PATIENCE DRAKE ROGGENSACK, J.
¶ 1 This appeal arises from a judgment of the Dane County Circuit Court
¶ 2 Plaintiffs challenge Act 23 under Article III, Section 1 of the Wisconsin Constitution.
¶ 3 We conclude that plaintiffs have failed to prove Act 23 unconstitutional beyond a reasonable doubt. In League of Women Voters of Wisconsin Education Network, Inc. v. Walker, 2014 WI 97, ___ Wis.2d ___, 851 N.W.2d 302, also released today, we concluded that requiring an elector to present Act 23-acceptable photo identification in order to vote is not an additional elector qualification. Id., ¶ 57. In the present case, we conclude that the burdens of time and inconvenience associated with obtaining Act 23-acceptable photo identification are not undue burdens on the right to vote and do not render the law invalid.
¶ 4 We conclude, as did the United Stated Supreme Court in Crawford v. Marion County Election Board, 553 U.S. 181, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008), that "the inconvenience of making a trip to [a state motor vehicle office], gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote." Id. at 198. Furthermore, photo identification is a condition of our times where more and more personal interactions are being modernized to require proof of identity with a specified type of photo identification. With respect to these familiar burdens, which accompany many of our everyday tasks, we conclude that Act 23 does not constitute an undue burden on the right to vote. Payment to a government agency, however, is another story.
¶ 5 Act 23 provides that the Department of Transportation (DOT) "may not charge a fee to an applicant for the initial issuance, renewal, or reinstatement of an identification card" when "the applicant requests that the identification card be provided without charge for purposes of voting." Wis. Stat. § 343.50(5)(a)3. (2011-12).
¶ 6 Plaintiffs produced evidence at trial that, in the course of obtaining a DOT photo identification card for voting, government agencies charged them fees to obtain supporting documents for their applications. A common example is a birth certificate, which is satisfactory proof of name, date of birth and citizenship, and can cost $20 to obtain. E.g., Wis. Stat. § 69.22(1)(a) and (c). The requirement for such documents arose under Wisconsin administrative rules that implement Act 23. E.g., Wis. Admin. Code § Trans 102.15(3)(a).
¶ 7 In order to resolve the conflict between Act 23 and Wis. Admin. Code § Trans 102.15(3)(a), we interpret the administrative rules and explain that the discretion of the Division of Motor Vehicles (DMV) administrators must be exercised in a constitutionally sufficient manner. Such exercise of discretion requires the issuance of DOT photo identification cards for voting without requiring documents for which an elector must pay a fee to a government agency.
¶ 8 We have been mindful that the task before us is not to determine whether "Act 23 is the best way to preserve and promote the right to vote." League of Women Voters, ___ Wis.2d ___, ¶ 55, 851 N.W.2d 302. Such "policy determinations ... are not properly addressed to the members of the Supreme Court of Wisconsin." MTI v. Walker, 2014 WI 99, ¶ 181, ___ Wis.2d ___, 851 N.W.2d 337 (Crooks, J., concurring).
¶ 9 Instead, we apply judicial restraint and constitutional principles to the case at hand. Accordingly, we reverse the judgment of the circuit court and vacate the injunctions the circuit court issued.
¶ 10 Plaintiffs are the Milwaukee Branch of the NAACP, Voces de la Frontera and numerous individuals residing either in Milwaukee County or in Polk County. The NAACP, an incorporated association with its business address in the City of Milwaukee, contends that "Act 23 will force the Milwaukee Branch of the NAACP to divert substantial resources away from traditional voter registration
¶ 11 Voces is Wisconsin's preeminent immigration rights organization. It expresses strong concerns about the burden Act 23 will place on the Latino community and its members as they seek to exercise their franchise. Voces alleges that "Act 23 will force Voces to divert substantial resources away from traditional voter registration and voter turnout efforts in order to educate and assist voters in procuring Act 23-acceptable photo ID."
¶ 12 Act 23, with a few limited exceptions, requires electors to identify themselves by presenting Act 23-acceptable photo identification in order to vote. Stated generally, these include: DOT issued driver's license; DOT issued photo identification card; an unexpired DOT photo identification card receipt; United States uniformed service identification card; United States passport; United States naturalization certificate issued within two years preceding the election; federally recognized Wisconsin Native American tribe's identification card; Wisconsin university or college student identification card; and citation or notice of driver's license suspension. Wis. Stat. § 5.02(6m). Our review focuses on the second form of acceptable identification, which we refer to as a DOT photo identification card for voting. See Wis. Stat. § 343.50.
¶ 13 The DMV is the division of the DOT charged with issuing DOT photo identification cards for voting spoken to in Act 23. DOT administrative rules governing DMV's process for issuing these cards require an applicant to document name, birth date, identity, residence and citizenship. A social security card and numerous other documents are proof of identity. Wisconsin Admin. Code § Trans 102.15(4)(a)13. An applicant may prove residence by items such as a utility bill, paycheck stub or similar document that shows name and address. § Trans 102.15(4m).
¶ 14 A certified copy or an original birth certificate is satisfactory proof of name, date of birth and citizenship. Wis. Admin. Code § Trans 102.15(3)(a). Wisconsin Stat. § 69.21 describes how to obtain vital records, including certified copies of birth certificates, for those applicants born in Wisconsin. Wisconsin Stat. § 69.22(1)(a) and (c) permit a government agency to assess a $20 fee for a certified copy of a birth certificate.
¶ 15 On March 6, 2012, the circuit court temporarily enjoined the enforcement of Act 23. On April 16-19, April 30, and May 4, 2012, the court conducted a bench trial. During the trial, plaintiffs testified about the burdens of time and inconvenience of going to DMV offices to obtain Act-23 acceptable identification. They also testified about the cost of documents the DMV requires in order to issue a DOT photo identification card for voting. These costs included payment to government agencies in various states, including Wisconsin, to
¶ 16 On July 17, 2012, the circuit court declared Act 23's photo identification requirements unconstitutional, and granted permanent injunctive relief. The circuit court reasoned that "[t]he cost and the difficulty of obtaining documents necessary to apply for a DMV Photo ID is a significant burden upon the opportunity of Wisconsin citizens to vote." It further concluded that these burdens "constitute a substantial impairment of the right to vote" and are therefore "inconsistent with, and in violation of Article III, Section 1 of the Wisconsin Constitution."
¶ 17 The circuit court made extensive findings of fact. For example, the court found that 80 percent of Wisconsin voters had a DOT-issued driver's license, which is an Act 23-acceptable identification, but that there were potentially thousands of otherwise qualified voters who currently lack Act 23-acceptable identification. The court made no finding of how many of those otherwise qualified voters could not obtain Act 23-acceptable identification. The court found that two electors, Ruthelle R. Frank and Ricky T. Lewis, had not secured photo identification cards due to problems in obtaining corrected birth certificates. The court also found that obtaining a certified copy of a birth certificate required payment to a government agency.
