a voluntary
expenditure of resources made in response to the effects of the statute would not qualify
as an injury in fact. But the law at issue in that case was a law requiring the President of the
United States to issue each year a proclamation designating the first Thursday in May as
a National Day of Prayer. Id. at 805. This law imposed no duties on anyone other than the
President, and in addition it could not have prompted the plaintiff or anyone other than the
President to expend any resources at all, voluntarily or not. Thus, placed in its proper
context, the sentence cited by the defendants stands for the simple proposition that a
person does not have standing to challenge a law that causes him or her no injury in fact.
It does not stand for the proposition that a voluntary expenditure of resources does not
qualify as an injury in fact.
Having found that the LULAC plaintiffs have standing to sue to redress their own
injuries, I need not decide whether they also have standing to sue on behalf of their
members. However, in the event that it becomes a relevant question on appeal, I will
I realize that the opinion in Crawford states that the Indiana law “compell[ed]” the23
Democratic Party to devote resources to getting its supporters to the polls, but it is obviousthat the opinion was not using “compelled” in the sense of “required by law.” The Indianalaw did not require the Democratic Party to do anything.
43
Case 2:12-cv-00185-LA Filed 04/29/14 Page 43 of 90 Document 127A. 202
determine whether the LULAC plaintiffs also have standing to sue on behalf of their
members. An association has standing to bring suit on behalf of its members when: (1) its
members would otherwise have standing to sue in their own right; (2) the interests it seeks
to protect are germane to the association's purpose; and (3) neither the claim asserted nor
the relief requested requires the participation of individual members in the lawsuit. Hunt, 432
U.S. at 343.
With respect to the first Hunt element, a member of one of the plaintiffs would have
standing in his or her own right if that member is suffering an injury in fact. The defendants
argue that the only way a member of the plaintiffs—that is, an individual voter—could be
suffering an injury as a result of Act 23 is if that member currently lacks an acceptable form
of photo ID and is unable to obtain an acceptable form of photo ID. However, the part of Act
23 that the plaintiffs challenge is the provision requiring a voter to present a photo ID at the
polls. It is the need to present such an ID that injures a voter and confers standing to sue.
See Common Cause/Georgia v. Billups, 554 F.3d 1340, 1351–52 (11th Cir. 2009) (holding
that “[r]equiring a registered voter either to produce photo identification to vote in person or
to cast an absentee or provisional ballot is an injury sufficient for standing”). This means
that even those members of the plaintiffs who currently possess an acceptable form of ID
have standing to sue. Id. at 1352 (“[T]he lack of an acceptable photo identification is not
necessary to challenge a statute that requires photo identification to vote in person.”).24
Thus, every member of the plaintiff organizations who is a Wisconsin voter has suffered an
injury in fact. As the defendants do not dispute that each plaintiff has members who intend
I also note that IDs expire, and so even if a person currently holds a valid ID, Act24
23 burdens that person with the obligation of keeping it valid.
44
Case 2:12-cv-00185-LA Filed 04/29/14 Page 44 of 90 Document 127A. 203
to vote in Wisconsin elections, I conclude that all four LULAC plaintiffs have members who
are injured by Act 23.
Moreover, even if the lack of an acceptable photo ID were a prerequisite to standing,
at least one of the LULAC plaintiffs, Cross Lutheran Church, has members who lack such
an ID. Weddle, an African American member of the Church, testified at trial that she
currently does not possess an acceptable form of photo identification. Tr. 35–36. I find her
testimony credible and conclude that she does not, in fact, possess an acceptable form of
photo identification. The defendants contend that Weddle could if she tried hard enough
obtain an acceptable form of identification, but this has no bearing on her standing to sue.
The premise of this lawsuit is that voters should not have to bear the burdens associated
with obtaining and presenting identification in order to vote. A plaintiff who must bear those
burdens in order to vote is necessarily injured by Act 23, whether or not he or she would be
successful in obtaining and presenting an ID. Accordingly, I find that Cross Lutheran Church
has members who have standing to challenge Act 23 on the ground that they lack
acceptable forms of ID. 25
The second Hunt element requires that the lawsuit be “germane” to the
organization’s purpose. I find that this lawsuit is germane to each LULAC plaintiff’s purpose.
LULAC’s mission is to “advance the economic condition, educational attainment, political
influence, housing, health, and civil rights of the Hispanic population of the United States.”
Tr. 158–59. It is hard to imagine a suit that is more germane to this mission than the present
A representative of Cross Lutheran Church testified that it has members besides25
Weddle who lack acceptable forms of identification. Tr. 373. From this testimony, Iconclude that Weddle is not the only member of the Church who lacks acceptableidentification.
45
Case 2:12-cv-00185-LA Filed 04/29/14 Page 45 of 90 Document 127A. 204
suit, which seeks to remove a barrier to minority participation in the political process and
thus advance the political influence of Hispanics. Cross Lutheran Church believes that God
requires it to fight for the civil rights of its members. Tr. 365–66, 377–78. Again, it is hard
to imagine a suit that is more germane to this purpose than the present suit. One of the
purposes of the Milwaukee Area Labor Council is “[t]o organize for social and economic
justice, to propose and support legislation that is beneficial to working families, and to
oppose legislation that harms working people.” Tr. 342–43. Again, the present suit is
germane to this purpose. Finally, this lawsuit is obviously germane to one of the purposes
of the League of Young Voters Education Fund, which is to encourage young people of
color to vote. Tr. 518.
The third Hunt element asks whether the claim asserted or the relief requested
requires the participation of the organization’s members in the lawsuit. I conclude that the
participation of members is not required. The claims were tried without substantial
participation by the plaintiffs’ members, and nothing about the relief requested—an
injunction—requires their participation. Accordingly, this element is satisfied.
Having concluded that the four LULAC plaintiffs have Article III standing, I turn to the
defendants’ remaining standing argument, which is that the plaintiffs lack “statutory
standing.” As I noted in a prior opinion, LULAC ECF No. 84, “statutory standing” is not a
matter of standing in the Article III sense but a question of substantive law. The question
is whether the statute under which the plaintiffs sue, here Section 2 of the Voting Rights Act,
authorizes the plaintiffs to sue. See Steel Co v. Citizens for a Better Environment, 523 U.S.
83, 92 (1998).
With respect to that question, Section 2 allows suits to be instituted by “aggrieved
46
Case 2:12-cv-00185-LA Filed 04/29/14 Page 46 of 90 Document 127A. 205
person[s].” See 42 U.S.C. § 1973a. The Supreme Court has determined that similar
language in Title VII of the Civil Rights Act of 1964 incorporates the “zone of interests” test.
Thompson v. North American Stainless, LP, __ U.S. __, 131 S.Ct. 863, 870 (2011). Under
this test, a plaintiff may not sue unless he falls within the zone of interests sought to be
protected by the statutory provision whose violation forms the legal basis for his complaint.
Id. at 870. The test denies a right to sue where “the plaintiff's interests are so marginally
related to or inconsistent with the purposes implicit in the statute that it cannot reasonably
be assumed that Congress intended to permit the suit.” Id. (quoting Clarke v. Sec. Indus.
Ass’n, 479 U.S. 388, 399–400 (1987)).
The defendants contend that only individuals seeking to enforce their right to vote
are within the zone of interests of Section 2, and that organizations seeking to protect the
voting rights of individuals are not within the zone of interests. I disagree. The word “person”
in an act of Congress is presumed to include organizations, see 1 U.S.C. § 1, and thus the
text of the statute does not suggest that a cause of action under Section 2 is limited to
individuals. Moreover, the Senate Report on the bill that added the “aggrieved persons”
language to the Voting Rights Act confirms that Congress intended to confer a right to sue
on organizations seeking to protect the voting rights of their members and others. See S.
Rep. No. 94-295, at 40 (1975), reprinted in 1975 U.S.C.C.A.N. 774, 806–07 (“An ‘aggrieved
person’ is any person injured by an act of discrimination. It may be an individual or an
organization representing the interests of injured persons.”). The evidence adduced at trial
establishes that all four LULAC plaintiffs are organizations representing the interests of
individuals whose voting rights are burdened by Act 23. Therefore, I find that all four LULAC
plaintiffs fall within the zone of interests of Section 2 and are aggrieved persons within the
47
Case 2:12-cv-00185-LA Filed 04/29/14 Page 47 of 90 Document 127A. 206
meaning of Section 2.
In support of their argument that the plaintiffs are not aggrieved persons, the
defendants cite Roberts v. Wamser, 883 F.2d 617, 621 (8th Cir. 1989), and various district
court cases that rely on Roberts. In Roberts, the Eighth Circuit held that “an unsuccessful26
candidate attempting to challenge election results does not have standing under the Voting
Rights Act.” 883 F.2d at 621. Neither this holding nor the reasoning that led to it supports
the defendants’ argument that organizations representing the interests of injured voters
cannot be aggrieved persons under Section 2. In fact, the Eighth Circuit implied that had
the plaintiff in Roberts been suing to protect the rights of other voters, he would have been
an aggrieved person. Id. (“Nor does Roberts allege that he is suing on behalf of persons
who are unable to protect their own rights.”). Accordingly, the defendants’ reliance on
Roberts and the district court cases decided in its wake is misplaced.
In sum, I find that all four LULAC plaintiffs have Article III standing in two ways: they
have standing to seek redress for their own injuries and also associational standing. I also
find that all four plaintiffs have statutory standing.
B. Merits
Section 2 of the Voting Rights Act prohibits states from imposing or applying “any
voting qualification or prerequisite to voting or standard, practice, or procedure” that “results
in a denial or abridgement of the right of any citizen of the United States to vote on account
of race or color.” 42 U.S.C. § 1973(a). To prove a Section 2 violation, a plaintiff does not
The defendants cite one district court case that does not rely on Roberts,26
Assa‘ad–Faltas v. South Carolina, 2012 WL 6103204 (D.S.C. Nov. 14, 2012), but as Icannot see any way in which that case supports the defendants’ argument, I will notdiscuss it further.
48
Case 2:12-cv-00185-LA Filed 04/29/14 Page 48 of 90 Document 127A. 207
need to prove discriminatory intent. See Chisom v. Roemer, 501 U.S. 380, 394 & n.21
(1991). Rather, a Section 2 violation is established “if, based on the totality of
circumstances, it is shown that the political processes leading to nomination or election in
the State or political subdivision are not equally open to participation by members of a class
of citizens protected by [§ 1973(a)] in that its members have less opportunity than other
members of the electorate to participate in the political process and to elect representatives
of their choice.” 42 U.S.C. § 1973(b). In the present case, the plaintiffs claim that the
requirement to show a photo ID is a voting practice that results in Blacks and Latinos having
less opportunity to participate in the political process and to elect representatives of their
choice.
Before going further, I must determine how to apply Section 2 in the context of a
challenge to a voting practice like the requirement to present a photo ID at the polls. Much
of the Section 2 jurisprudence was developed in the context of so-called “vote dilution”
cases. The term “vote dilution”—which is contrasted with the term “vote denial”—describes
cases involving structural devices, such as at-large elections and redistricting plans, that
can be used to minimize or cancel out the effect of minority votes. At-large elections can be
used to minimize or cancel out the effect of minority votes because they submerge a
minority group that would likely constitute a majority in a single-member district within a
larger white majority. Redistricting plans can be used to minimize or cancel out the effect
of minority votes because they scatter a minority voting bloc that would likely constitute a
majority in a properly drawn district among several irregular districts, with the result that the
minority voting bloc within any single district is too small to constitute a majority. The present
case does not involve at-large elections, redistricting plans, or similar structural devices, and
49
Case 2:12-cv-00185-LA Filed 04/29/14 Page 49 of 90 Document 127A. 208
the legal standards developed for dealing with those devices do not necessarily apply here.
For example, the so-called “Senate factors” or “Gingles factors,” see Thornburg v. Gingles,
478 U.S. 30 (1978), play a central role in vote-dilution cases. However, those factors were
developed to assist courts in resolving the tension between, on the one hand, ensuring that
structural practices such as at-large elections and redistricting plans are not used to dilute
minority voting power, and, on the other, the Congressional directive that Section 2 does
not require proportional representation. See Baird v. City of Indianapolis, 976 F.2d 357, 359
(7th Cir. 1992); Daniel P. Tokaji, The New Vote Denial: Where Election Reform Meets the
Voting Rights Act, 57 S.C. L. Rev. 689, 722 (2006). Factors developed for this purpose are
not necessarily relevant to cases, like this one, that do not present that tension, and in any
event the federal courts have largely disregarded the Senate factors in Section 2 cases that
do not involve challenges to at-large elections, redistricting plans, and the like. See Tokaji,
supra, at 720–21 (arguing that the Senate factors do not help courts decide cases that do
not involve vote dilution and observing that the lower courts have mostly disregarded those
factors in vote-denial cases). Thus, I cannot resolve the present issue by applying the legal
standards developed for vote-dilution cases.27
Although the vast majority of Section 2 cases involve vote dilution, appellate courts
have extensively discussed Section 2 in the context of felon disenfranchisement, which
does not involve vote dilution and falls into the category of “vote denial.” See, e.g.,
Farrakhan v. Gregoire, 623 F.3d 990 (9th Cir. 2010) (en banc); Simmons v. Galvin, 575
F.3d 24 (1st Cir. 2009); Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006) (en banc); Johnson
The defendants agree that the Senate factors are designed for vote-dilution cases27
and that they should not be applied in the present case. Defs.’ Post-Trial Br. at 48–50.
50
Case 2:12-cv-00185-LA Filed 04/29/14 Page 50 of 90 Document 127A. 209
v. Governor of Florida, 405 F.3d 1214 (11th Cir. 2005) (en banc). However, the consensus
that has emerged in those cases is that laws disenfranchising felons do not violate
Section 2 because those laws existed when the Voting Rights Act was enacted in 1965 and
the legislative history of the Act supports the conclusion that Congress did not intend to
invalidate them. See, e.g., Farrakhan, 623 F.3d at 993 (finding that “[f]elon
disenfranchisement laws have a long history in the United States,” and that “Congress was
no doubt aware of these laws when it enacted the VRA in 1965 and amended it in 1982, yet
gave no indication that felon disenfranchisement was in any way suspect”). This reasoning
obviously does not apply to voter photo identification requirements, which are a recent
phenomenon. See Kathleen M. Stoughton, A New Approach to Voter ID Challenges:
Section 2 of the Voting Rights Act, 81 Geo. Wash. L. Rev. 292, 296–98 (2013) (describing
history of voter ID legislation, which begins in the year 2000). Thus, the felon-
disenfranchisement cases are not helpful.