¶ 18 On November 20, 2013, after briefing was completed in the court of appeals and pursuant to Wis. Stat. § 809.61 and Wis. Const. Art. VII, § 3(3), we took jurisdiction of the appeal on our own motion.
¶ 19 Plaintiffs bring a facial challenge to Act 23 under the Wisconsin Constitution, arguing that the time, inconvenience and costs incurred in obtaining Act 23-acceptable photo identification impermissibly burden their right to vote. Plaintiffs do not assert that the actual presentation of photo identification violates their constitutional right to vote. Therefore, their challenge is made on a different legal basis than that of the plaintiffs in League of Women Voters.
¶ 20 Defendants maintain that Act 23 is constitutional. They argue that the burdens imposed on electors to obtain a DOT photo identification card are minimal when compared to the State's significant interest
¶ 21 Plaintiffs bring a facial challenge to Act 23. A facial challenge presents a question of law that we review independently, but benefitting from the discussion of the circuit court. Custodian of Records for the Legislative Tech. Servs. Bureau v. State, 2004 WI 65, ¶ 6, 272 Wis.2d 208, 680 N.W.2d 792; State v. Wood, 2010 WI 17, ¶ 15, 323 Wis.2d 321, 780 N.W.2d 63. Because this appeal follows a trial to the circuit court, we will uphold that court's historic findings of fact unless they are clearly erroneous. State v. Arias, 2008 WI 84, ¶ 12, 311 Wis.2d 358, 752 N.W.2d 748.
¶ 22 If we conclude that a voter regulation creates a severe burden on electors' right to vote, we will apply strict scrutiny to the statute, and conclude that it is constitutional only if it is narrowly drawn to satisfy a compelling state interest. See Wagner v. Milwaukee Cnty. Election Comm'n, 2003 WI 103, ¶ 77, 263 Wis.2d 709, 666 N.W.2d 816; see also Milwaukee Cnty. v. Mary F.-R., 2013 WI 92, ¶ 35, 351 Wis.2d 273, 839 N.W.2d 581. On the other hand, if we conclude that the burden on the electors' right to vote is not severe, the legislation will be presumed valid, and we will apply a rational basis level of judicial scrutiny in determining whether the statute is constitutional. Mary F.-R., 351 Wis.2d 273, ¶ 35, 839 N.W.2d 581.
¶ 23 Without question, the right to vote is a fundamental right and in many respects, it is protective of other rights. Frederick, 254 Wis. at 613, 37 N.W.2d 473; Clingman v. Beaver, 544 U.S. 581, 599, 125 S.Ct. 2029, 161 L.Ed.2d 920 (2005). As Justice Brennan explained so long ago, "the right to vote is `a fundamental political right, because [it is] preservative of all [other] rights.'" Storer v. Brown, 415 U.S. 724, 756, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974) (Brennan, J., dissenting) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 30 L.Ed. 220 (1886)).
¶ 24 Foundational legal principles are our starting point when fundamental rights are at issue. One such principle is that generally, statutes are presumed to be constitutional. Tammy W-G. v. Jacob T., 2011 WI 30, ¶ 46, 333 Wis.2d 273, 797 N.W.2d 854. However, the way in which we address this presumption may vary depending on the nature of the constitutional claim at issue. See League of Women Voters, 2014 WI 97, ¶ 16, ___ Wis.2d ___, 851 N.W.2d 302. The presumption of constitutionality is based on the court's respect for a co-equal branch of government, and it is meant to promote due deference to legislative acts. Dane Cnty. Dep't of Human Servs. v. Ponn P., 2005 WI 32, ¶ 16, 279 Wis.2d 169, 694 N.W.2d 344. In addition, given a choice of reasonable interpretations of a statute, we must select the interpretation that results in constitutionality. Am. Family Mut. Ins. Co. v. DOR, 222 Wis.2d 650, 667, 586 N.W.2d 872 (1998).
¶ 25 One who challenges a statute on constitutional grounds has a very heavy burden to overcome. Dowhower v. W. Bend Mut. Ins. Co., 2000 WI 73, ¶ 10, 236 Wis.2d 113, 613 N.W.2d 557. To succeed, the challenger must prove that the statute is unconstitutional beyond a reasonable doubt. State v. Cole, 2003 WI 112, ¶ 11, 264 Wis.2d 520, 665 N.W.2d 328. While this burden of proof is often associated with the requisite proof of guilt in a criminal case, in the context of a challenge to the constitutionality of a statute, the
¶ 26 When courts approach constitutional challenges that allege a burden on the right to vote, we focus first on how the right is burdened. The analysis by which we do so is more nuanced than that set out above. Decisions of the United States Supreme Court, as well as our own decisions that relate to voting, provide discussions helpful to determining how to structure our examination of the plaintiffs' claims and the circuit court's conclusions.
¶ 27 For example, in Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), the Supreme Court examined whether an Ohio statute's requirement that an independent candidate for President file his statement of candidacy and nominating petition more than five months before party candidates were required to file, placed an unconstitutional burden on voting and associational rights of the candidate's supporters under the First and Fourteenth Amendments. Id. at 786 n. 7, 790-91, 103 S.Ct. 1564.
¶ 28 The Supreme Court began by noting that "as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes." Id. at 788, 103 S.Ct. 1564 (quoting Storer, 415 U.S. at 730, 94 S.Ct. 1274). The Court then explained that voter regulation laws "inevitably affect[] — at least to some degree — the individual's right to vote and his right to associate with others for political ends. Nevertheless, the State's important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions." Id.
¶ 29 The Court said that there was no "litmus-paper test" that can separate valid from invalid voting regulations. Id. at 789, 103 S.Ct. 1564. Instead, a court must first consider "the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule." Id. The Court analyzed the facts supporting the alleged burdens on supporters of independent candidates and concluded that "[t]he inquiry is whether the challenged restriction unfairly or unnecessarily burdens the availability of political opportunity." Id. at 793, 103 S.Ct. 1564 (citation and internal quotation marks omitted).
¶ 30 The Court then took up the precise interests identified by the State: "voter education, equal treatment for partisan and independent candidates, and political stability," and examined the "legitimacy" of the stated interests and the extent to which the early filing deadline served those interests. Id. at 796, 103 S.Ct. 1564. The Court concluded that given modern communications, particularly those that occur in presidential elections, it was not clear that the early filing requirement aided voter education. Id. at 798, 103 S.Ct. 1564. The Court also concluded that there was "no merit in the State's claim that the early filing" assisted in treating partisan and independent candidates equally. Id. at 799.
¶ 32 In Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992), another case related to burdens on the right to vote, the Supreme Court continued to focus its discussion on the rights being burdened. There, Hawaii's lack of a provision to permit write-in voting was challenged as an impermissible burden on First and Fourteenth Amendment protections. Because only one candidate filed nomination papers for a state legislative seat, the petitioner wanted to mount a write-in campaign and was told that Hawaii made no provision for write-in candidates. Id. at 430, 112 S.Ct. 2059.
¶ 33 As the Court began its discussion, it explained that "Petitioner proceeds from the erroneous assumption that a law that imposes any burden upon the right to vote must be subject to strict scrutiny. Our cases do not so hold." Id. at 432, 112 S.Ct. 2059. The Court instructed that only "severe restrictions" by the State would require a compelling state interest and that "reasonable, nondiscriminatory" regulations were permissible. Id. at 434, 112 S.Ct. 2059.
¶ 34 The Court concluded that the burden imposed by Hawaii's lack of a provision for write-in voting was "slight"; therefore, the State "need not establish a compelling interest to tip the constitutional scales in its direction." Id. at 439, 112 S.Ct. 2059. The Court then applied rational basis scrutiny and concluded that "[t]he State has a legitimate interest ... and the write-in voting ban is a reasonable way of accomplishing this goal." Id. at 440, 112 S.Ct. 2059.
¶ 35 In Crawford, the Supreme Court decided a challenge to Indiana's statutory requirement that an elector identify himself by presenting a government-issued photo identification in order to vote. Crawford, 553 U.S. at 185, 128 S.Ct. 1610. The complainants, who represented among others, "groups of elderly, disabled, poor, and minority voters," alleged that the law "substantially burdens the right to vote in violation of the Fourteenth Amendment" and that it will "arbitrarily disfranchise qualified voters who do not possess the required identification and will place an unjustified burden on those who cannot readily obtain such identification." Id. at 187, 128 S.Ct. 1610.
¶ 36 In upholding the constitutionality of the Indiana statute, six members of the Court applied the Burdick/Anderson analysis, although the lead opinion, authored by Justice Stevens, and the concurrence, authored by Justice Scalia, applied the analysis somewhat differently. In the first step of that analysis, six justices examined whether requiring a government issued photo identification burdens the right to vote. Id. at 189-90, 128 S.Ct. 1610; id. at 204, 128 S.Ct. 1610 (Scalia, J., concurring). The lead opinion concluded that the requirement did not impose "excessively burdensome requirements on any class of voters" and that "the statute's broad application to all Indiana voters ... imposes only a limited burden on voters' rights." Id. at 202-03, 128 S.Ct. 1610 (citations and internal quotation marks omitted). The concurrence evaluated and upheld a single burden that was uniformly imposed on all voters, without regard to classifications of
¶ 37 Given that the burdens imposed were not "severe," both the lead opinion and the concurrence applied rational basis scrutiny in determining that the law was reasonably related to the State's legitimate interests and therefore, upheld the photo identification law. Id. at 204, 128 S.Ct. 1610; id. at 209, 128 S.Ct. 1610 (Scalia, J. concurring).
¶ 38 In Wagner, a Wisconsin case affecting voting, we applied the Burdick/Anderson burden analysis to a constitutional challenge to an enforced delay in becoming a candidate. Wagner, 263 Wis.2d 709, ¶¶ 1, 76, 666 N.W.2d 816. Judge Wagner claimed a deprivation of "liberty and equal protection of the law" under both the Wisconsin Constitution and the United States Constitution brought about by the enforced delay of his opportunity to be a candidate for a non-judicial office during the judicial term for which he had been elected.
¶ 39 We began by first considering "the character and magnitude of the asserted injury to the rights protected." Id., ¶ 77 (quoting Anderson, 460 U.S. at 789, 103 S.Ct. 1564). We then considered the "legitimacy and strength" of the State's specifically identified interests, that of maintaining the integrity and independence of the judiciary. Id., ¶ 83. In so doing, we imported the United States Supreme Court's method of focusing first on the burden placed on a right related to voting and from that determination, deciding what level of judicial scrutiny would be required. After concluding that the burden on the right to become a candidate was not severe, we applied rational basis scrutiny to the challenged limitation and concluded that the State's significant interest supported the delay. Id., ¶¶ 84-85.
¶ 40 We structure our discussion of plaintiffs' challenges to Act 23 consistent with the method of analysis employed in Burdick and Anderson, as we did in Wagner, where the challenge related to when a candidate could be submitted for voters' consideration and how the protections of both the Wisconsin Constitution and the United States Constitution were implicated. Id., ¶ 76. Accordingly, we first consider whether the burden on the right to vote is severe.
¶ 41 The record provides extensive testimony about trips to DMV offices by individuals who sought to obtain Act 23-acceptable photo identification for voting. Some of these trips were at quite a distance and many trips were repeats because either the line to obtain a photo identification card was too long or the applicant did not have the documents that DMV required in order to issue a photo identification card. Some witnesses testified that they had spent in excess of six hours in their efforts.
¶ 42 No one who testified thought the process of obtaining a DOT photo identification card was easy. However, all were successful, except two applicants, Ruthelle R. Frank and Ricky T. Lewis. They were unable to obtain photo identification cards because of problems with their birth certificates that may require court action to correct.
¶ 43 Few cases have parsed the constitutional significance of time and inconvenience burdens on the right to vote. However, Crawford did, to some extent, when it considered the burden that "life's vagaries" can impose and noted that:
Crawford, 553 U.S. at 197, 128 S.Ct. 1610. Crawford also went on to explain that "the inconvenience of making a trip to [a state motor vehicle office], gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting." Id. at 198, 128 S.Ct. 1610. We agree with that assessment.
¶ 44 Moreover, we note that photo identification is, to some extent, a condition of our times. Many important personal interactions are being modernized to require proof of identity with photo identification. For example, years ago, driver licenses did not require a photograph of the licensee, now Wisconsin driver licenses do. Photo identification is now required to purchase a firearm, to board a commercially operated airline flight, to enter some federal buildings and to obtain food stamps. Photo identification is often required to obtain a book from a public library, to cash a check, to purchase alcoholic beverages, to be admitted to many places of employment and
¶ 45 The federal government also has directed states to require photo identification in circumstances where the federal government was not involved in the past. For example, the REAL ID Act of 2005, Pub.L. 109-13, sets forth requirements for state driver licenses wherein underlying documents are required to obtain or renew a driver's license in a state that has implemented the REAL ID Act, as Wisconsin has.
¶ 46 We do not minimize the difficulties that some who applied for Act 23-acceptable photo identification have encountered in the past or will encounter in the future. However, the time and inconvenience incurred are not severe burdens on the right to vote. In many cases, these familiar burdens are no more of an imposition than is the exercise of the franchise itself, which can involve waiting in long lines and traveling distances in order to personally cast a ballot on election day.