Because the cases contain only limited guidance, I will focus on the text of the28
statute. See Gonzalez v. City of Aurora, 535 F.3d 594, 597 (7th Cir. 2008) (emphasizing the
importance of considering the text of Section 2). The key language states that a violation
of Section 2 is established if the totality of the circumstances shows that the challenged
voting practice results in a political process that is not “equally open to participation by
members [of a minority group],” in that the members of that group “have less opportunity
than other members of the electorate to participate in the political process and to elect
There is one appellate case applying Section 2 in the photo ID context, Gonzalez28
v. Arizona, 677 F.3d 383 (9th Cir. 2012) (en banc). However, that case does not set out acomprehensive test governing Section 2 photo ID cases.
51
Case 2:12-cv-00185-LA Filed 04/29/14 Page 51 of 90 Document 127A. 210
representatives of their choice.” 42 U.S.C. § 1973(b). The meaning of this language is clear:
“Section 2 requires an electoral process ‘equally open’ to all, not a process that favors one
group over another.” Gonzalez, 535 F.3d at 598. Justice Scalia, in a dissent in a vote-
dilution case, provided the following illustration of the meaning of Section 2: "If, for example,
a county permitted voter registration for only three hours one day a week, and that made
it more difficult for blacks to register than whites, blacks would have less opportunity ‘to
participate in the political process’ than whites, and Section 2 would therefore be
violated . . . ." Chisom, 501 U.S. at 407–08 (Scalia, J., dissenting). Based on the text, then,
I conclude that Section 2 protects against a voting practice that creates a barrier to voting
that is more likely to appear in the path of a voter if that voter is a member of a minority
group than if he or she is not. The presence of a barrier that has this kind of
disproportionate impact prevents the political process from being “equally open” to all and
results in members of the minority group having “less opportunity” to participate in the
political process and to elect representatives of their choice.
The next question is whether the evidence adduced at trial shows that Wisconsin’s
photo ID requirement creates a barrier to voting that is more likely to appear in the path of
a voter if that voter is Black or Latino. The photo ID requirement applies to all voters,
regardless of race. However, as explained in Section II.B, above, the requirement places
a unique and heightened burden on those who must obtain an ID if they wish to continue
voting in Wisconsin. These individuals are more likely to be deterred from voting than those
who obtained their photo IDs for other reasons, such as driving. The evidence adduced at
trial demonstrates that this unique burden disproportionately impacts Black and Latino
voters. As the defendants concede, the plaintiffs’ evidence “shows that minorities are less
52
Case 2:12-cv-00185-LA Filed 04/29/14 Page 52 of 90 Document 127A. 211
likely than whites to currently possess qualifying ID.” Defs.’ Post-Trial Brief at 1. Because
the defendants concede that minorities are less likely than whites to currently possess a
photo ID, it is not necessary for me to discuss the evidence adduced at trial in support of
this point and make explicit findings of fact. Nonetheless, because the parties presented
substantial evidence on this question at trial and explicit findings might prove useful in the
event of an appeal, I will explain how the evidence adduced at trial leads to the conclusion
that, in Wisconsin, Blacks and Latinos are less likely than whites to possess a qualifying
form of photo identification.
Three of the plaintiffs’ expert witnesses offered testimony supporting the conclusion
that Blacks and Latinos in Wisconsin are less likely than whites to possess a qualifying ID.
First, the plaintiffs presented the testimony of Leland Beatty. As discussed in more detail
in Appendices A and C, Beatty compared a list of Wisconsin registered voters to a list of29
individuals holding a Wisconsin driver’s license or state ID card and attempted to determine
how many registered voters could be matched to a corresponding driver’s license or state
ID card. Then, using the assistance of a third party, Beatty determined the likely race of the
Wisconsin registered voters who could not be matched to a driver’s license or state ID card
and computed the percentage of registered voters of each race who lacked such forms of
ID. After performing this analysis, Beatty concluded that minority registered voters in
Wisconsin “were substantially more likely to be without a matching driver’s license or state
ID than white voters.” Tr. 645. Specifically, he found that data for the year 2012 showed that
Appendix A discusses Beatty’s methodology and findings insofar as they bear on29
the question of the number of Wisconsin voters who lack an ID. Appendix C discussesBeatty’s methodology and findings insofar as they bear on the question of whether thevoters who lack an ID are disproportionately Black and Latino.
53
Case 2:12-cv-00185-LA Filed 04/29/14 Page 53 of 90 Document 127A. 212
African American voters in Wisconsin were 1.7 times as likely as white voters to lack a
matching driver’s license or state ID and that Latino voters in Wisconsin were 2.6 times as
likely as white voters to lack these forms of identification. Tr. 646–47, 658; LULAC Ex. 2.
He also found that data for the year 2013 showed that African American voters in Wisconsin
were 1.4 times as likely as white voters to lack a matching driver’s license or state ID and
that Latino voters were 2.3 times as likely as white voters to lack these forms of
identification. Tr. 686; LULAC Ex. 817 ¶¶ 4, 9. I consider Beatty’s findings and opinions
credible and have given them significant weight in making my findings of fact.
Before moving on, I note that Professor Hood performed a matching analysis that
was similar to Beatty’s, except that he did not attempt to identify the race of the registered
voters who did not possess an ID. As discussed in more detail in Appendix A, under some
of Hood’s criteria for determining whether a given registered voter could be matched to an
ID, Hood found that the number of registered voters who could not be matched was smaller
than the number found by Beatty: Beatty found that about 317,000 registered voters lacked
an ID, while under the loosest of Hood’s criteria only about 167,000 registered voters lacked
an ID. For the reasons explained in Appendix A, I find Beatty’s number more reliable than
Hood’s. But it is worth noting that when Beatty analyzed the racial breakdown of the voters
Hood deemed to be without IDs, he found that the disproportionate impact on Blacks and
Latinos was even greater: using Hood’s numbers, Beatty found that both Blacks and Latinos
were more than twice as likely as whites to lack driver’s licenses or state ID cards. Tr.
682–84.
Next, the plaintiffs presented the testimony of Professor Barreto. Like Beatty, Barreto
offered opinions on the existence of racial disparities in the possession of photo
54
Case 2:12-cv-00185-LA Filed 04/29/14 Page 54 of 90 Document 127A. 213
identification. However, the scope of Barreto’s opinions differ from Beatty’s in three ways.
First, while Beatty examined ID possession by individuals who are registered to vote,
Barreto examined ID possession by individuals who are eligible to vote. Second, while
Beatty examined statewide possession rates, Barreto focused on Milwaukee County. Third,
while Beatty focused on possession of driver’s licenses and state ID cards, Barreto
investigated possession rates of all forms of Act 23-qualifying ID.
As indicated in Section II.B and Appendix B, Barreto’s opinions were based on a
telephonic survey of Milwaukee County residents. The results of the survey showed that a
sizable portion of the population of eligible voters in Milwaukee County do not possess
either a qualifying form of ID or the documents needed to obtain a qualifying form of ID.
Frank Ex. 600 at 16–17. Moreover, the results showed that Black and Latino eligible voters
are less likely than white voters to possess a qualifying form of ID. Specifically, Barreto
found that while only 7.3% of eligible white voters lack a qualifying form of ID, 13.2% of
eligible African American voters and 14.9% of eligible Latino voters lack a qualifying form
of ID. Tr. 304.
The defendants offer several reasons why I should give Barreto’s findings limited
weight. I have already discussed these reasons somewhat in Appendix B, in the context of
determining the number of Wisconsin voters who lack IDs and the burdens they will face.
Here I will discuss these reasons in the context of determining whether those who lack
qualifying IDs are disproportionately likely to be Black or Latino.
First, the defendants contend that Barreto’s findings are outdated. The survey was
conducted in January of 2012, and the trial of this matter was held in November of 2013.
The defendants note that between the time of the survey and the time of trial, Wisconsin’s
55
Case 2:12-cv-00185-LA Filed 04/29/14 Page 55 of 90 Document 127A. 214
free ID program was in effect, that a significant number of people obtained IDs through this
program during that time, and that a disproportionate share of free IDs were issued to Black
and Latino voters. Thus, argue the defendants, it is possible that the free ID program
mitigated somewhat the disparity in possession rates by the time of trial. I agree that this
is possible. But the defendants do not suggest that the free ID program eliminated the
disparity in possession rates identified in Barreto’s survey. Moreover, at the time of
Barreto’s survey, the free ID program had been in effect for six months, and thus to some30
extent the survey results do account for the issuance of free IDs. Finally, it would be
speculative to conclude that those who obtained free IDs since the time of Barreto’s survey
are individuals who previously lacked a qualifying form of ID. Many of the free IDs could
have been issued as replacement IDs to individuals who already possessed IDs at the time
of Barreto’s survey, or as duplicate IDs to individuals who already possessed another form
of ID at the time of the survey, such as a driver’s license. And looking at the number of31
free IDs issued in isolation fails to take into account possible changes in the population of
eligible voters: perhaps there has been an increase in the population of eligible voters, and
although many new voters have obtained free IDs, many others have not obtained any form
of ID. The defendants’ own expert witness agreed that it would be speculative to draw
conclusions about the disparity in possession rates based on the issuance of free IDs alone.
The free ID program began in July 2011, Tr. 1806, and Barreto’s survey was30
conducted between December 2011 and January 2012.
As discussed in Appendix B, although the DMV is not supposed to issue state ID31
cards to individuals who already possess a valid driver’s license, the data that the DMVprovided to Beatty and Hood reflects that the DMV has issued many individuals both adriver’s license and a state ID card. See also Tr. 739.
56
Case 2:12-cv-00185-LA Filed 04/29/14 Page 56 of 90 Document 127A. 215
Tr. 1559–61. Finally, Beatty updated his matching analysis just prior to trial, and he found
that racial disparities in possession rates persist. Thus, despite the age of Barreto’s survey,
I remain convinced that his results support the conclusion that Blacks and Latinos are less
likely than whites to possess qualifying forms of ID.
The defendants also point out that Barreto studied possession rates in Milwaukee
County rather than statewide, and that therefore his findings do not prove that the
disparities he found exist at the state level. This is a fair point, but it is weakened by the fact
that Beatty studied statewide possession rates and found that the disparities Barreto
identified in Milwaukee County do exist at the state level. Moreover, Milwaukee is the largest
county in the state and has the state’s largest populations of Blacks and Latinos, and thus
findings based on a study of Milwaukee County alone are suggestive of what a statewide
study would find. Tr. 284–85, 1517–20. Finally, there is no reason to think that in other parts
of the state minorities possess IDs at such high rates and whites possess IDs at such low
rates that the disparities found in Milwaukee County would be cancelled out if individuals
from outside of Milwaukee were included in the study. To the contrary, a study of voting-age
adults in Wisconsin published in 2005 found that Blacks and Latinos residing outside of
Milwaukee County were less likely than whites to possess a valid driver’s license. See John
Pawasarat, The Drivers License Status of the Voting Age Population in Wisconsin, p. 22
(UW-Milwaukee Employment and Training Institute, June 2005); LULAC Ex. 58.32
This study reported that in Milwaukee County, 73% of white adults, 47% of Black32
adults, and 43% of Hispanic adults possessed valid driver’s licenses. The study reportedthat in the balance of the state, 85% of white adults, 53% of Black adults, and 52% ofHispanic adults possessed valid driver’s licenses.
57
Case 2:12-cv-00185-LA Filed 04/29/14 Page 57 of 90 Document 127A. 216
Accordingly, I conclude that Barreto’s findings, when added to the other evidence in this
case, support the conclusion that minorities in Wisconsin are less likely than whites to
possess a qualifying ID.
The remaining expert witness who offered testimony on the disparity in ID
possession rates among minorities and white voters is Professor Burden. He identified a
consensus in the literature showing that Black and Latino voters in Wisconsin and
elsewhere in the United States are less likely than white voters to possess photo IDs. Tr.
1329–34. Burden cited the following studies: (1) a study performed by Professor Barreto
and others showing that minorities in Indiana were less likely than whites to possess photo
IDs, see Matt A. Barreto, et al., The Disproportionate Impact of Voter-ID Requirements on
the Electorate—New Evidence from Indiana, 42 PS: Political Science & Politics 111 (2009);
(2) an article coauthored by the defendants’ expert witness, Professor Hood, which found
that Blacks and Latinos in Georgia were less likely than whites to have driver’s licenses, see
M.V. Hood III & Charles S. Bullock III, Worth a Thousand Words? An Analysis of Georgia’s
Voter Identification Statute, 36 Am. Politics Research 555 (2008) (Def. Ex. 1005); (3) a
study by the American Automobile Association showing that, in the United States, 18-year-
old whites are significantly more likely than 18-year-old Blacks and Latinos to have driver’s
licenses, see AAA Foundation for Traffic Safety, Timing of Driver’s License Acquisition and
Reasons for Delay among Young People in the United States, 2012, at 11, table 3 (August
2013), available at www.aaafoundation.org/research/completed-projects (last viewed April
28, 2014); and (4) the study by Pawasarat, discussed above, finding that in 2005 Black and
Latino adults in Wisconsin were much more likely than white adults to lack valid driver’s
licenses, LULAC Ex. 58. Burden’s testimony and the literature he cites reinforce the
58
Case 2:12-cv-00185-LA Filed 04/29/14 Page 58 of 90 Document 127A. 217
conclusion that Black and Latino voters in Wisconsin are more likely than white voters to
lack qualifying IDs.
The defendants have pointed to no evidence introduced at trial or studies performed
by others showing that Blacks and Latinos in Wisconsin or elsewhere possess IDs at the
same or nearly the same rates as whites. To the contrary, as noted, they concede that
“minorities are less likely than whites to currently possess qualifying ID.” Defs.’ Post-Trial
Br. at 1. Thus, in light of the evidence presented at trial and the defendants’ admission, the
conclusion that Blacks and Latinos disproportionately lack IDs is inescapable. 33
Although the defendants concede that Blacks and Latinos disproportionately lack
IDs, they argue that the plaintiffs have not shown that Blacks and Latinos are incapable of
obtaining qualifying IDs. This argument depends on the premise that a violation of Section
2 cannot be found unless the challenged voting practice makes it impossible for affected
minorities to vote. As defense counsel argued in his closing:
Even if the Court accepts all of the plaintiffs' expert testimony anddeclarations in this case regarding statistics and data and estimates, plaintiffshave not shown that those Wisconsin voters who currently lack a form of Act
The defendants contend that some of the evidence at trial shows that there is a33
“trend toward greater driver license and state ID possession rates for minorities.” Defs.’Post-Trial Br. at 39. Primarily, they rely on Beatty’s findings, which show that, in 2013, thepossession rates for Blacks and Latinos were higher than they were in 2012. However, asBeatty explained, one cannot infer that a trend exists from only two data points. Tr. 689.Moreover, Beatty had more complete data in 2013 than he did in 2012, and this mightexplain the difference in possession rates. Tr. 689–90. In any event, even if there were atrend showing improvements in possession of qualifying IDs by minorities, this would haveno legal significance. The most a trend would show is that it is possible that at some pointin the future Act 23 would not have a disproportionate impact on minorities. But I mustgrant or deny relief based on the conditions that were shown to exist at the time of trial, noton conditions that may or may not exist at some unknown point in the future. Thus, thequestion of whether there is a trend toward greater minority possession rates is irrelevant.