¶ 47 In addition, we note that the NAACP and Voces are two of Wisconsin's most conscientious and capable organizations in regard to encouraging and facilitating voting. They will know what documentation DMV requires to issue DOT photo identification cards for voting and will work to assure that members of the African-American and Latino communities will be well prepared for their trips to DMV. NAACP and Voces have seen the power that the voting booth can give to their communities and will continue to work to assure that all eligible voters have the opportunity to exercise their franchise.
¶ 48 The Government Accountability Board (GAB) also is poised to assist in educating the electors about how to obtain a DOT-issued photo identification card. The GAB received legislative approval for a $1.9 million appropriation to implement Act 23 and to educate Wisconsin voters on where and how to obtain Act 23-acceptable photo identification. Although some of these efforts have been put on hold due to circuit court injunctions, the GAB remains a significant resource for information and education.
¶ 49 We now turn to the other burden that the plaintiffs identified and the circuit court found, which are the costs incurred in obtaining a DOT-issued photo identification card for voting. Some costs involved payments for transportation to DMV offices or time taken from work. They are not costs paid to a government agency nor are they regulated by Act 23. In some respects, they are similar to those costs incurred in casting an in-person ballot. They are not a severe burden on the right to vote.
¶ 50 Plaintiffs also provided evidence of payments to government agencies to obtain documents required by DMV to issue
¶ 51 Act 23 provides that DOT "may not charge a fee to an applicant for the initial issuance, renewal, or reinstatement of an identification card" when "the applicant requests that the identification card be provided without charge for purposes of voting." Wis. Stat. § 343.50(5)(a)3. This provision prohibits DOT from causing any elector, rich or poor, to pay a fee as a condition to voting.
¶ 52 However, plaintiffs incurred costs due to payments to government agencies for documents that DMV required in order to issue DOT photo identification cards for voting. These costs were not paid to DOT or its division, DMV; they were paid to other government agencies. One example of such a cost is the payment for certified copies of birth certificates that DMV has required as proof of name, date of birth and citizenship.
¶ 53 Payments required to be made to a Virginia government agency in order to exercise the right to vote were held unconstitutional in Harper, where a $1.50 poll tax was examined. The Supreme Court concluded that "payment of any fee" to a Virginia government entity could not be required as a condition of voting. Harper, 383 U.S. at 666, 86 S.Ct. 1079. Although the Court talked about the uneven impact such a fee may have on those with limited financial resources, the Court struck down the fee for all voters. Id.
¶ 54 More recently, state supreme courts have examined claims that fees paid to state agencies to obtain documents required as part of the application process for state photo identification cards violated electors' constitutional rights. For example, in In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 479 Mich. 1, 740 N.W.2d 444 (2007), the Michigan Supreme Court considered a facial challenge to a Michigan statute that required potential voters to identify themselves with a government-issued photo identification card. Id. at 451. As part of its discussion, the court examined whether ancillary charges for documents necessary to obtaining the required photo identification card operated as a de facto poll tax that violated the Michigan Constitution or United States Constitution. Id. at 463-66.
¶ 55 In concluding that the Michigan statute was not a de facto poll tax, the court explained:
Id. at 464-65. Therefore, the Michigan statute differed from the Wisconsin law
¶ 56 In City of Memphis v. Hargett, 414 S.W.3d 88 (Tenn.2013), the Tennessee Supreme Court considered a Tennessee statute that required, with limited exceptions, electors to provide photographic proof of identity. Id. at 92. Under the Tennessee law, an elector who attempted to vote in person, but was unable to produce valid evidence of identification and did not fall within the exceptions to the law, may cast a provisional ballot, which would be counted if the voter presented valid proof of identity within two days after the election. Id. at 93.
¶ 57 Two voters presented non-compliant photo identifications issued by the City of Memphis and cast provisional ballots when their identifications were not accepted. Id. at 93-94. Those voters and the City then challenged the statute, bringing both facial and as-applied constitutional challenges. Id. at 94-95. In upholding the constitutionality of the Tennessee statute against the challenges, part of which contended that the law amounted to a de facto poll tax, the court pointed out that:
Id. at 106 (emphasis added) (citation omitted). There, indigency operated as an exception to payment of direct and ancillary fees while preserving the right to vote.
¶ 58 In Crawford, the United States Supreme Court also mentioned ancillary fees. It noted that, "Indiana, like most States, charges a fee for obtaining a copy of one's birth certificate. This fee varies by county and is currently between $3 and $12." Crawford, 553 U.S. at 198 n. 17, 128 S.Ct. 1610. However, the Court did not consider whether an ancillary payment to an Indiana government agency in order to obtain a birth certificate was a de facto poll tax because "the record does not provide even a rough estimate of how many indigent voters lack copies of their birth certificates." Id. at 202 n. 20, 128 S.Ct. 1610. Additionally, indigent electors could avoid paying that fee by casting a provisional ballot and then executing an affidavit before the circuit court clerk within ten days of the election. Id. at 186, 128 S.Ct. 1610.
¶ 59 The voter identification laws of Michigan, Tennessee and Indiana all included a provision by which a voter could cast a ballot without paying money to a government agency. Act 23 similarly provides that DOT "may not charge a fee to an applicant for the initial issuance, renewal,
¶ 60 Requiring payment to a government agency to obtain a DOT photo identification card for voting puts the administrative regulation on a collision course with Act 23's directive that DOT "may not charge a fee." It also would be a severe burden on the right to vote.
¶ 61 Why is this burden severe? The usual payment of $20 for a certified copy of a birth certificate is modest and does not approach the sizeable costs parsed in other cases that bear on voting. See Lubin v. Panish, 415 U.S. 709, 710, 719, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974) (concluding that $701.60 filing fee was unconstitutional); see also Bullock v. Carter, 405 U.S. 134, 145, 149, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972) (explaining that a primary filing fee that at times reached $8,900 was constitutionally impermissible).
¶ 62 The modest fees for documents necessary to prove identity would be a severe burden on the constitutional right to vote not because they would be difficult for some to pay. Rather, they would be a severe burden because the State of Wisconsin may not enact a law that requires any elector, rich or poor, to pay a fee of any amount to a government agency as a precondition to the elector's exercising his or her constitutional right to vote. See Harper, 383 U.S. at 666, 86 S.Ct. 1079 (concluding that the "payment of any fee [may not be] an electoral standard").
¶ 63 Given our conclusion that it would be contrary to Act 23 and a severe burden on the right to vote if an elector were obligated to pay a fee to a government agency in order to obtain documents required for a DOT photo identification card to vote, we now consider whether a saving construction that is consistent with the statutory mandate and the Wisconsin constitution is possible.
¶ 64 We do so in order to avoid a constitutional conflict. See, e.g., Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 503, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001) (avoiding an interpretation of
¶ 65 Here, the potential to impose a severe burden on the right to vote is not stated in Act 23 itself. Rather, the flaw is in the administrative rules that DMV has applied to applicants for DOT photo identification cards to vote. Accordingly, we do not initially weigh the burden identified, i.e., the fees paid to government agencies to obtain documents that DMV has required prior to issuing DOT photo identification cards for voting, because a saving construction of the administrative rule must be considered first.
¶ 66 Wisconsin statutes and administrative regulations that address the same subject matter must be construed in a way that harmonizes them. Cnty. of Milwaukee v. Superior of Wisconsin, Inc., 2000 WI App 75, ¶ 21, 234 Wis.2d 218, 610 N.W.2d 484. Here, Wis. Admin. Code § Trans 102.15(3)(a) requires documents for "Proof of Name and Date of Birth," that other statutes, such as Wis. Stat. § 69.22, require payment to provide. This creates a conflict with Act 23's directive to provide DOT photo identification cards for voting without charge.
¶ 67 However, DMV administrators have discretion under Wis. Admin. Code § Trans 102.15(3)(b) to excuse the failure to provide documents referenced in § Trans 102.15(3)(a) when DOT photo identification cards for voting are requested. Section Trans 102.15(3)(b) and (c) provide:
¶ 68 Because the exercise of a DMV administrator's discretion has constitutional ramifications when a DOT photo identification card for voting is requested, we note that we are obliged to choose the interpretation of Wis. Admin. Code § Trans 102.15(3)(b) that does not conflict with the Wisconsin Constitution. See Am. Family, 222 Wis.2d at 667, 586 N.W.2d 872.
¶ 69 In order to harmonize the directive of Wis. Stat. § 343.50(5)(a)3.,
¶ 70 Stated otherwise, to invoke an administrator's discretion in the issuance of a DOT photo identification card to vote, an elector: (1) makes a written petition to a DMV administrator as directed by Wis. Admin. Code § Trans 102.15(3)(b) set forth above; (2) asserts he or she is "unable" to provide documents required by § Trans 102.15(3)(a) without paying a fee to a government agency to obtain them; (3) asserts those documents are "unavailable" without the payment of such a fee; and (4) asks for an exception to the provision of § Trans 102.15(3)(a) documents whereby proof of name and date of birth that have been provided are accepted. § Trans 102.15(3)(b) and (c). Upon receipt of a petition for an exception, the administrator, or his or her designee, shall exercise his or her discretion in a constitutionally sufficient manner.
¶ 71 We further conclude that filing a Wis. Admin. Code § Trans 102.15(3)(b) petition for an exception with a DMV administrator, as set forth above, is not a severe burden on the right to vote. Accordingly, because the burdens of time, inconvenience and costs upon electors' right to vote are not severe under our interpretation of § Trans 102.15, we apply a rational basis level of scrutiny in determining whether Act 23 is constitutional. Mary F.-R., 351 Wis.2d 273, ¶ 35, 839 N.W.2d 581; Wagner, 263 Wis.2d 709, ¶ 84, 666 N.W.2d 816. As the Supreme Court has explained, it is erroneous to assume that a law that regulates voting must be subject to strict scrutiny. Burdick, 504 U.S. at 432, 112 S.Ct. 2059. Strict scrutiny applies only when a statute imposes a severe burden on the exercise of the franchise. Id. at 434, 112 S.Ct. 2059.
¶ 72 Defendants have identified state interests of protecting the integrity and reliability of the electoral process, maintaining public confidence in election results and preventing voter fraud as significant and compelling interests that underlie Act 23.
¶ 73 It should be beyond question that the State has a significant and compelling interest in protecting the integrity and reliability of the electoral process, as well as promoting the public's confidence in elections. Crawford, 553 U.S. at 196, 128 S.Ct. 1610. As we learn of elections that are currently occurring around the world in troubled nations, the integrity and reliability of the electoral process and the public's
¶ 74 The circuit court found there was no evidence of "recent" voter impersonation fraud in Wisconsin. However, that finding cannot overcome the State's interest in preventing voter fraud.
¶ 75 We agree that the identified interests are significant and compelling. Id. (explaining that the "State indisputably has a compelling interest in preserving the integrity of its election process") (quoting Eu v. San Francisco Cnty. Democratic Cent. Comm., 489 U.S. 214, 231, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989) and that "[c]onfidence in the integrity of our electoral process is essential to the functioning of our participatory democracy"). However, because the burden on exercise of the franchise is not severe, the defendants need show only a legitimate state interest and that requiring elector identification by the use of a government-issued photo identification is a reasonable means of serving that interest. See Wagner, 263 Wis.2d 709, ¶¶ 77-78, 666 N.W.2d 816; Crawford, 553 U.S. at 196-97, 208, 128 S.Ct. 1610 (Scalia, J., concurring); Burdick, 504 U.S. at 440, 112 S.Ct. 2059.
¶ 76 We conclude that the use of Act 23-acceptable photo identification is a reasonable means of furthering the stated interests. It may help to assure the public that the electoral process is followed and that results of elections held in Wisconsin validly represent the will of the electors. In addition, those who would attempt to defraud the electors through misrepresentations to election officials will find that task more difficult.
¶ 77 We conclude that the burdens of time and inconvenience associated with obtaining Act 23-acceptable photo identification are not severe burdens on the right to vote and do not invalidate the law. The burdens of time and inconvenience of obtaining Act 23-acceptable photo identification are in many respects no more of an imposition than is casting an in-person ballot on election day. Furthermore, photo identification is a condition of our times where more and more personal interactions are being modernized to require proof of identity with a specified type of photo identification before proceeding.
¶ 78 However, to require payments to government agencies for documents necessary to obtain DOT photo identification cards for voting would severely burden the right to vote because it would condition that right on payment to a government agency. Act 23 explicitly prohibits payment to a government agency to obtain a DOT photo identification card for voting.
¶ 79 The payments at issue arise under Wisconsin administrative rules that implement Act 23. Therefore, we construed those rules and explained how the discretion
¶ 80 Because Act 23 does not place a severe burden on the exercise of the franchise, we apply rational basis scrutiny and conclude that Act 23 is reasonably related to the State's significant interests. Accordingly, we reverse the judgment of the circuit court and vacate all injunctions the court issued.
The judgment of the circuit court is reversed and the permanent and temporary injunctions are vacated.
ABRAHAMSON, C.J., and CROOKS, BRADLEY, JJ., dissent.
SHIRLEY S. ABRAHAMSON, Chief Justice (dissenting).
¶ 81 I have written in dissent in League of Women Voters v. Walker, 2014 WI 97, ___ Wis.2d ___, 851 N.W.2d 302. That dissent also applies to the instant case. Indeed I incorporate my entire dissent in League of Women Voters in this dissent. The instant case, like League of Women Voters, is a facial challenge to Act 23, although it presents a richer factual record than does League of Women Voters.