59
Case 2:12-cv-00185-LA Filed 04/29/14 Page 59 of 90 Document 127A. 218
23 ID can never, ever obtain a form of Act 23 ID . . . . It is not enough to showthat minorities are less likely to have a form of Act 23 ID when those votersare fully capable of getting a form of Act 23 ID.
Tr. 2134, 2142. Under the defendants’s view of the law, the example given by Justice Scalia
in Chisom—a county’s permitting voting registration for only three hours one day a week
and thereby making it more difficult for Blacks to register than whites—would not involve a
violation of Section 2, since it would of course be possible for every Black person in the
county to register during the one three-hour window per week. However, no authority
supports the defendants’ view of the law. The cases the defendants cite state that “a bare
statistical showing” of disproportionate impact is not enough to prove a Section 2 violation.
See Tr. 2134–35, citing Smith v. Salt River Project Ag. Improvement & Power Dist., 109
F.3d 586, 595 (9th Cir. 1997). But what these cases mean is that beyond showing a
disproportionate impact on minorities, a Section 2 plaintiff must show that the
disproportionate impact is tied in some way to the effects of discrimination. There is nothing
in these cases indicating that a Section 2 plaintiff must show that the challenged voting
practice makes it impossible for minorities to vote or that minorities are incapable of
complying with the challenged voting procedure. Therefore, I reject the defendants’
argument that Act 23 could violate Section 2 only if minorities who currently lack IDs are
incapable of obtaining them. 34
The defendants also argue that the plaintiffs’ have not shown that minorities “face
Of course, some minorities who lack IDs will find it impossible to obtain them.34
Several African American witnesses testified at trial about their unsuccessful attempts toobtain IDs. See Tr. 36–38 (Weddle); 43–52 (Holloway); 88 (Davis); 210–12 (Brown);704–05 (Thompson); 844–47 (Newcomb).
60
Case 2:12-cv-00185-LA Filed 04/29/14 Page 60 of 90 Document 127A. 219
different considerations than whites in obtaining qualifying ID.” Defs.’ Post-Trial Br. at 1–2.
In making this argument, the defendants imply that the burden of having to obtain an ID is
not, by itself, a burden that could result in the denial or abridgment of the right to vote, and
that the plaintiffs must point to some more serious burden that disproportionately impacts
Black and Latino voters before they could establish a violation of Section 2. I disagree. Even
if the burden of obtaining a qualifying ID proves to be minimal for the vast majority of Blacks
and Latinos who will need to obtain one in order to vote, that burden will still deter a large
number of such Blacks and Latinos from voting. As discussed in Section II.C, the plaintiffs’
expert witnesses testified that, under the dominant framework used by scholars to study
voter turnout, even small increases in the costs of voting can deter a person from voting,
since the benefits of voting are slight and can be elusive. Tr. 1279–80, 1220–21. Under this
framework, the need to obtain an ID is likely to deter a substantial number of individuals
who lack IDs from voting, even if most of these individuals could obtain an ID without much
trouble. These individuals, who prior to Act 23 were unwilling to pay the costs necessary to
obtain an ID, are unlikely to pay those costs in order to comply with Act 23 when the
expected benefits of voting are slight. Act 23 thus creates a political process in which white
voters, who are more likely to already possess qualifying IDs than Black and Latino voters,
will not face the deterrent effect of having to obtain an ID that they would not obtain but for
the requirement to present it at the polls, while Blacks and Latinos who wish to vote and
who lack qualifying IDs must pay the cost, in the form of time or bother or out-of-pocket
expense, to obtain what is essentially a license to vote. This is not a political process that
is “equally open to participation” by Blacks and Latinos. 42 U.S.C. § 1973(b). It is one in
which a disproportionate share of the Black and Latino populations must shoulder an
61
Case 2:12-cv-00185-LA Filed 04/29/14 Page 61 of 90 Document 127A. 220
additional burden in order to exercise the right to vote.
But even if the defendants were correct that the plaintiffs needed to show that Blacks
and Latinos face different considerations than whites in obtaining qualifying IDs, the
plaintiffs would still have shown that Act 23 violates Section 2. There are additional hurdles
that Blacks and Latinos who lack IDs are more likely to have to overcome than whites who
lack them. First, as Professor Barreto’s survey indicates, Black and Latino voters who lack
a qualifying ID are more likely than white voters to also lack one or more of the underlying
documents they would need to obtain a qualifying ID as a first-time applicant. In Milwaukee
County, only 2.4% of white eligible voters lack both a qualifying ID and one or more of the
underlying documents needed to obtain an ID, while 4.5% of Black and 5.9% of Latino
eligible voters lack both an ID and at least one underlying document. Frank Ex. 600 at35
23–24; Tr. 307–08. The defendants note that Barreto did not determine whether it would
be impossible for those who lack both an ID and an underlying document to obtain the
underlying document, but this misses the point. The point is that Barreto’s survey shows
that even among the pool of white and minority voters who lack IDs, Black and Latino voters
are more disadvantaged than whites because they are more likely to have to overcome two
hurdles in order to vote rather than one. First, they will have to obtain the missing underlying
document, which will likely involve some time (such as a trip to the office of vital records)
and expense (such as the fee for obtaining a birth certificate). Then, they will have to obtain
Professor Barreto determined that the difference between whites and Blacks, and35
the difference between whites and Latinos, are statistically significant. Frank Ex. 600 at 23.This means that the differences identified in the survey are likely to be real and not merelythe result of chance. Tr. 304–05.
62
Case 2:12-cv-00185-LA Filed 04/29/14 Page 62 of 90 Document 127A. 221
state ID cards, which will involve the time and expense of going to the DMV. The need to
overcome two hurdles instead of one makes the burden more substantial for a
disproportionate share of Blacks and Latinos.
Another reason why it will be more difficult for many Blacks and Latinos to obtain IDs
is that Blacks and Latinos are more likely to have been born outside of Wisconsin than
whites. Professor Burden identified survey results showing that for the 5-year period ending
in 2011, 75% of white residents were born in Wisconsin, yet only 59% of Blacks and 43%
of Latino residents were born in the state. LULAC Ex. 811 ¶ 60. As discussed in Section
II.B, it generally takes more time and expense to obtain a birth certificate from outside one’s
state of residence than it does to obtain a birth certificate from within the state. See also id.
Therefore, Blacks and Latinos who need to obtain a birth certificate are likely to find
themselves facing a more daunting task than their white counterparts. Moreover, Latino36
voters who speak primarily Spanish will face additional difficulties as they try to navigate a
process that was designed to accommodate those who speak English. See Tr. 171 (witness
testified that she did not see Spanish forms at DMV and could not get help from bilingual
personnel); Tr. 133 (witness testified that she has worked with Latinos who encountered
language barriers at the DMV).37
Many older voters of color face the additional problem of never having had an36
official birth certificate in the first place. As late as 1950, nearly a quarter of nonwhite birthsin rural areas in the United States went unregistered, as opposed to 10% of white birthsin rural areas in the United States. S. Shapiro, Development of Birth Registration and BirthStatistics in the United States, 4:1 Populations Studies: A Journal of Demography 86,98–99 (1950), available at ECF No. 37-13 in Case No. 12-C-185.
Many Latino voters who were born in Puerto Rico will have trouble obtaining their37
birth certificates because the Puerto Rican government annulled all birth certificates ofindividuals born there prior to 2010. To obtain a new birth certificate, a person must either
63
Case 2:12-cv-00185-LA Filed 04/29/14 Page 63 of 90 Document 127A. 222
Up to this point, I have only discussed the evidence establishing that Act 23 has a
disproportionate impact on Blacks and Latinos. But courts have stated that, to succeed on
a Section 2 claim, a plaintiff must do more than establish that the challenged voting practice
results in a disproportionate impact. See, e.g., Smith v. Salt River Project, 109 F.3d 586,
595 (9th Cir. 1997) (noting that “a bare statistical showing of disproportionate impact on a
racial minority” does not, by itself, prove a violation of § 2). Rather, the plaintiff must also
show that the challenged voting practice produces a “discriminatory result.” Id. What this
seems to mean is that the plaintiff must show that the disproportionate impact results from
the interaction of the voting practice with the effects of past or present discrimination and
is not merely a product of chance. See Gingles, 478 U.S. at 47 (“The essence of a § 2 claim
is that a certain electoral law, practice, or structure interacts with social and historical
conditions to cause an inequality in the opportunities enjoyed by black and white voters to
elect their preferred representatives.”).
I find that the plaintiffs have shown that the disproportionate impact of the photo ID
requirement results from the interaction of the requirement with the effects of past or
present discrimination. Blacks and Latinos in Wisconsin are disproportionately likely to live
in poverty. Individuals who live in poverty are less likely to drive or participate in other38
travel to Puerto Rico or pay a “hefty charge” to obtain a new birth certificate by mail. Tr.131. Professor Barreto found that 16.7% of eligible Latinos in Milwaukee County were bornin Puerto Rico and that 38.4% of those born in Puerto Rico had yet to obtain a new birthcertificate. Frank Ex. 600 at 25.
Tr. 1193–95 (Black median household income in Metropolitan Milwaukee is 42%38
that of whites; this disparity is the second worst out of the 40 largest metropolitan areas;Hispanic median household income is 56% that of whites; this disparity is ninth from thebottom out of the 36 largest metropolitan areas); Tr. 1196–97 (in Metropolitan Milwaukee,Black poverty rate is 39%, Hispanic poverty rate 30%, and white poverty rate is 8%;disparity between Blacks and whites is the largest of 40 largest metropolitan areas;
64
Case 2:12-cv-00185-LA Filed 04/29/14 Page 64 of 90 Document 127A. 223
activities for which a photo ID may be required (such as banking, air travel, and international
travel), and so they obtain fewer benefits from possession of a photo ID than do39
individuals who can afford to participate in these activities. In addition, as explained in
Section II.B, low-income individuals who would like to obtain an ID generally find it harder
to do so than do those with greater resources. Cf. Texas v. Holder, 888 F. Supp. 2d 113,
138 (D.D.C. 2012) (finding that “the burdens associated with obtaining an ID will weigh most
heavily on the poor”), vacated on other grounds, 133 S. Ct. 2886 (2013). Thus, we find that
Blacks and Latinos are less likely than whites to obtain a photo ID in the ordinary course of
their lives and are more likely to be without one.
The reason Blacks and Latinos are disproportionately likely to live in poverty, and
therefore to lack a qualifying ID, is because they have suffered from, and continue to suffer
from, the effects of discrimination. At trial, Professor Levine of the University of Wisconsin-
Milwaukee testified that residential segregation and housing discrimination are major
causes of the socioeconomic disparities between whites and minorities in Wisconsin. By
certain measures, Milwaukee ranks the worst of the 102 largest metropolitan areas in
Black/white segregation and the ninth worst in Latino/white segregation. Tr. 1201–02. This
disparity between Hispanics and whites is the seventh largest out of 36 metropolitanareas); Tr. 1263–64 (poverty rate for Blacks is 39.2% in Metropolitan Milwaukee and 38.8%statewide); see also LULAC Ex. 811 ¶ 30 (Professor Burden explains that the poverty ratein Wisconsin is 11% for Whites, 38% for Latinos, and 39% for Blacks, and that theLatino-White and Black-White gaps are both greater than the national average).
Tr. 1302 (Professor Burden explained that “being in an inner-city core and having39
somewhat lower levels of socioeconomic status, blacks and Latinos in Wisconsin are morelikely to use public transportation or to walk as a means to get around the city. That meansthey're less likely to own a vehicle, less likely to drive, less likely to own a driver's license.”);see also supra note 9.
65
Case 2:12-cv-00185-LA Filed 04/29/14 Page 65 of 90 Document 127A. 224
level of segregation is, as Levine testified, “the cornerstone from which all of these other
socioeconomic disparities flow.” Tr. 1202–03. It prevents Black and Latino populations in
central Milwaukee from accessing suburban employment opportunities. Tr. 1203. And there
is a robust correlation between metropolitan areas that have high levels of segregation and
low levels of Black male employment. Tr. 1208. Levine also testified that contemporary
segregation can be traced in part to Milwaukee’s history of housing discrimination. Tr.
1204–06.
The socioeconomic disparities between whites and minorities in Wisconsin are also
traceable to the effects of discrimination in employment. Levine described one study of the
Milwaukee labor market, conducted in the early 2000s, which showed that white job
applicants received call-back interviews more than twice as frequently as Black applicants,
and that even white applicants with criminal records received call-back interviews more
frequently than Black applicants. Tr. 1211–13. Levine concluded that this study showed that
“discrimination was alive and well in the Milwaukee labor market.” Tr. 1212. Levine testified
that racial disparities in education also contribute to the lower socioeconomic status of
Blacks and Latinos in Wisconsin, and that these disparities are likewise a product of
discrimination. Tr. 1214–16.
Professor Levine summarized his findings concerning the effects of discrimination
on the socioeconomic status of Blacks and Latinos in Wisconsin as follows:
There’s little question that across the gamut of indicators that I’velooked at that Milwaukee, and to the extent that I have indicators onWisconsin, reveal the sharpest, most pervasive, most persistent, and mostentrenched racial and ethnic socioeconomic disparities of virtually any regionof the country.
Across these indicators, in indicator after indicator, be it poverty, be it
66
Case 2:12-cv-00185-LA Filed 04/29/14 Page 66 of 90 Document 127A. 225
income, be it employment, be it minority business ownership, be it educationalachievement, be it incarceration rates, the Black community and the Hispaniccommunity in Wisconsin exhibit, without question, the effects of the historicallegacy of discrimination as well as contemporary practices of discrimination.
Tr. 1217. Similar testimony from Professor Burden, see Tr. 1298–1314, lends further40
support to the conclusion that the reason Blacks and Latinos are disproportionately likely
to lack an ID is because they are disproportionately likely to live in poverty, which in turn is
traceable to the effects of discrimination in areas such as education, employment, and
housing. Based on this evidence, I conclude that Act 23's disproportionate impact results
from the interaction of the photo ID requirement with the effects of past and present
discrimination and is not merely a product of chance. Act 23 therefore produces a
discriminatory result.
A remaining question is whether Section 2 requires or allows me to take the state’s
interest in the challenged voting practice into account. There is nothing in the text of
Section 2 indicating that the state’s interest is relevant, but one of the “unenumerated”
Senate factors—whether the policy underlying the challenged voting practice is
“tenuous”—suggests that it is. See Gingles, 478 U.S. at 37. Moreover, it seems reasonable
to understand Section 2 as allowing a state to maintain a voting practice despite any
discriminatory result it produces if the practice is clearly necessary to protect an important
state interest. However, as discussed in Section II.A., Act 23 only weakly serves the state
Although many of Levine’s findings were derived from evidence concerning40
Metropolitan Milwaukee rather than Wisconsin, he noted that 72% of Wisconsin’s Blackpopulation and 45% if its Latino population live in Metropolitan Milwaukee. He concludedthat, given this concentration of minorities in the Milwaukee area, any trends that apply toMetropolitan Milwaukee “essentially become statewide trends.” Tr. 1263.
67
Case 2:12-cv-00185-LA Filed 04/29/14 Page 67 of 90 Document 127A. 226
interests put forward by the defendants. Accordingly, I conclude that those interests are
tenuous and do not justify the photo ID requirement’s discriminatory result.
To summarize my findings of fact and conclusions of law regarding the plaintiffs’
Section 2 claim: Act 23 has a disproportionate impact on Black and Latino voters because
it is more likely to burden those voters with the costs of obtaining a photo ID that they would
not otherwise obtain. This burden is significant not only because it is likely to deter Blacks
and Latinos from voting even if they could obtain IDs without much difficulty, but also
because Blacks and Latinos are more likely than whites to have difficulty obtaining IDs. This
disproportionate impact is a “discriminatory result” because the reason Black and Latino
voters are more likely to have to incur the costs of obtaining IDs is that they are
disproportionately likely to live in poverty, and the reason Black and Latino voters are
disproportionately likely to live in poverty is connected to the history of discrimination against
Blacks and Latinos in Wisconsin and elsewhere. Finally, Act 23 only tenuously serves the
state’s interest in preventing voter fraud and protecting the integrity of the electoral process,
and therefore the state’s interests do not justify the discriminatory result. Accordingly, the
photo ID requirement results in the denial or abridgment of the right of Black and Latino
citizens to vote on account of race or color.
A remaining matter is to identify the appropriate remedy. The plaintiffs request a41
permanent injunction against enforcement of the photo ID requirement, and the defendants
have not argued that this is not a proper remedy. Moreover, such an injunction is the only
Although I have already granted the Frank plaintiffs a permanent injunction on the41
ground that Act 23 places an unjustified burden on the right to vote, I separately considerwhether I would grant the same remedy under Section 2.
68
Case 2:12-cv-00185-LA Filed 04/29/14 Page 68 of 90 Document 127A. 227
practicable remedy—surely it would make little sense to allow Blacks and Latinos to vote
without showing IDs while continuing to require white voters to show IDs. Thus, I will enjoin
the defendants from requiring voters to present photo IDs in order to cast a ballot.
The LULAC plaintiffs point out that the Wisconsin legislature might amend the photo
ID provisions of Act 23 in response to this decision. They ask me to make clear that I will
schedule expedited proceedings to address any claim that an amendment to Act 23 has
cured the defects identified in this opinion and provides grounds for relief from the
permanent injunction. I will do so. Should the State of Wisconsin enact legislation amending
the photo ID requirement, and should the defendants believe that, as amended, the photo
ID requirement no longer violates Section 2, they may file a motion for relief from the
permanent injunction. If an election is imminent at the time that the defendants file their
motion, I will schedule expedited proceedings on the motion. However, I also note that,
given the evidence presented at trial showing that Blacks and Latinos are more likely than
whites to lack an ID, it is difficult to see how an amendment to the photo ID requirement
could remove its disproportionate racial impact and discriminatory result.
IV. Other Matters
There are two remaining procedural matters to consider. The first is the Frank
plaintiffs’ motion for class certification and the second is the defendants’ motion to dismiss
the claims of certain plaintiffs. Given that the relief granted in this case is a permanent
injunction against enforcement of the requirement that eligible voters present a photo ID to
cast a ballot, these matters are moot. The motion for class certification is moot because,
as the defendants concede, all members of the proposed classes will benefit from the
permanent injunction whether or not classes are certified, and there is no reason to formally
69
Case 2:12-cv-00185-LA Filed 04/29/14 Page 69 of 90 Document 127A. 228
certify a class. Defs.’ Br. in Opp. to Mot. For Class Cert. at 8, 20 (arguing that if Act 23 were
enjoined there would be “no need for any classes as the remedy would invalidate the entire
photo identification requirement and cover all of the citizens and registered voters in the
State of Wisconsin”). Similarly, the motion to dismiss the claims of certain plaintiffs is
moot—those plaintiffs will benefit from the relief requested regardless of whether they are
dismissed as plaintiffs. Cf. Crawford, 472 F.3d at 951 (noting that as long as one plaintiff
has standing to seek the injunctive relief requested, question of standing of additional
parties can be ignored).
V. Conclusion
For the reasons stated, IT IS ORDERED that the named Defendants and
Defendants’ officers, agents, servants, employees, and attorneys, and all those acting in
concert or participation with them, or having actual or implicit knowledge of this Order by
personal service or otherwise, are hereby permanently enjoined from conditioning a
person’s access to a ballot, either in-person or absentee, on that person’s presenting a form
of photo identification.
IT IS FURTHER ORDERED that the Frank plaintiffs’ motion for class certification is
DENIED as MOOT.
IT IS FURTHER ORDERED that the defendants’ motion for judgment on partial
findings is DENIED as MOOT.
FINALLY, IT IS ORDERED that the Clerk of Court shall enter final judgment
consistent with this opinion.
70
Case 2:12-cv-00185-LA Filed 04/29/14 Page 70 of 90 Document 127A. 229
Dated at Milwaukee, Wisconsin, this 29 day of April 2014.th
s/ Lynn Adelman_______________________LYNN ADELMANDistrict Judge
71
Case 2:12-cv-00185-LA Filed 04/29/14 Page 71 of 90 Document 127A. 230
Appendix A: Wisconsin Voters Who Lack A Qualifying ID
I base my finding that approximately 300,000 registered voters in Wisconsin lack a
qualifying ID primarily, but not exclusively, on the testimony of plaintiffs’ expert, Leland
Beatty. Beatty is a statistical marketing consultant with extensive experience both in
business and politics. He sought to determine the number of registered voters who, as of
September 2013, did not possess either a driver’s license or state ID card, which matched
the information maintained in the list of registered voters. Drivers’ licenses and state ID
cards are the two most common forms of Act-23 identification. To do this, Beatty obtained1
databases from both the DMV and GAB. The DMV database contained information about
individuals with driver’s licenses or state ID cards with expiration dates in September 2013
or later. The GAB database contained information about individuals who were registered
to vote as of September 2013. Beatty compared the information in the databases to
determine how many registered voters could be “matched” to a DMV product.
Initially, Beatty created three definitions of a “match.” First, he counted a pair of
entries as a match if a person having the same first name, last name, date of birth,
residence county and zip code could be found in both the GAB and DMV databases.
Second, he counted a pair of entries as a match if a person having the same first name, last
name and date of birth could be found in both databases. Third, he counted a pair of entries
as a match if a person having the same last name, date of birth and zip code could be
found in both databases. This latter definition of a match was designed to account for
Previous to the trial, Beatty prepared reports based on pre-September 2013 data.1
I will focus, however, on the results Beatty obtained from the September 2013 data, assuch data best reflects the facts that existed at the time of trial.
72
Case 2:12-cv-00185-LA Filed 04/29/14 Page 72 of 90 Document 127A. 231
individuals who were identified by a nickname in one database and their formal first name
in the other.
After running these matches, Beatty attempted to “recover” or “reclaim” some of the
non-matches by determining whether circumstances justified deeming them a match. First,
he attempted to match people with multiple-word first or last names such as individuals with
names like Mary Ann or Maryann or those with hyphenated last names. Beatty isolated the
records of individuals with multi-word names and accepted a pair of entries as a match if
either word in the multi-word name matched. Second, he attempted to match individuals
who may have recently changed their last name as indicated by a field in the DMV
database. He did this by treating any person listed in the DMV database as having a former
last name as a registered voter with either a driver’s license or a state ID card if he could
find a person in the GAB database having the same first name, middle initial and date of
birth. 2
After reclaiming as many unmatched registered voters as he could, Beatty
determined that 317,735 registered voters possessed neither a driver’s license nor a state
ID card. The total number of registered voters in Wisconsin was 3,395,688. Thus, 9.4% of2
Beatty testified that this last definition of match, i.e., persons with former last2
names who could be matched based on first name, middle initial, and date of birth, mighthave resulted in a slight overcount of the number of voters with “matching” IDs, since insuch cases the last name on the ID would not match the last name that would appear inthe poll book. Thus, a poll worker would likely deny the person access to a ballot if he orshe tried to use the ID to vote. Tr. 688.
I calculated the total number of registered voters by taking the number from the2
bottom of the "total voters" column of the table that appears in paragraph nine of Beatty's2013 declaration (3,373,749) and adding 21,939, which is the number of unmatchedregistered voters who were excluded from the totals in the table because their race couldnot be determined. See LULAC Ex. 817 ¶¶ 8 & 9.
73
Case 2:12-cv-00185-LA Filed 04/29/14 Page 73 of 90 Document 127A. 232
registrants lacked a matching driver’s license or state ID card.
In response to Beatty, the defendants offered the testimony of M.V. Hood III, a
University of Georgia professor of political science. Hood also attempted to match
registered voters in the GAB database with individuals in the DMV database in order to
identify the number of registrants who possessed a qualifying ID. Hood, however, used
different criteria than Beatty for determining what counted as a match, and he concluded
that between 167,351 (4.9% of registrants) and 368,824 (10.9% of registrants) did not
possess a driver’s license or state ID card. 3
The significant differences between the criteria employed by Beatty and Hood involve
the use of the identification number associated with an entry. In the DMV database, the
identification number is the number that appears on a person’s driver’s license or state ID
card. In 2006, as required by the Help America Vote Act, Wisconsin began asking voters
to write down this number when they registered to vote. Thus, for post-2006 registrants, the
entries in the GAB database include an identification number. Hood used these numbers
in two ways. First, he assumed that two entries qualified as a match if they had matching
identification numbers. Second, employing some of his more “relaxed” criteria, he assumed
that if a person had an identification number associated with his or her entry in the GAB
database, that person also possessed a driver’s license or a state ID card, even if the
person could not be matched to a specific driver’s license or state ID card by other means.
Hood’s use of identification numbers in these two ways caused him to find a greater number
I derive the percentages by dividing the number of registered voters who lack an3
ID by 3,395,695, which is the number of registered voters in the GAB database that Hoodused.
74
Case 2:12-cv-00185-LA Filed 04/29/14 Page 74 of 90 Document 127A. 233
of matches between registered voters and DMV products than did Beatty. And as explained
below, I find that his use of identification numbers in these ways renders his conclusions
about the number of registered voters without an ID suspect. Therefore, I give greater
weight to Beatty’s conclusions than I do Hood’s.
Regarding Hood’s automatically counting a pair of entries as a match if they
contained the same identification number: In the course of his work, Beatty noticed a large
number of cases in which two individuals with the same identification number had different
names or dates of birth. As an example, Beatty points to a case in which an identification
number in the GAB database was assigned to a person with the first name Damon who was
born in 1980 and resides in Milwaukee County, while the same identification number in the
DMV database was assigned to a person with the first name Danielle who was born in 1971
and resides in Marinette County. LULAC Ex. 202 ¶ 6. On the basis of these observations,4
Beatty concluded that identification numbers were not unique. The defendants argue that
Hood was right to assume that identification numbers are unique, but the only evidence they
provide in support of this contention is Hood’s testimony, which in turn is based on an
interview he conducted with Debra Kraemer, a DMV employee who told Hood that DMV
identification numbers are unique. Kraemer did not testify at trial, and the defendants have
not explained how she determined that identification numbers are unique. Thus, I will not
credit her hearsay statement. Besides interviewing Kraemer, Hood made no effort to verify
whether identification numbers are unique, such as examining his matches to determine
I have omitted the last names of these individuals to protect their privacy. However,4
their last names are different.
75
Case 2:12-cv-00185-LA Filed 04/29/14 Page 75 of 90 Document 127A. 234
whether the names, dates of birth, etc., matched. Tr. 1546. Moreover, the defendants have5
not attempted to explain why, if identification numbers are unique, Beatty was able to find
instances in which the same identification number was assigned to two different individuals,
as in the case of Damon and Danielle. For these reasons, I conclude that Hood’s decision
to automatically count a pair of entries as a match if they had matching identification
numbers renders his conclusions about the number of registered voters without an ID
suspect. 6
Regarding Hood’s decision to deem a person with an identification number in the
GAB database as possessing an ID: During his interview with Kraemer, Hood learned that
DMV identification numbers are not permanent and that they are generated using an
algorithm based on a person’s name, sex, and date of birth. Any changes or corrections to
a person’s name or date of birth will cause the DMV to issue a new identification number.
In light of this information, Hood hypothesized that some of the individuals with identification
numbers in the GAB database who did not match an entry in the DMV database had
informed the DMV of changes or corrections to their names or dates of birth. This would
have caused the DMV to issue a new identification number, and this identification number
Hood testified that he “did some manual checking,” but he did not explain what he5
meant by that and, in the same breath, admitted that really he just assumed that state IDnumbers were unique. Tr. 1545.
I add that although Beatty did not automatically assume that entries with matching6
identification numbers were matches, he did give these entries a chance to match byname, date of birth, zip code and the other criteria he applied to all entries in thedatabases. Thus, while Beatty would not have counted the Damon and Danielle case asa match, he would have counted any entries with matching identification numbers asmatches if those entries satisfied his other criteria.