¶ 82 Like the majority opinion
¶ 83 I write separately, however, because as I wrote in my dissent in League of Women Voters, the NAACP opinion is confused and confusing regarding the standard of review.
¶ 84 Nevertheless, whether I apply the Burdick/Anderson standard of review or any variation thereof or the standard in Wisconsin's case law regarding review of legislation regulating voting rights, I conclude that Act 23 is unconstitutional. The State "may not burden the right to vote merely by invoking abstract interests, be they legitimate, or even compelling, but must make a particular, factual showing that threats to its interests outweigh the particular impediments it has imposed. The State has made no such justification here, and as to some aspects of its law, it has hardly even tried."
¶ 85 Like Justice Crooks' dissent, I would hold that invalidating Act 23 is the only appropriate remedy. This court should not rule on administrative regulations not before us or rewrite a statute. For the foregoing reasons, I dissent.
N. PATRICK CROOKS, J. (dissenting).
¶ 86 The question of whether Act 23 violates the Wisconsin Constitution is at the intersection of profound democratic principles: the right of qualified Wisconsin citizens to vote, as explicitly guaranteed by the Wisconsin Constitution,
¶ 87 The United States Supreme Court's decision in Crawford v. Marion County Election Board,
¶ 88 The majority opinion claims to approach the plaintiffs' constitutional challenge to Act 23 as a purely facial challenge.
¶ 89 I cannot agree with the majority opinion's characterization and analysis of the plaintiffs' challenge. The majority incorrectly characterizes the challenge as a purely facial challenge. It fails to apply the Anderson/Burdick framework correctly. It improperly relies on poll tax case
¶ 90 The appropriate framework to analyze the plaintiffs' challenge to Act 23 is the modified facial challenge approach, which the United States Supreme Court has applied
¶ 91 A modified facial challenge is appropriate in this type of case because neither a purely facial challenge nor an as-applied challenge is practical in these circumstances. A purely facial challenge requires that a party prove that a law is unconstitutional under all circumstances.
¶ 92 Under a proper application of the Anderson/Burdick framework, a modified facial challenge to Act 23's constitutionality succeeds in establishing a violation of the Wisconsin Constitution. The only proper remedy is invalidation of the law. This is because Act 23 imposes severe burdens on a substantial number of eligible Wisconsin voters who do not currently possess an Act 23-compliant form of identification, and that burden cannot be remedied by this court. First, and most importantly, even though the identification card itself can be obtained at no cost, there are costs associated with acquiring the underlying documents required to obtain an identification card. Those costs impose a severe burden on certain eligible Wisconsin voters, both those born in Wisconsin and those born in other states and other countries. Second, for certain voters the time and effort required to obtain Act 23-compliant identification adds to the severity of the burden.
¶ 93 The majority recognizes that a severe cost burden exists, but instead of considering such burden in a straightforward manner under the well-established Anderson/Burdick framework, it applies poll tax analysis and crafts a remedy that purports to alleviate the burden imposed by Act 23. The majority concludes that the costs associated with obtaining a free voter identification card are the functional equivalent of an unconstitutional poll tax. No party or amicus brief advanced this argument. Instead all recognized the Anderson/Burdick test as the applicable framework. That test requires that a heightened level of scrutiny apply to any voting regulation that imposes a severe burden.
¶ 94 In contrast to my approach, the majority opinion makes a radical departure from the well-established Anderson/Burdick framework. This is because instead of balancing the benefits and burdens of Act 23 as the Anderson/Burdick framework instructs and reaching the conclusion compelled by the record, the majority intervenes to lessen the severity of the burden by crafting a remedy that allows for individuals to obtain a certified copy of their birth certificate, a document necessary to obtain a free voter identification card, free of charge. Furthermore, the majority opinion's remedy reworks the framework in which Act 23 operates, which is not the court's role. It is the legislature and not this court that must craft a constitutional voter identification law considering the framework in which that law operates, policy objectives, and
¶ 95 The majority opinion asserts that it is addressing a purely facial challenge to Act 23.
¶ 96 In certain contexts, the United States Supreme Court has recognized the existence of a modified approach to facial challenges.
¶ 97 The United States Supreme Court used this type of analysis in Citizens United v. Federal Election Commission, 558 U.S. 310, 333-35, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). There, the Court reasoned, "In the exercise of its judicial responsibility, it is necessary then for the Court to consider the facial validity of § 441b. Any other course of decision would prolong the substantial, nationwide chilling effect caused by § 441b's prohibitions on corporate expenditures."
¶ 98 A discussion of purely facial constitutional challenges and as-applied constitutional challenges demonstrates why the modified facial approach is appropriate in this case. A purely facial challenge requires that the party challenging the law prove, beyond a reasonable doubt, that the law is unconstitutional under all circumstances.
¶ 99 An as-applied challenge, in contrast, determines whether a law violated the constitutional rights of a particular person under the facts presented.
¶ 100 The majority opinion's claim that it is treating this challenge as a purely facial challenge upsets the well-drawn distinction between purely facial and as-applied challenges. Treating this as a purely facial challenge is not appropriate because the plaintiffs do not actually allege that Act 23 is unconstitutional under all applications. They acknowledge that the photo identification requirements of the law could be constitutionally applied to any eligible Wisconsin voter who already possesses Act 23-compliant identification.
¶ 101 Similarly, because the challenge here alleges a potential burden to hundreds of thousands of eligible voters,
¶ 102 This court should look to the United States Supreme Court's modified facial challenge approach, which stems from the First Amendment overbreadth doctrine because it fits equally well in the election regulation context. As I have previously discussed, this approach makes sense because of the problems associated with treating the plaintiffs' challenge to Act 23 as either a purely facial challenge or as an as-applied challenge.
¶ 103 In addition to these practical reasons, a modified facial challenge approach to laws that allegedly burden the right to vote is justified because of the importance of the right as well as the Anderson/Burdick framework in which voting regulations are analyzed.
¶ 104 I agree with the majority opinion
¶ 106 The discussion of poll tax case law is misplaced for two reasons. First, the plaintiffs did not challenge Act 23 as an unconstitutional de facto poll tax; therefore, this issue was not briefed or argued by the parties. Second, and more importantly, the plaintiffs' challenge, brought under the Anderson/Burdick framework, requires this court to carefully evaluate the cost burden that Act 23 places on eligible voters. The Anderson/Burdick framework, rather than poll tax analysis, is appropriate because the photo identification requirements at issue are related to election qualifications.