76
Case 2:12-cv-00185-LA Filed 04/29/14 Page 76 of 90 Document 127A. 235
would be different than the GAB identification number and also could have explained why
Hood was unable to generate a match using the person’s name and date of birth. Hood also
hypothesized that some of his unmatched voters with identification numbers may have been
in possession of a DMV product that expired before September 11, 2013, the latest date
on which an ID could expire and still appear in the database Hood received from the DMV.
If the ID expired after the date of the last general election, the person holding it could use
it to comply with Act 23 until the date of the next general election. See Wis. Stat.
§ 5.02(6m)(a). On the basis of these hypotheses, which he did not meaningfully test, Hood,7
under his more relaxed criteria, counted every person in the GAB database with an
identification number associated with his or her name as a registered voter who possessed
a driver’s license or a state ID card that could be used for voting. Hood determined that,
under his relaxed criteria, the number of voters without a DMV product ranged from 167,351
to 285,425. See Defs.’ Ex. 1001 at 6–7 & Table 2.
In general, I think it is reasonable to assume that a person with an identification
number in the GAB database at one time possessed either a driver’s license or a state ID
card. After all, if a number appears in GAB database, it means that the person had a DMV
identification number at the time he or she registered to vote and wrote that number down
on the registration form. But the fact that a person at one time had a matching DMV product
tells us little about whether that person currently has a matching DMV product. Possibly a
Hood sent 20 names of individuals with identification numbers in the GAB7
database and no corresponding product in the DMV database to Kraemer, and Kraemerdetermined that 85% of those cases could be explained by changes to a person’s name.However, as Hood admitted, no reasonable social scientist would draw conclusions abouta population of about 80,000 from a sample of only 20. Tr. 1537–38.
77
Case 2:12-cv-00185-LA Filed 04/29/14 Page 77 of 90 Document 127A. 236
significant number of people with identification numbers in the GAB database still have the
driver’s licenses or state ID cards they used when they registered, but assuming Hood’s
hypotheses are true, those cards will either be expired or they will have names on them that
differ from the names that appear in the poll books. If they are expired, they could not be
used to comply with Act 23 unless they expired between November 6, 2012 and September
12, 2013, and there is no evidence indicating that the number of IDs with expiration dates
within this range is likely to be significant. If the IDs have different names on them, then it
is unlikely that they could be used to comply with Act 23 because the names on the IDs will
likely not conform to the names that appear in the poll books. See Wis. Stat. § 6.79(2)(a).
Thus, I do not agree that individuals with identification numbers in the GAB database can,
on that basis alone, be counted as individuals who currently possess a driver’s license or
state ID card that could be used to comply with Act 23. As Beatty did not automatically
count such individuals as possessing a DMV product, I give greater weight to his opinion
on the number of registered voters lacking IDs than I do to Hood’s.
The defendants point out that Beatty did not investigate whether those who lack a
valid driver’s license or a valid state ID card nonetheless possess some other form of
qualifying ID, such as a passport or a military ID. They then note that it is possible that the
percentage of voters who possess only a form of ID other than a driver’s license or a state
ID card could be large. While this is possible, the defendants have pointed to no evidence
suggesting that it is likely that a large percentage of the 317,735 voters who lack a valid
driver’s license or a valid state ID card possess some other form of ID. And plaintiffs’
evidence is to the contrary. As discussed in greater detail in Appendix B, Matthew Barreto,
an associate professor of political science at the University of Washington, conducted a
78
Case 2:12-cv-00185-LA Filed 04/29/14 Page 78 of 90 Document 127A. 237
telephonic survey of eligible voters in Milwaukee County and asked the survey respondents
about the forms of ID they possessed. One of his findings was that the percentage of
Milwaukee County eligible voters who had only a form of ID other than a driver’s license or
a state ID card was 0.3%. Tr. 300. Although Barreto’s survey was conducted in Milwaukee
County rather than statewide and targeted eligible voters rather than registered voters, there
is no reason to think that the percentage of registered voters in the state who possess only
a form of ID other than a driver’s license or a state ID card is much higher than 0.3%.
Applying this percentage to the number of registered voters in the GAB database provided
to Beatty (3,395,688), we can estimate that about 10,000 voters in Wisconsin possess only
a form of qualifying ID other than a driver’s license or state ID card. If we subtract this
estimate from the number of registered voters without a valid driver’s license or state ID
card, the estimated number of voters without any form of Act 23-qualifying ID in the state
becomes 307,735. As this is an estimate rather than a precise measurement, I will round
down to 300,000 and find that this is the number of registered voters in Wisconsin who, at
the time of trial, did not possess a qualifying form of ID. This is approximately 9% of the
population of registered voters in Wisconsin.
79
Case 2:12-cv-00185-LA Filed 04/29/14 Page 79 of 90 Document 127A. 238
Appendix B: Expert Opinions of Matthew Barreto
Professor Matthew Barreto is an expert on voting behavior, survey methods and
statistical analysis who, in January 2012, conducted a telephonic survey of eligible voters
in Milwaukee County. Barreto designed the survey in collaboration with Professor Gabriel
Sanchez of the University of New Mexico. The survey asked voters whether they had a
qualifying photo ID as defined in Act 23. It also asked voters whether they had all of the
primary documents required to obtain a free state ID card as a first-time applicant. The
results showed that, of 661,958 eligible voters in Milwaukee County, 9.53% or 63,085 voters
did not possess an acceptable form of photo ID, and 34.1% of these voters—21,512
people—also lacked the primary documents required to get a free state ID card as a first-
time applicant. Frank Ex. 600 at 16–17, 34, 37. Barreto concluded that the most common
problem for individuals who lack primary documents is the requirement that they show proof
of citizenship and name and date of birth. The survey results showed that 32% of the
eligible voters in Milwaukee County who lack a photo ID—20,162 people—do not have
certified copies of their birth certificates or any of the other documents necessary to prove
citizenship. Frank Ex. 600 at 37. Barreto also found that approximately 2.6% of the eligible
voters in Milwaukee County who lack a qualifying photo ID—approximately 1,640
people—do not have any of the documents necessary to prove identity. Id.
The defendants argue first that Barreto’s data it is outdated because the survey was
conducted in January 2012 and the trial took place in November 2013. They suggest that,
between the time of the survey and the time of trial, many of the individuals who lacked an
ID at the time of Barreto’s survey might have obtained one through the state’s free ID
program. They offer evidence showing that, between July 2011 and September 2013, the
80
Case 2:12-cv-00185-LA Filed 04/29/14 Page 80 of 90 Document 127A. 239
DMV issued 74,030 free state ID cards to Milwaukee County residents for voting purposes.
Defs.’ Ex. 1001 at 19 (Table 9).
I agree that it is possible that some of those who lacked an ID at the time of Barreto’s
survey have obtained one, but I find it unlikely that the free ID program substantially
reduced the number of eligible voters without an ID. First, at the time of Barreto’s survey,
the free ID program had already been in effect for six months. Thus, the survey results
account for the issuance of some of the free IDs. Second, some of the free IDs the DMV
issued were replacement or renewal IDs that went to individuals who already had an ID.
See Tr. 1818 (noting that a person can get a replacement or renewal card as part of the free
ID program). Third, it is very likely that some of the free IDs were issued to individuals who
already had driver’s licenses. Although the DMV is not supposed to issue state ID cards to
individuals who already possess a driver’s license, data from the DMV shows that many
individuals in Wisconsin possess both a driver’s license and a state ID card. In April 2012,
one of the plaintiffs’ experts, Leland Beatty, reviewed the DMV’s records and found 112,397
duplicate records in the driver’s license and state ID card databases. LULAC Ex. 2. In these
cases, the driver’s license holder and the ID card holder had the same first name, last
name, date of birth, gender, ethnicity, county of residence and zip code. LULAC Ex. 2.
When Beatty updated his work in September 2013, he found that the number of duplicates
had increased. Tr. 736, 739. Overall he found that about 30% of state ID card holders also
have a driver’s license. Tr. 690. One reason for the high number of duplicates might be that1
The defendants’ expert, M.V. Hood III, reached a similar conclusion. When he1
compared the driver’s license database to the state ID card database in 2012, he found114,607 duplicate records. Defs.’ Ex. 1003 ¶ 7. In 2013, he found 146,137 duplicates.Defs.’ Ex. 1001 at 3.
81
Case 2:12-cv-00185-LA Filed 04/29/14 Page 81 of 90 Document 127A. 240
there is a common misconception that under Act 23 a person must obtain a special ID card
from the DMV in order to vote even if he or she already has a driver’s license. Tr. 1814.
Fourth, looking at the number of free IDs issued in isolation fails to take into account
possible changes in the population of eligible voters: possibly that population increased. The
defendants’ own expert agreed that it would be speculative to draw conclusions about
current possession rates based on the issuance of free IDs alone. Tr. 1559–61. For all of
these reasons, I find it unlikely that the free ID program has significantly changed the
number of eligible voters who lack an ID.2
Alternatively, the defendants argue that Barreto’s survey results should be given little
weight because it will be easy for most of those who lack photo IDs to get free state ID
cards. As evidence of this, they point to the testimony of Professor Hood. Hood reviewed
Barreto’s survey and found that it “was conducted in a professional manner using commonly
accepted survey research practices,” and he agreed that the survey results show that only
90.5% of eligible voters in Milwaukee County have a qualifying photo ID under Act 23. Defs.’
Ex. 1003 ¶¶ 20, 26. However, he noted that the survey results show that an additional 6.9%
of survey respondents who do not currently have a qualifying photo ID stated that they have
had a Wisconsin driver’s license or state ID card at some point in their lives. Id. ¶¶ 27–28.
He believes that all of these individuals should be able to easily obtain free state ID cards
for voting purposes because they successfully obtained them in the past. Id. Thus, he
The defendants suggest that the November 2012 presidential election may have2
prompted a large number of individuals who lacked an ID at the time of Barreto’s surveyto obtain one. But Act 23 was enjoined well before that election. Thus, individuals wholacked an ID would have had little incentive to obtain one.
82
Case 2:12-cv-00185-LA Filed 04/29/14 Page 82 of 90 Document 127A. 241
concludes that 97.4% of eligible voters in Milwaukee County either have a qualifying ID or
could easily obtain one.
I reject Hood’s conclusion that it will be easy for all 6.9% of the voters who held IDs
at some point in the past to obtain a state ID card because I do not know anything about
the circumstances of these voters. I do not know how long ago they held their IDs, and I do
not know if they currently possess all of the primary documents required to obtain a state
ID card. Even if a voter at some point had all of the documents required to get a state ID
card, he or she could have lost some of the necessary documents. This is especially true
for low-income voters, who Barreto found are more likely to lack a qualifying ID. Frank Ex.
600 at 28–31. It is also important to note that the DMV’s documentation requirements have
changed and become more strict over time. For example, the DMV used to accept a
baptismal certificate or hospital birth certificate as proof of citizenship, but now it will only
accept a certified copy of a birth certificate. Tr. 1848–49. Thus, a person who was able to
meet the documentation requirements at some point in the past may not be able to do so
today even if they still have all of the documents they used to obtain their first ID card.
Hood’s analysis does, however, raise a question about how many of the eligible
voters in Milwaukee County who currently lack IDs will be treated as first-time applicants by
the DMV. The DMV treats anyone who had a Wisconsin driver’s license or state ID card that
expired within the last eight years as a renewal applicant, and it only requires renewal
applicants to show proof of identity and, if the person has moved, proof of residence to get
a state ID card. Tr. 1092–94; Defs.’ Ex. 1074. Barreto’s survey data shows that
approximately 9.53% of eligible voters in Milwaukee County—approximately 63,085
people—do not have qualifying photo IDs under Act 23. The DMV will treat approximately
83
Case 2:12-cv-00185-LA Filed 04/29/14 Page 83 of 90 Document 127A. 242
17,210 of these voters as first-time applicants because they are part of the 2.6% of people
identified by Hood who have never had a Wisconsin driver’s license or state ID card. Defs.’
Ex. 1003 ¶ 27. But it is unclear how many of the remaining approximately 45,875 voters will
be treated as first-time applicants because these voters have had Wisconsin driver’s
licenses or state ID cards at some point in the past. Anyone in this group who has had an
ID that expired within the last eight years will be treated as a renewal applicant.
Because of the uncertainty about who will be treated as a first-time applicant, the
record does not indicate exactly how many eligible voters in Milwaukee County lack a
qualifying photo ID and the primary documents required to get one. I know from Barreto’s
report that 21,512 voters lack an ID and the documents required to get an ID if they are first
time applicants, but I do not know how many of these voters will actually be treated as first-
time applicants because Barreto did not consider this question. Barreto’s data does,
however, prove three things: (1) approximately 9.53% of the eligible voters in Milwaukee
County, or 63,085 voters, do not have qualifying IDs under Act 23, (2) the DMV will treat at
least 17,210 of these voters as first-time applicants if they apply for a state ID card because
they have never had a Wisconsin driver’s license or state ID card, and (3) there are
approximately 1,640 eligible voters in Milwaukee County alone who lack qualifying IDs and
proof of identity, which the DMV will require them to show regardless of whether they are
a first-time or renewal applicant.
84
Case 2:12-cv-00185-LA Filed 04/29/14 Page 84 of 90 Document 127A. 243
Appendix C: Beatty’s Methodology in Determining Disproportionate Impact
Beatty performed a “matching” analysis of databases maintained by the GAB and the
DMV. The GAB database contained a list of Wisconsin registered voters, and the DMV
databases contained lists of Wisconsin residents who have a current driver’s license and/or
state ID card. Beatty’s methodology proceeded in two major steps. First, he determined how
many registered voters in the GAB database could be matched to either a driver’s license
or a state ID card in the DMV database. I have explained how he performed this step in
Appendix A. Second, Beatty attempted to identify the race of the remaining unmatched
voters. I explain this step of his methodology below.
Beatty submitted certain information about the unmatched voters to a third party,
Ethnic Technologies, to determine their likely race. The reason Beatty did this is that the
GAB database did not include information about race, and thus he had to determine the
race of the voters who could not be matched to a DMV product through some other
process. Ethnic Technologies is a firm that uses information about the name of a person
and where that person lives to determine his or her likely race and ethnicity (among other
characteristics). Typical clients of the firm include companies and organizations that engage
in direct marketing in which it is important to know the race or ethnicity of the individuals
receiving the company’s marketing materials. Tr. 598–601.
Beatty explained the general process that a firm like Ethnic Technologies uses to
identify race and ethnicity as follows:
[Beatty]: They [Ethnic Technologies] use a system that breaks out eachpart of a person’s name so that they have a mini database that’s built up overa long period of time where they understand name prefixes, middle parts oflast names, name suffixes that are highly predictive of country of origin. Theybegin with the first name. The first name is very indicative of the cultural
85
Case 2:12-cv-00185-LA Filed 04/29/14 Page 85 of 90 Document 127A. 244
values of the namer of a person. Typically parents. So they begin there andwhere there are names that are only found in one particular type of—oneparticular race, that’s gonna be determinative. If the first name is notdeterminative they move to the last name where they literally parse it apartsyllable by syllable and understand what the name means, what its derivationis, and what country of origin it was likely from.
Q. And is there other information beyond first and last name that goesinto that analysis?
A. Yes. If it’s still not decisive they use the middle name which like thefirst name is very indicative of the cultural values of the namer. If we’re stilluncertain we look at that actual latitude and longitude, put it in a block, andunderstand if it is predominantly, overwhelmingly, marginally one race oranother.
Q. And when you say that latitude and longitude, what do you mean bythat?
A. It’s—latitude and longitude is a way of measuring a particular spoton the earth. And if you know the latitude and longitude you can place it rightinto a neighborhood.
Q. You mean of the individual’s residence.
A. Yes.
Q. And when you say in a certain block what do you mean by that?
A. A census block in urban areas is often literally a city block. In ruralareas it may cover a wider expanse, but mostly in urban areas it’s close to anexact city block.
Q. And is there information available about the racial demographics ofthe residents of a census block?
A. Yes, there’s both census data, there’s commercial data, but also weaggregate the voter file itself to understand the voter makeup in that block.
Tr. 636–37.
John Mas, a former employee of Ethnic Technologies, provided examples to illustrate
Ethnic Technologies’ general methodology: “So the premise is that you look at a person’s
86
Case 2:12-cv-00185-LA Filed 04/29/14 Page 86 of 90 Document 127A. 245
first name and you can infer a little bit about their culture or their background or you can
look at their last name. If you heard Alex Rodriguez you wouldn’t think that he’s a Chinese
person playing baseball.” Tr. 606. The firm then refines its analysis by drawing inferences
based on the neighborhood in which the person lives: “So you could have people with the
last name Lee, like Bruce Lee or Stan Lee and help decipher if he’s Chinese or Jewish. So
if you know where they live you can know that Bruce Lee if he lived in Chinatown more than
likely would be Chinese, or Stan Lee if he lived in Riverdale, New York was Jewish.” Tr.
608.
Using the data Beatty provided, Ethnic Technologies was able to identify the likely
race of 91.6% of the unmatched voters in 2012 and 93.1% of the unmatched voters in 2013.
Beatty then computed the percentage of registered voters of each race that lacked a
matching driver’s license or state ID. This produced the following results: In 2012, 9.5% of
white voters, 16.2% of Black voters, and 24.8% of Hispanic voters lacked a matching ID.
In 2013, 8.3% of white voters, 11.5% of Black voters, and 19.2% of Hispanic voters lacked
a matching ID.
The defendants offer two criticisms of Beatty’s methodology. Their first criticism is
that Beatty’s analysis failed to account for the possibility that unmatched voters might
possess a form of qualifying ID other than a driver’s license or a state ID card. This is a fair
point, but as other evidence in this case establishes, only an extremely small number of
people possess a form of qualifying ID other than a driver’s license or a state ID card and
do not also possess either a driver’s license or a state ID card. Tr. 300 (testimony of
Professor Barreto reporting that only 0.3 percent of Milwaukee County residents had only
a form of ID other than a driver’s license or state ID card). Thus, although some unmatched
87
Case 2:12-cv-00185-LA Filed 04/29/14 Page 87 of 90 Document 127A. 246
voters will possess a form of qualifying ID other than a driver’s license or state ID card, it
is highly unlikely that these unmatched voters are so numerous that they would affect
Beatty’s ultimate conclusion that minorities are substantially more likely than whites to lack
a qualifying form of ID.
The defendants’ second criticism of Beatty’s methodology has to do with his use of
Ethnic Technologies to determine the race of the unmatched voters. The defendants point
out that Ethnic Technologies determined the likely race of the unmatched voters by inputting
the voters’ names and locations into its proprietary software program, and that no witness
gave precise details about the algorithm on which that software is based. However, the
general principles underlying the software are known. As Beatty testified, the software first
attempts to match a person’s first name to an ethnicity, then examines the last name and
possibly middle name, and finally uses information about the neighborhood in which the
person lives to estimate the person’s race and ethnicity. Ethnic Technologies also explains
that this is the general principle underlying its software on its website. See LULAC Ex. 211;
www.ethnictechnologies.com (last viewed April 28, 2014).
Moreover, even though we do not know the precise details surrounding Ethnic
Technologies’ software, there is ample evidence in the record indicating that Ethnic
Technologies’ software is reliable enough for the purposes it was used in this case, which
is to estimate the racial makeup of a population. First, there is a consensus in the academic
literature that although the general principles employed by Ethic Technologies—known as
onomastics, Tr. 662–63—do not perfectly determine a person’s race, they “provide[] a
sufficient level of classification confidence to be used in the measurement of inequalities
and in the design and delivery of services that meet the needs of ethnic minorities.” Pablo
88
Case 2:12-cv-00185-LA Filed 04/29/14 Page 88 of 90 Document 127A. 247
Mateos, A Review of Name-based Ethnicity Classifications Methods and their Potential in
Population Studies, Population, Space and Place, July/August 2007, at 243; LULAC Ex.
213 at 26. Here, we are attempting to measure a racial inequality, and thus software based
on onomastics is a proper tool to use. Second, a study supported by a grant from the
National Cancer Institute found that Ethnic Technologies’ software was “nearly perfect in
estimating white race”—meaning that the software almost never identified a person as
nonwhite when the person self-identified as white. Jessica T. DeFrank et al., Triangulating
Differential Nonresponse by Race in a Telephone Survey, Preventing Chronic Disease, July
2007, at 1, 5; LULAC Ex. 212. It is true that the software misidentified a large number of
self-identified Black individuals as white, id., but this does not undermine Beatty’s
conclusion that Black voters are more likely than white voters to lack photo ID. If anything,
it indicates that the disparity in possession rates is even greater, as it implies that many of
the unmatched voters whom Ethnic Technologies identified as white are actually Black.1
Moreover, as Beatty testified, Ethnic Technologies has improved its software since the time
of the CDC study, and today the software has less of a tendency to misidentify Blacks as
whites. Tr. 661–62.
A final factor indicating that Ethnic Technologies’ software is reliable is the fact that
Ethnic Technologies has been able to remain in business since 1995. Tr. 597. Marketers
would not continue to hire Ethnic Technologies to estimate the race and ethnicity of their
target audiences if its software were unreliable. And Beatty himself testified that he has
As Beatty explained, there is a tendency to misidentify Black individuals as white1
because they often have the same names and live in the same neighborhoods as whites.Tr. 661.
89
Case 2:12-cv-00185-LA Filed 04/29/14 Page 89 of 90 Document 127A. 248
been using Ethnic Technologies in his work for many years and has found their results to
be very reliable. Tr. 634–35, 662–63.
In sum, I conclude that Beatty’s methods, and the conclusions he reached after
applying those methods, are reliable and should be given significant weight.
90
Case 2:12-cv-00185-LA Filed 04/29/14 Page 90 of 90 Document 127A. 249
AO 450 (Rev. 5/85) Judgment in a Civil Case q
United States District Court
EASTERN DISTRICT OF WISCONSIN
JUDGMENT IN A CIVIL CASELEAGUE OF UNITED LATIN AMERICAN CITIZENS(LULAC) OF WISCONSIN; CROSS LUTHERAN CHURCH;MILWAUKEE AREA LABOR COUNCIL, AFL-CIO;WISCONSIN LEAGUE OF YOUNG VOTERS EDUCATION FUND,
Plaintiffs
v. CASE NUMBER: 12-C-0185
JUDGE DAVID G. DEININGER; JUDGE MICHAEL BRENNAN;JUDGE GERALD C. NICHOL; JUDGE THOMAS BARLAND;JUDGE THOMAS C. CANE; KEVIN J. KENNEDY; and NATHANIEL E. ROBINSON, all in their official capacities,
Defendants
9 Jury Verdict. This action came before the Court for a trial by jury. The issues
have been tried and the jury has rendered its verdict.
: Decision by Court. This action came to trial or hearing before the Court. The
issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that the named Defendants and Defendants’officers, agents, servants, employees, and attorneys, and all those acting in concert orparticipation with them, or having actual or implicit knowledge of this Order by personalservice or otherwise, are hereby permanently enjoined from conditioning a person’saccess to a ballot, either in-person or absentee, on that person’s presenting a form ofphoto identification.
Approved as to form:s/ Lynn Adelman, District Judge
April 29, 2014 Jon W. SanfilippoDate Clerk
s/ D. Monroe
(By) Deputy Clerk
Case 2:12-cv-00185-LA Filed 04/29/14 Page 1 of 1 Document 128A. 250
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WISCONSIN
LEAGUE OF UNITED LATIN AMERICAN
CITIZENS (LULAC) OF WISCONSIN, et al.,
Plaintiffs,
v. Case No. 12-CV-0185
DAVID G. DEININGER, et al.,
Defendants.
NOTICE OF APPEAL
PLEASE TAKE NOTICE that Defendants David G. Deininger,
Michael Brennan, Gerald C. Nichol, Thomas Barland, Thomas Cane,
Kevin J. Kennedy, and Nathaniel E. Robinson (collectively, “Defendants”), by
their attorneys, Attorney General J.B. Van Hollen and Assistant Attorneys
General Clayton P. Kawski, Maria S. Lazar, and Brian P. Keenan, appeal to
the United States Court of Appeals for the Seventh Circuit from the
Decision and Order entered by this Court on April 29, 2014, Dkt. #127, and
the Judgment entered by this Court on April 29, 2014, Dkt. #128. A true and
correct copy of the Decision and Order and the Judgment are being filed with
this Notice of Appeal.
The counsel of record for Defendants on appeal will be
Assistant Attorney General Clayton P. Kawski. Assistant Attorneys General
Case 2:12-cv-00185-LA Filed 05/12/14 Page 1 of 2 Document 131A. 251
- 2 -
Maria S. Lazar and Brian P. Keenan will also be serving as appellate counsel.
The appropriate filing fee is being paid concurrent with this Notice of Appeal.
Please note that this case is related to Ruthelle Frank v. Scott Walker,
Case No. 11-CV-1128 (E.D. Wis.). The defendants in that related case are
simultaneously appealing the district court’s decision and order and
judgment.
Dated this 12th day of May, 2014.
Respectfully submitted,
J.B. VAN HOLLEN
Attorney General
s/Clayton P. Kawski
CLAYTON P. KAWSKI
Assistant Attorney General
State Bar # 1066228
MARIA S. LAZAR
Assistant Attorney General
State Bar # 1017150
BRIAN P. KEENAN
Assistant Attorney General
State Bar # 1056525
Attorneys for Defendants
Wisconsin Department of Justice
Post Office Box 7857
Madison, Wisconsin 53707-7857
(608) 266-7477 (Kawski)
(608) 267-3519 (Lazar)
(608) 266-0020 (Keenan)
(608) 267-2223 (fax)
Case 2:12-cv-00185-LA Filed 05/12/14 Page 2 of 2 Document 131A. 252
AO 450 (Rev. 5/85) Judgment in a Civil Case q
United States District Court
EASTERN DISTRICT OF WISCONSIN
JUDGMENT IN A CIVIL CASERUTHELLE FRANK, et al., on behalf of themselves and all others similarly situated,
Plaintiffs
v. CASE NUMBER: 11-C-1128
SCOTT WALKER, in his official capacity as Governor of the State of Wisconsin, et al.,
Defendants
9 Jury Verdict. This action came before the Court for a trial by jury. The issues
have been tried and the jury has rendered its verdict.
: Decision by Court. This action came to trial or hearing before the Court. The
issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that the named Defendants and Defendants’officers, agents, servants, employees, and attorneys, and all those acting in concert orparticipation with them, or having actual or implicit knowledge of this Order by personalservice or otherwise, are hereby permanently enjoined from conditioning a person’saccess to a ballot, either in-person or absentee, on that person’s presenting a form ofphoto identification.
Approved as to form:s/ Lynn Adelman, District Judge
April 29, 2014 Jon W. SanfilippoDate Clerk
s/ D. Monroe
(By) Deputy Clerk
Case 2:11-cv-01128-LA Filed 04/29/14 Page 1 of 1 Document 196A. 253
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WISCONSIN
RUTHELLE FRANK, et al.,
Plaintiffs,
v. Case No. 11-CV-1128
SCOTT WALKER, et al.,
Defendants.
NOTICE OF APPEAL
PLEASE TAKE NOTICE that Defendants Governor Scott Walker,
Judge David G. Deininger, Judge Michael Brennan, Judge Gerald C. Nichol,
Judge Thomas Barland, Judge Thomas Cane, Kevin J. Kennedy, Nathaniel E.
Robinson, Mark Gottlieb, Lynne Judd, Kristina Boardman, Donald D.
Reincke, Tracy Jo Howard, Sandra M. Brisco, Barney L. Hall, Donald J.
Genin, Jill Louise Geoffroy, and Patricia A. Nelson (collectively,
“Defendants”), by their attorneys, Attorney General J.B. Van Hollen and
Assistant Attorneys General Clayton P. Kawski, Maria S. Lazar, and Brian P.
Keenan, appeal to the United States Court of Appeals for the Seventh Circuit
from the Decision and Order entered by this Court on April 29, 2014,
Dkt. #195, and the Judgment entered by this Court on April 29, 2014,
Case 2:11-cv-01128-LA Filed 05/12/14 Page 1 of 3 Document 199A. 254
- 2 -
Dkt. #196. A true and correct copy of the Decision and Order and the
Judgment are being filed with this Notice of Appeal.
The counsel of record for Defendants on appeal will be
Assistant Attorney General Clayton P. Kawski. Assistant Attorneys General
Maria S. Lazar and Brian P. Keenan will also be serving as appellate counsel.
The appropriate filing fee is being paid concurrent with this Notice of Appeal.
Please note that this case is related to League of United Latin American
Citizens (LULAC) of Wisconsin v. Deininger, Case No. 12-CV-185 (E.D. Wis.).
The defendants in that related case are simultaneously appealing the
district court’s decision and order and judgment.