¶ 107 Even if I were to assume that poll tax analysis applied to this case, I am not persuaded that the majority opinion's remedy cures the unconstitutionality of Act 23. Anyone who thinks Act 23's constitutional problem is that it creates a de facto poll tax should want to guarantee that such a de facto poll tax is not imposed on any eligible voter. The majority concludes that Act 23 imposes a de facto poll tax; however, there is no support in the law for the proposition that a court may leave to the discretion of a governmental agency whether to approve an exception to a poll tax. If the majority leaves in place the discretion of DMV administrators to issue or refuse to issue Act 23-compliant identification where a fee is required for supporting
¶ 108 If, however, the majority opinion is requiring DMV administrators to issue photo identification to individuals who cannot afford to obtain underlying documentation,
¶ 109 Therefore, rather than relying on the majority opinion's poll tax analysis, I would apply the well-established Anderson/Burdick framework, which requires the conclusion that Act 23 places a severe burden on a substantial number of eligible Wisconsin voters. The severity of the burden dictates that this court may uphold Act 23 only if it is narrowly tailored to achieve a compelling governmental interest. The record demonstrates that Act 23 is not narrowly tailored to the state's goals of reducing voter fraud or increasing the public's confidence in elections because the Act is unlikely to further either of these goals in any meaningful way. Therefore, Act 23 is unconstitutional.
¶ 110 The plaintiffs allege that the costs, time, and effort associated with obtaining an Act 23-compliant form of identification impose a significant burden on a substantial number of eligible Wisconsin voters. I agree with the circuit court that these burdens are severe.
¶ 111 The circuit court found that "[a] reasonable, reliable and accurate estimate of the number of people eligible to vote in Wisconsin who do not have a form of identification that would permit them to vote under Act 23 is 333,276."
¶ 112 The circuit court found Professor Mayer and Professor Hood to be qualified experts in terms of establishing the number of eligible Wisconsin voters who lack Act 23-compliant identification. In contrast, the circuit court did not find Dr. Morrison qualified to give expert testimony on the number of eligible voters in Wisconsin lacking Act 23-compliant identification. Although the circuit court considered the testimony of both Professor Mayer and Professor Hood, the circuit court ultimately relied on Professor Mayer's expert testimony.
¶ 113 As the majority opinion correctly states, this court will uphold a circuit court's findings of fact unless they are clearly erroneous.
¶ 114 Professor Mayer utilized the "exact-match" method to estimate the number of registered voters who lacked Act 23-compliant identification. Under this method, Professor Mayer matched the records of registered voters appearing in the Statewide Voter Registration System (SVRS), maintained by the Government Accountability Board (GAB), with records of individuals listed as having either a Wisconsin driver's license or a Wisconsin identification card in a Department of Transportation (DOT) database. The comparison of the SVRS database with the DOT database allowed Professor Mayer to form an initial estimate of the total number of registered voters who lack two of the primary forms of Act 23-compliant identification. Professor Mayer also estimated the number of non-registered, but otherwise eligible, voters who lacked proper identification and the number of individuals who possessed student, tribal, or military identification that would allow them to vote under Act 23.
¶ 115 Professor Mayer's estimates controlled for individuals who appeared in the DOT database but who had either moved out of state or who had passed away. For example, he utilized census data from the American Community Survey (ACS) to estimate that 277,000 individuals listed as having a Wisconsin driver's license in DMV records had moved out of state. Professor Mayer also relied on a sample of obituaries and the rate at which licenses and identification cards expire each year to determine that approximately 114,690 individuals listed in the DOT database as having photo identification are actually deceased. Finally, Professor Mayer removed duplicate listings of individuals who appeared in the DOT database as having both a driver's license and a state identification card.
¶ 116 Professor Mayer presented clear and concise testimony that relayed his expert report findings to the circuit court. These findings pointed out a variety of imperfections with the DOT database upon which Professor Mayer and Professor Hood relied. In contrast to Professor Mayer, Professor Hood was unable to provide an estimate of the number of eligible Wisconsin voters who lack Act 23-compliant identification. In reference to relying on Professor Mayer instead of Professor Hood, the circuit court logically explained that Professor Hood did not "adequately explain or justify [his] conclusion that the Wisconsin data available, when evaluated using the `exact [m]atch' method was not sufficiently reliable to estimate the number of eligible voters who lack the required Photo ID."
¶ 117 Furthermore, the circuit court was not clearly erroneous in finding that the state's other expert witness, Dr. Morrison, did not "possess sufficient training or experience to prepare or to offer reliable expert testimony as to election procedures generally nor, specifically, the proportion of persons eligible to vote in Wisconsin who lack a Photo ID required by Act 23." The circuit court identified several problems with Dr. Morrison's testimony. These included Dr. Morrison's failure to consider a "significant source of relevant, reliable information, the SRVS listing of eligible Wisconsin voters" and his failure to "recognize or take into account the limitations of the WisDOT data."
¶ 118 Although the circuit court found that an estimated 333,276 eligible Wisconsin voters do not possess Act 23-compliant identification, this finding alone does not indicate the severity of the burden that individuals would face in obtaining a compliant
¶ 119 The most significant burden that Act 23 imposes on individuals lacking Act 23-compliant identification is the cost burden that results from the administrative framework in which Act 23 operates. As the majority opinion explains, typically, an individual must produce a certified copy of his or her birth certificate, among other documents, to receive a no-cost identification card for voting purposes.
¶ 120 The circuit court found that "[t]he cost and the difficulty of obtaining documents necessary to apply for a DMV Photo ID is a substantial burden which falls most heavily upon low income individuals."
¶ 121 The circuit court specifically noted the cost burden that Act 23 imposed upon several different individuals in its decision and order. For example, the experiences of Ruthelle R. Frank and Ricky T. Lewis indicate that they would be forced to incur significant costs to correct errors in their birth certificates to obtain Act 23-compliant photo identification. At the time Lewis sought photo identification, his affidavit indicated that his sole income is his fixed veteran's pension of $986 per month and that he has no savings.
¶ 122 The record also contains numerous affidavits and depositions from individuals regarding the cost burden that Act 23 imposes. The majority of these individuals have low incomes. For example, Ndidi Brownlee's deposition indicates that she has no savings and that she lives month to month on her income. Johnnie Garland's affidavit states that she relies on Social Security benefits that total $678 per month to cover her essential expenses and that she was required to pay $28 to obtain her birth certificate from another state. Kristen Green was unemployed at the time she obtained photo identification, and her deposition indicates that she could not afford the extra bus fare she needed to travel to a DMV office. Danettea Lane's affidavit indicates that she had to pay $20 to obtain her birth certificate and that she supports herself and her four children on $608 per month. In addition, Willie Watson and Eldridge King both indicated in their depositions that they lived on fixed amounts of $683 per month and $1000 per month, respectively.
¶ 123 In Frank v. Walker, the United States District Court for the Eastern District of Wisconsin recently considered a challenge to Act 23 brought under the Fourteenth Amendment and the Federal Voting Rights Act.
¶ 124 Based on the record in this case, which is remarkably similar to the record before the district court in Frank, it was not clearly erroneous for the circuit court to conclude that Act 23 places severe cost burdens on a substantial number of eligible Wisconsin voters who lack Act 23-compliant identification.