Case 2:11-cv-01128-LA Filed 05/12/14 Page 2 of 3 Document 199A. 255
- 3 -
Dated this 12th day of May, 2014.
Respectfully submitted,
J.B. VAN HOLLEN
Attorney General
s/Clayton P. Kawski
CLAYTON P. KAWSKI
Assistant Attorney General
State Bar # 1066228
MARIA S. LAZAR
Assistant Attorney General
State Bar # 1017150
BRIAN P. KEENAN
Assistant Attorney General
State Bar # 1056525
Attorneys for Defendants
Wisconsin Department of Justice
Post Office Box 7857
Madison, Wisconsin 53707-7857
(608) 266-7477 (Kawski)
(608) 267-3519 (Lazar)
(608) 266-0020 (Keenan)
(608) 267-2223 (fax)
kawskicp\cases\frank - voter id, governor walker, gab, dot\pleadings\notice of appeal.doc
Case 2:11-cv-01128-LA Filed 05/12/14 Page 3 of 3 Document 199A. 256
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WISCONSIN
RUTHELLE FRANK, et al.,
Plaintiffs,
v. Case No. 11-CV-1128
SCOTT WALKER, et al.,
Defendants.
LEAGUE OF UNITED LATIN AMERICAN
CITIZENS (LULAC) OF WISCONSIN, et al.,
Plaintiffs,
v. Case No. 12-CV-0185
DAVID G. DEININGER, et al.,
Defendants.
NOTICE OF MOTION AND MOTION TO
STAY PERMANENT INJUNCTION PENDING APPEAL
TO: Plaintiffs’ Counsel of Record
PLEASE TAKE NOTICE that Defendants in the above-captioned cases
hereby move the Court for an order staying its April 29, 2014, permanent
injunction pending appeal. This motion is made pursuant to Federal Rule of
Civil Procedure 62(c) and Federal Rule of Appellate Procedure 8(a)(1). The
motion will be heard at a date and time determined by the Court, and the
grounds for the motion are stated below.
Case 2:11-cv-01128-LA Filed 05/12/14 Page 1 of 20 Document 201A. 257
- 2 -
INTRODUCTION
Defendants respectfully move the Court for an order staying the
permanent injunction that it entered on April 29, 2014. The Court’s decision
and order contains a number of legal errors:
The Court’s permanent injunction is impermissibly broad.
In Frank, the Court’s interpretation and application of Crawford
v. Marion County Election Board, 553 U.S. 181 (2008), and the
applicable constitutional balancing test was incorrect.
The Court’s novel interpretation and application of Section 2 of
the Voting Rights Act of 1965 was inconsistent with the plain
language and meaning of that law.
In LULAC, the Court’s statutory standing analysis was incorrect.
These legal errors are likely to be reversed on appeal.
Furthermore, all Wisconsin voters are likely to be harmed by the
Court’s permanent injunction, which enjoins an election law intended to
preserve and protect the right to vote. For the reasons argued below, the
Court should grant this motion and stay its permanent injunction pending
appeal.
Case 2:11-cv-01128-LA Filed 05/12/14 Page 2 of 20 Document 201A. 258
- 3 -
LEGAL STANDARD
Federal Rule of Civil Procedure 62(c) states, in relevant part: “While an
appeal is pending from an interlocutory order or final judgment that grants,
dissolves, or denies an injunction, the court may suspend, modify, restore, or
grant an injunction on terms for bond or other terms that secure the opposing
party’s rights.”
Federal Rule of Appellate Procedure 8(a)(1) states, in relevant part: “A
party must ordinarily move first in the district court for the following relief:
(A) a stay of the judgment or order of the district court pending appeal[.]”
The Seventh Circuit has recently stated the standard for granting a
stay pending appeal:
The standard for granting a stay pending appeal mirrors that
for granting a preliminary injunction. In re Forty-Eight Insulations,
Inc., 115 F.3d 1294, 1300 (7th Cir.1997). . . . To determine whether to
grant a stay, we consider the moving party’s likelihood of success on
the merits, the irreparable harm that will result to each side if the stay
is either granted or denied in error, and whether the public interest
favors one side or the other. See Cavel Int’l, Inc. v. Madigan,
500 F.3d 544, 547-48 (7th Cir.2007); Sofinet v. INS, 188 F.3d 703, 706
(7th Cir.1999); In re Forty-Eight Insulations, 115 F.3d at 1300. As with
a motion for a preliminary injunction, a “sliding scale” approach
applies; the greater the moving party’s likelihood of success on the
merits, the less heavily the balance of harms must weigh in its favor,
and vice versa. Cavel, 500 F.3d at 547-48; Sofinet, 188 F.3d at 707.
In re A & F Enters., Inc. II, 742 F.3d 763, 766 (7th Cir. 2014).
Case 2:11-cv-01128-LA Filed 05/12/14 Page 3 of 20 Document 201A. 259
- 4 -
ARGUMENT
Defendants are likely to prevail on the merits on appeal because of
numerous legal errors by the Court. The balance of harms tips in Defendants’
favor because the Court’s impermissibly broad permanent injunction causes
irreparable harm. It prevents Defendants and local election officials from
enforcing a voting regulation designed to preserve and protect the right to
vote of all eligible Wisconsin voters. The Court should grant this stay motion
for the reasons that follow.
I. THE COURT’S IMPERMISSIBLY BROAD PERMANENT
INJUNCTION PURPORTS TO EXERCISE
JURISDICTION OVER THIS CASE AND ANY FUTURE
CASE CHALLENGING A DIFFERENT VOTER PHOTO
ID LAW, EVEN WHEN THE FILING OF A NOTICE OF
APPEAL DIVESTS THE COURT OF JURISDICTION.
The Court’s impermissibly broad permanent injunction purports to
exercise jurisdiction over this case and any future case challenging a different
voter photo ID law, even when the filing of a notice of appeal divests the
Court of jurisdiction. The Court’s over-reaching permanent injunction is
likely to be reversed on appeal.
The Court’s judgment states that:
the named Defendants and Defendants’ officers, agents, servants,
employees, and attorneys, and all those acting in concert or
participation with them, or having actual or implicit knowledge of this
Order by personal service or otherwise, are hereby permanently
Case 2:11-cv-01128-LA Filed 05/12/14 Page 4 of 20 Document 201A. 260
- 5 -
enjoined from conditioning a person’s access to a ballot, either
in-person or absentee, on that person’s presenting a form of photo
identification.
(Frank Dkt. #196; LULAC Dkt. #128.) Rather than enjoining only
2011 Wisconsin Act 23’s (“Act 23’s”) voter photo ID requirement, the Court
purports to enjoin any voter photo ID requirement, even one that has not
been enacted.
By entering such an excessively broad injunction, the Court aims to
give itself the power of a second Wisconsin Governor, equipped with the
authority to judicially “veto” future voter photo ID laws that the
Wisconsin Legislature might enact. The Court has no such power. In
entering its injunction, the Court virtually requires pre-clearance of any
future Wisconsin voter photo ID law prior to its implementation. See
Shelby County, Alabama v. Holder, ___ U.S. ___, 133 S. Ct. 2612 (2013)
(striking down the coverage formula relating to the pre-clearance
requirement of Section 5 of the Voting Rights Act). This is an error of law
because the Court lacks jurisdiction to enforce its permanent injunction in
this manner after an appeal is filed.
This Court does not have jurisdiction to address the merits of this
case—let alone a future case about a different law—after the notice of appeal
Case 2:11-cv-01128-LA Filed 05/12/14 Page 5 of 20 Document 201A. 261
- 6 -
is filed. The Supreme Court and the Seventh Circuit have made the point
clear:
[A] federal district court and a federal court of appeals should not
attempt to assert jurisdiction over a case simultaneously. The filing of
a notice of appeal is an event of jurisdictional significance—it confers
jurisdiction on the court of appeals and divests the district court of its
control over those aspects of the case involved in the appeal.
Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982); Wis. Mut.
Ins. Co. v. United States, 441 F.3d 502, 504 (7th Cir. 2006) (quoting and
relying upon Griggs).
Since an appeal has been filed, this case is “in” the court of appeals, not
the district court. Kusay v. United States, 62 F.3d 192, 194 (7th Cir. 1995).
As Judge Easterbrook has explained, until the court of appeals issues its
mandate, “any action by the district court is a nullity.” Id. (citing
United States v. Wells, 766 F.2d 12, 19 (1st Cir. 1985); Zaklama v.
Mount Sinai Med. Ctr., 906 F.2d 645, 649 (11th Cir. 1990); 16 Charles Alan
Wright, Arthur R. Miller, Edward H. Cooper & Eugene Gressman,
FEDERAL PRACTICE & PROCEDURE § 3949 at 359 (1977)). The Court’s overly
broad permanent injunction is an attempt to exercise jurisdiction that the
Court does not have, and it is likely to be reversed on appeal.
Case 2:11-cv-01128-LA Filed 05/12/14 Page 6 of 20 Document 201A. 262
- 7 -
II. CONTRARY TO CRAWFORD, THE COURT FACIALLY
INVALIDATED ACT 23’S VOTER PHOTO ID
REQUIREMENT WHEN THE LAW CAN UNDENIABLY
BE CONSTITUTIONALLY APPLIED TO THE VAST
MAJORITY OF WISCONSIN VOTERS WHO
CURRENTLY POSSESS QUALIFYING ID.
Contrary to Crawford, the Court facially invalidated Act 23’s voter
photo ID requirement when the law can undeniably be constitutionally
applied to the vast majority of Wisconsin voters who currently possess
qualifying ID. The Court paid lip-service to the idea of granting relief only as
to “subgroups” of Wisconsin voters, but then it erroneously facially
invalidated the law as unconstitutional as applied to all voters. The Court
also incorrectly discounted the legitimate state interests that Crawford
recognized. The Court’s reasoning is inconsistent with Crawford and is likely
to be reversed on appeal.
This Court made contradictory and erroneous rulings in its
constitutional analysis, which misinterpreted and misapplied Crawford.
First, the Court disclaimed the need to address constitutional claims at all,
and then it addressed them at great length. (Frank Dkt. #195 at 2, 6-39.)
Given that the Court ruled on statutory Voting Rights Act claims in both
Frank and LULAC, the decision to also address Fourteenth Amendment
claims was unnecessary and erroneous.
Case 2:11-cv-01128-LA Filed 05/12/14 Page 7 of 20 Document 201A. 263
- 8 -
Second, the Court held that the Supreme Court in Crawford allowed for
a ruling limited to a “subgroup” of voters, and then the Court erroneously
failed to define or apply any “subgroup” to its decision. (Frank Dkt. #195
at 10-11 (“I conclude that a law like Act 23 is invalid if it imposes burdens on
a subgroup of a state’s voting population that are not outweighed by the
state’s justifications for the law.”).) The Court facially invalidated the law as
unconstitutional, concluding that “the only practicable remedy is to enjoin
enforcement of the photo ID requirement.” (Id. at 39 (footnote omitted).)
The Court’s factual findings establish that more than 90% of Wisconsin
voters already have qualifying ID and can, therefore, vote under Act 23. (See
Frank Dkt. #195 at 23 (footnote omitted) (“I find that approximately 300,000
registered voters in Wisconsin, roughly 9% of all registered voters, lack a
qualifying ID.”); see also id. at 73-74 (“9.4% of registrants lacked a matching
driver’s license or state ID card.”).) There is no reason under Crawford or the
Anderson/Burdick balancing test to hold that Act 23 is unconstitutional as to
these voters. The Court could have grappled with the “subgroups” issue by
addressing the Frank Plaintiffs’ class certification motion. Instead, the Court
chose to throw up its hands and fashion a facial remedy that is not supported
by the trial record and that is inconsistent with the Court’s own analysis of
Crawford and the Supreme Court’s treatment of “subgroups” of voters.
(See id. at 10-11.)
Case 2:11-cv-01128-LA Filed 05/12/14 Page 8 of 20 Document 201A. 264
- 9 -
Third, the Court’s holding regarding the Anderson/Burdick balancing
test is incorrect, and Defendants are likely to prevail on the merits on appeal.
The Court determined that an unspecified “substantial” number of the
300,000-plus voters that it found lack qualifying ID will be deterred or
prevented from voting. (Frank Dkt. #195 at 38.) Unable to quantify its
finding despite an extensive factual record, the Court then placed an
unwarranted burden on the State to justify its law by holding that “it is
absolutely clear that Act 23 will prevent more legitimate votes from being
cast than fraudulent votes.” (Id.) This was an incorrect application of the
relevant constitutional test.
The Court’s application of the Anderson/Burdick balancing test was
incorrect because the Court gave insufficient weight to the legitimate and
important state interests that the Supreme Court recognized in Crawford.
With regard to the State’s interest in preventing or deterring
voter-impersonation fraud, for example, the Supreme Court has never
required proof of past voter-impersonation fraud to find that there is a
legitimate and important interest in preventing such fraud. Crawford did not
require such proof, yet it upheld Indiana’s law based, in part, upon the state’s
fraud prevention rationale. See Crawford, 553 U.S. at 194 (“The record
contains no evidence of any such fraud actually occurring in Indiana at any
time in its history.”). This Court’s holding inappropriately discounted the
Case 2:11-cv-01128-LA Filed 05/12/14 Page 9 of 20 Document 201A. 265
- 10 -
State’s interests. (See, e.g., Frank Dkt. #195 at 11 (“because virtually no voter
impersonation occurs in Wisconsin and it is exceedingly unlikely that voter
impersonation will become a problem in Wisconsin in the foreseeable future,
this particular state interest has very little weight.”).)
Act 23 is designed to prevent and deter potential voter fraud. It was
not necessary for the State to prove that voter-impersonation fraud has
occurred or is occurring; the State can be proactive and enact measures to
decrease the potential for such fraud. See Munro v. Socialist Workers Party,
479 U.S. 189, 195-96 (1986).
A voter photo ID requirement would both deter and prevent voter
impersonation fraud. It does not matter that a voter would have to be
“insane” to commit voter impersonation fraud because the risks of getting
penalized for such conduct far outweigh the “rewards” of getting away with it.
(Frank Dkt. #195 at 17.) The same could be said for other violations like
operating a motor vehicle while intoxicated or poaching deer. Laws can deter
and prevent even “insane” conduct.
In sum, this Court’s constitutional analysis was unnecessary in light of
the fact that it held the law invalid under the Voting Rights Act. The Court’s
decision was inconsistent with Crawford, misapplied the Anderson/Burdick
balancing test, and was unsupported by the trial record when more than 90%
Case 2:11-cv-01128-LA Filed 05/12/14 Page 10 of 20 Document 201A. 266
- 11 -
of Wisconsin’s eligible voters already possess qualifying ID, making a facial
ruling inappropriate. The Court is likely to be reversed on appeal.
III. THE COURT’S INTERPRETATION AND APPLICATION
OF SECTION 2 OF THE VOTING RIGHTS ACT IS
INCONSISTENT WITH THE PLAIN LANGUAGE AND
MEANING OF THE ACT.
The Court’s interpretation and application of Section 2 of the Voting
Rights Act is inconsistent with the plain language and meaning of the Act.
The “more likely to appear in the path of a minority voter” test that the Court
created is so broad and detached from the language of the Voting Rights Act
that it would potentially invalidate other laws not reasonably subject to
challenge, such as voter registration laws. The Court’s new test is wrong as a
matter of law. Defendants are likely to obtain reversal as to Plaintiffs’ Voting
Rights Act claims.
Comparing the language of Section 2 of the Voting Rights Act to this
Court’s new test illustrates the Court’s error:
42 U.S.C. § 1973:
(a) No voting qualification or prerequisite to voting or standard,
practice, or procedure shall be imposed or applied by any State or
political subdivision in a manner which results in a denial or
abridgement of the right of any citizen of the United States to vote on
account of race or color, or in contravention of the guarantees set forth
in section 1973b(f)(2) of this title, as provided in subsection (b) of this
section.
(b) A violation of subsection (a) of this section is established if,
based on the totality of circumstances, it is shown that the political
processes leading to nomination or election in the State or political
Case 2:11-cv-01128-LA Filed 05/12/14 Page 11 of 20 Document 201A. 267
- 12 -
subdivision are not equally open to participation by members of a class
of citizens protected by subsection (a) of this section in that its members
have less opportunity than other members of the electorate to participate
in the political process and to elect representatives of their choice.
The Court’s test (Frank Dkt. #195 at 52 (emphasis added)):
Section 2 protects against a voting practice that creates a barrier to
voting that is more likely to appear in the path of a voter if that voter is
a member of a minority group than if he or she is not.
These tests are completely different. The statute’s test is results based,
while the Court’s test is based upon likelihood. “Results in” and “on account
of race” are the key words in 42 U.S.C. § 1973(a). The Voting Rights Act’s
language is focused on a decreased opportunity to vote for minorities that is
caused by a new voting procedure.1
The Court’s new test, on the other hand, focuses not on causation but
on mere likelihood. The Court reiterated its incorrect view of the law in its
summary of Voting Rights Act findings of fact and conclusions of law, which
repeatedly relied upon likelihoods rather than results or causation. (See
Frank Dkt. #195 at 68; LULAC Dkt. #127 at 68.) The Court’s ruling is out of
touch with the meaning of 42 U.S.C. § 1973(a).
The Court’s test is also wrong in light of 42 U.S.C. § 1973(b). The key
words in 42 U.S.C. § 1973(b) are “not equally open” and “have less
1See Gonzalez v. Arizona, 677 F.3d 383, 405 (9th Cir. 2012) (en banc) (“proof of
‘causal connection between the challenged voting practice and a prohibited
discriminatory result’ is crucial”), aff’d on unrelated grounds, Arizona v. Inter Tribal
Council of Ariz., Inc., ___ U.S. ___, 133 S. Ct. 2247 (2013).
Case 2:11-cv-01128-LA Filed 05/12/14 Page 12 of 20 Document 201A. 268
- 13 -
opportunity.” Election participation that is “not equally open” to minorities,
causing them to “have less opportunity” to vote than non-minorities, is
nothing like a voting “barrier . . . that is more likely to appear in the path of”
minority voters. Contrary to the language of the Voting Rights Act, this
Court’s test is focused on comparing whether a voting procedure could
potentially create more difficulty for minorities to vote than non-minorities
(i.e., the “barrier . . . is more likely to appear in the path of” minorities). The
Court’s interpretation of the Voting Rights Act is an error of law, which is
likely to be reversed on appeal.
In support of its novel interpretation of Section 2, the Court relied, in
part, upon a dissent by Justice Antonin Scalia in Chisom v. Roemer,
501 U.S. 380 (1991). (See Frank Dkt. #195 at 52; LULAC Dkt. #127 at 52.)
The Court’s reliance upon a dissent to create its new test was an error of law
for at least three reasons. First, Justice Scalia’s opinion was a dissent; it has
no precedential value.
Second, Justice Scalia’s dissent was issued in a vote dilution case
involving the use of multi-member districts to elect judges to the Louisiana
Supreme Court, not an alleged vote denial case like this one, which involves a
new voting procedure. Chisom, 501 U.S. at 384-85. This Court’s decision and
order correctly held that the standards applicable in vote dilution cases do not
apply in vote denial cases. (Frank Dkt. #195 at 50; LULAC Dkt. #127 at 50.)
Case 2:11-cv-01128-LA Filed 05/12/14 Page 13 of 20 Document 201A. 269
- 14 -
After so holding, though, the Court then went on to incorrectly apply vote
dilution case factors and to misinterpret the language of the Voting Rights
Act in light of Chisom. (Id. at 51-52, 64-67.)
Third, Justice Scalia’s hypothetical example in his Chisom dissent was
not intended to be illustrative of all Section 2 claims relating to vote denial.
Nor does his example (a regulation that permits voters to register only
three hours one day per week) compare in any respect to a voter photo ID
requirement. Chisom, 510 U.S. at 408 (Scalia, J., dissenting). This Court’s
decision takes Justice Scalia’s example out of context and transforms it as a
way to explain its incorrect reading of the Voting Rights Act. This was an
error of law.
It is not lost on Defendants that this case is unique in its application of
Section 2 of the Voting Rights Act. In some ways, this case is the first of its
kind. Nonetheless, that does not give the Court carte blanche to ignore the
plain language of Section 2 and craft a new test that is out of touch with the
meaning of the Act. The Court’s interpretation of the Voting Rights Act is
likely to be reversed on appeal.
Case 2:11-cv-01128-LA Filed 05/12/14 Page 14 of 20 Document 201A. 270
- 15 -
IV. THE COURT’S STATUTORY STANDING ANALYSIS IN
LULAC WAS WRONG; ONLY A VOTER CAN BE AN
“AGGRIEVED PERSON” UNDER THE VOTING RIGHTS
ACT, 42 U.S.C. § 1973a.
The Court’s statutory standing analysis in LULAC was wrong; only a
voter can be an “aggrieved person” under the Voting Rights Act, 42 U.S.C.
§ 1973a.
Defendants first presented this argument to the Court in an expedited
motion filed in LULAC in August 2013, after Plaintiffs’ counsel revealed that
the original lead voter plaintiff, Bettye Jones, passed away.
(LULAC Dkt. #77.) This left no individual voter plaintiff in LULAC, only four
organizational plaintiffs.
Prior to trial or during trial, the LULAC Plaintiffs could have moved
the Court to amend their complaint to add individual voter plaintiffs or to
consolidate their case with Frank. They did not. LULAC should have been
dismissed in August 2013, and none of the LULAC experts or other LULAC
witnesses should have been permitted to testify or present evidence at trial.
Instead, the Court denied Defendants’ motion and let the LULAC case
proceed apace. This was an error of law, and the error has persisted into the
Court’s April 29, 2014, ruling.
The Court’s legal error in LULAC regarding who has statutory standing
in a Voting Rights Act case led to the presentation of much of the trial
Case 2:11-cv-01128-LA Filed 05/12/14 Page 15 of 20 Document 201A. 271
- 16 -
evidence that the Court relied upon in its April 29, 2014, decision and order.
The Court’s legal error in letting the LULAC Plaintiffs go to trial has now
infected the Court’s entire final ruling, making it subject to reversal on
appeal. If the LULAC Plaintiffs should not have been allowed to present
evidence at trial, subtracting that LULAC evidence from the trial record—for
example Leland Beatty’s testimony—would make the Court’s final ruling
quite hollow.
The Court’s error regarding statutory standing and the Voting Rights
Act stems from its misreading of the plain language of the Act, 42 U.S.C.
§ 1973a. Statutory standing under the Voting Rights Act for private
litigants—those other than the United States Attorney General—is limited to
“aggrieved persons” seeking to enforce their right to vote. 42 U.S.C. § 1973a;
Roberts v. Wamser, 883 F.2d 617, 621 (8th Cir. 1989); Assa’ad-Faltas v.
South Carolina, No. 3:12-1786-TLW-SVH, 2012 WL 6103204, at *4
(D. S.C. Nov. 14, 2012); Clay v. Garth, No. 1:11CV85-B-S, 2012 WL 4470289,
at *2 (N.D. Miss. Sept. 27, 2012) (“The Voting Rights Act authorizes a private
cause of action for individuals who are ‘aggrieved persons.’ 42 U.S.C.
§ 1973a.”); McGee v. City of Warrensville Heights, 16 F. Supp. 2d 837, 845
(N.D. Ohio 1998) (“Standing under the Act is limited to ‘aggrieved persons,’
and that category is confined to persons whose voting rights have been denied
or impaired.”); Ill. Legislative Redistricting Comm’n v. LaPaille,
Case 2:11-cv-01128-LA Filed 05/12/14 Page 16 of 20 Document 201A. 272
- 17 -
782 F. Supp. 1267, 1270 (N.D. Ill. 1991). “Aggrieved persons” under the
Voting Rights Act are those persons who claim that their right to vote has
been infringed because of their race. Roberts, 883 F.2d at 621.
The Court’s decision and order holds that the word “persons” in
42 U.S.C. § 1973a is “presumed to include organizations, see 1 U.S.C. § 1[.]”
(LULAC Dkt. #127 at 47.) The Court is incorrect.
1 U.S.C. § 1 contradicts the Court’s reasoning. It states, in relevant
part (emphasis added):
In determining the meaning of any Act of Congress, unless the
context indicates otherwise—
. . . .
the words “person” and “whoever” include corporations,
companies, associations, firms, partnerships, societies, and joint stock
companies, as well as individuals[.]
Context is the key. The context of the phrase “aggrieved persons” in
42 U.S.C. § 1973a does not indicate that “persons” could mean organizations.
The Voting Rights Act is, of course, about voting. Organizations have no right
to vote. People do. The only sensible reading of the language, in context, is
that “persons” does not include organizations.
The Court also incorrectly turns to legislative history. (See
LULAC Dkt. #17 at 47.) The Court found no ambiguity in 42 U.S.C. § 1973a,
so “the judicial inquiry [was] complete.” Desert Palace, Inc. v. Costa,
539 U.S. 90, 98 (2003) (citation and internal quotation marks omitted). The
Case 2:11-cv-01128-LA Filed 05/12/14 Page 17 of 20 Document 201A. 273
- 18 -
meaning of the statutory language is plain, and there was no need to turn to
legislative history. Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992)
(“We have stated time and again that courts must presume that a legislature
says in a statute what it means and means in a statute what it says there.”);
United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (“where . . .
the statute’s language is plain, the sole function of the courts is to enforce it
according to its terms[]”) (internal quotation marks omitted).
“Persons” in 42 U.S.C. § 1973a cannot mean organizations because
organizations have no right to vote. The Court’s statutory standing holding
in LULAC was incorrect as a matter of law and is likely to be reversed on
appeal.
V. THE BALANCE OF HARMS TIPS IN DEFENDANTS’
FAVOR BECAUSE THE COURT’S EXPANSIVE
INJUNCTION PURPORTS TO PERMANENTLY ENJOIN
A VOTING REGULATION THAT IS DESIGNED TO
PRESERVE THE RIGHT TO VOTE OF ALL ELIGIBLE
WISCONSIN VOTERS.
Finally, the balance of harms tips in Defendant’s favor because the
Court’s expansive injunction purports to permanently enjoin a voting
regulation that is designed to preserve the right to vote of all eligible
Wisconsin voters. “‘[A]ny time a State is enjoined by a court from effectuating
statutes enacted by representatives of its people, it suffers a form of
irreparable injury.’” Maryland v. King, ___ U.S. ___, 133 S. Ct. 1, 3 (2012)
Case 2:11-cv-01128-LA Filed 05/12/14 Page 18 of 20 Document 201A. 274
- 19 -
(Roberts, C.J., in chambers) (quoting New Motor Vehicle Bd. of Cal. v.
Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers));
see also Aid for Women v. Foulston, 441 F.3d 1101, 1119 (10th Cir. 2006)
(same); Coalition for Econ. Equity v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997)
(same).
Case 2:11-cv-01128-LA Filed 05/12/14 Page 19 of 20 Document 201A. 275
- 20 -
CONCLUSION
For the reasons argued in this motion, the Court should stay its
permanent injunction pending appeal.
Dated this 12th day of May, 2014.
Respectfully submitted,
J.B. VAN HOLLEN
Attorney General
s/Clayton P. Kawski
CLAYTON P. KAWSKI
Assistant Attorney General
State Bar # 1066228
MARIA S. LAZAR
Assistant Attorney General
State Bar # 1017150
BRIAN P. KEENAN
Assistant Attorney General
State Bar # 1056525
Attorneys for Defendants
Wisconsin Department of Justice
Post Office Box 7857
Madison, Wisconsin 53707-7857
(608) 266-7477 (Kawski)
(608) 267-3519 (Lazar)
(608) 266-0020 (Keenan)
(608) 267-2223 (fax)
kawskicp\cases\jones - voter id, gab\pleadings\notice of motion and motion to stay permanent injunction pending
appeal.doc
Case 2:11-cv-01128-LA Filed 05/12/14 Page 20 of 20 Document 201A. 276
CERTIFICATE OF SERVICE
I certify that on June 23, 2014, I electronically filed the
foregoing Defendants-Appellants’ Consolidated Separate Appendix –
Volumes 1 through 7 with the clerk of court using the CM/ECF
system, which will accomplish electronic notice and service for the
following participants in these cases, who are registered CM/ECF
users:
Karyn L. Rotker Neil A. Steiner
Laurence J. Dupuis Craig G. Falls
Sean J. Young Dale E. Ho
Carl S. Nadler Angela M. Liu
Charles G. Curtis Jeremy N. Rosen
Nathan S. Foster
John C. Ulin
Dated this 23rd day of June, 2014.
J.B. VAN HOLLEN Attorney General /s/ Clayton P. Kawski CLAYTON P. KAWSKI Assistant Attorney General State Bar #1066228 Attorneys for Defendants-Appellants