¶ 125 Contrary to the majority opinion, I conclude that the time spent and difficulties encountered by individuals trying to obtain Act 23-compliant identification are significant and contribute to the severity of
¶ 126 Here, the circuit court found, "Procuring a DMV Photo ID can easily be a frustrating, complex, and time-consuming process." It further concluded that "[t]he cost and the difficulty of obtaining documents necessary to apply for a DMV Photo ID is a significant burden upon the opportunity of Wisconsin citizens to vote."
¶ 127 The circuit court relied on affidavits and depositions from numerous individuals who described the time spent and difficulties incurred in obtaining or attempting to obtain Act 23-compliant identification. In its decision and order, the circuit court specifically relied upon the experiences of Ruthelle R. Frank and Ricky T. Lewis who each had frustrating experiences in attempting to obtain photo identification. Errors on birth certificates caused this difficulty and prevented both individuals from obtaining photo identification. Lewis estimated in his deposition that he spent 10 to 15 hours attempting to obtain identification. The circuit court also relied upon the experiences of Sequoia Cole, Brittany Cramer, and Joel Torres who all explained that obtaining photo identification took a substantial amount of time — up to 6.5 hours in one case. A majority of the individuals cited by the circuit court made multiple trips to DMV service centers and other state agencies in attempting to obtain Act 23-compliant photo identification.
¶ 128 In addition to the individuals cited in the circuit court's decision, the record also contains a number of other affidavits and depositions that describe the time and difficulty burden that Act 23 imposes. For example, Ndidi Brownlee spent several hours traveling to and then waiting at the DMV. Cheryl Edwards' affidavit states that she spent roughly nine hours assisting family members who needed to obtain photo identification for voting purposes. Kristen Green's affidavit indicates that she made multiple trips to the DMV to obtain photo identification and that her combined trips totaled almost five hours. Danettea Lane's affidavit states that she spent nearly 10 hours during the process of obtaining identification. Mary McClintock, who uses a wheelchair, was required to arrange special transportation and spent approximately nine hours in the process of obtaining identification. The record also reflects that Jennifer Platt's trip to the DMV took three hours. Special Simmons stated in his affidavit that it took him three hours to obtain identification. Willie Watson spent approximately four hours arranging transportation that would allow him to apply for identification. John Wolfe's affidavit and deposition testimony indicated that the closest DMV was 30 to 40 miles out of his way.
¶ 129 As the previous discussion demonstrates, the record fully supports the circuit court's conclusions pertaining to the time, effort, and difficulty burdens. Therefore, the circuit court's determination that the difficulties imposed by Act 23 result in a severe burden was not clearly erroneous.
¶ 130 In coming to the opposite conclusion, the majority opinion notes that photo identification is part of the reality of daily
¶ 131 The district court in Frank, relying on the testimony of numerous individuals lacking Act 23-compliant identification, also specifically considered the time and difficulty burden imposed by Act 23. In doing so, it considered the number of DMV service centers in the state and noted that only two centers in the entire state are open past 5 p.m. and that only one DMV service center in the state is open on the weekend.
¶ 132 The district court also heard testimony that indicated that not all DMV centers are accessible by public transportation.
¶ 133 The majority opinion's reliance on the Crawford
¶ 134 In sum, both the record in this case and the Frank decision support the circuit court's finding that the time, effort, and difficulty burden that Act 23 imposes is severe.
¶ 135 The circuit court's finding that Act 23 places a severe burden on a substantial number of eligible Wisconsin voters who lack Act 23-compliant identification must be upheld; therefore, the Act is constitutional only if it is narrowly tailored to achieve a compelling state interest.
¶ 136 The state asserts that Act 23 has two primary and compelling benefits: the reduction of voter fraud and the increase of voter confidence in the outcome of elections. In considering these alleged benefits, the circuit court found that "[t]he Photo ID requirements of Act 23 are unlikely to protect the electoral process" and "[t]he Photo ID requirements of Act 23 are not narrowly tailored to achieve a goal of voter verification." Specifically, the circuit court found,
¶ 137 Finally, in referencing voter fraud and summarizing its holding, the circuit court stated,
The circuit court's findings in regard to the lack of benefits associated with Act 23 and its determination that the Act is not narrowly tailored to achieve these benefits are supported by the record, and thus, are not clearly erroneous; therefore, the circuit court's findings must be upheld.
¶ 138 In regard to the allegation that Act 23 reduces voter fraud, the circuit court heard testimony regarding incidents of voter fraud and considered the current penalties in place to deter voter fraud.
¶ 139 The circuit court heard testimony from Professor Mayer regarding a lack of voter fraud in Wisconsin generally as well as a lack of impersonation voter fraud, which Act 23 is most likely to prevent. Professor Mayer based his testimony on academic studies of voter fraud, as well as studies conducted in 2004 and 2008 of voter fraud in Wisconsin. He concluded and testified that "there is virtually no evidence at all that in-person voter impersonation at the polling places occurs with any frequency, if it occurs at all."
¶ 140 Professor Mayer also reviewed incidents of voter fraud detected by a 2008 Department of Justice (DOJ) investigation. The DOJ investigation followed the 2008 presidential election. As a result of the investigation, the State brought charges in 20 cases of election fraud. These charges included eleven cases of felons voting, two double voting cases, six cases of misconduct related to voter registration, and one fraudulent case of absentee voting. This investigation resulted in no charges of impersonation voter fraud.
¶ 141 Professor Mayer testified that the photo identification requirements of Act 23 would not have prevented any of the types of voter fraud identified in the 2008 DOJ investigation. For example, the photo
¶ 142 Furthermore, the circuit court found that "a comprehensive study of voter attitudes has found that state photo ID requirements appear to have no effect upon public confidence in the process." In reaching this conclusion, the circuit court relied on Professor Mayer's January 16, 2011, report in which he reviewed the findings of the Cooperative Congressional Election Study (CCES). Professor Mayer's report explains a study of the CCES, which stated, "ID laws will have little or no effect on the confidence in the electoral system or the belief in the incidence of fraud. Those beliefs ... are not different when a stricter ID law is in place and enforced than when less invasive voter-authentication methods are used." There is nothing in the record that disputes Professor Mayer's interpretation of the CCES or the circuit court's finding that Act 23 does not increase voter confidence in election outcomes.
¶ 143 The majority opinion asserts that the "State has a significant and compelling interest in protecting the integrity and reliability of the electoral process, as well as promoting the public's confidence in elections."
¶ 144 Consideration of the proper remedy is appropriate after considering the burdens of Act 23, the applicable level of judicial scrutiny, and the benefits of the Act. In the midst of discussing the Anderson/Burdick framework, however, the majority opinion interprets administrative rules in a way that allows for an exception to the cost of obtaining a certified copy of a birth certificate for some individuals. There is no dispute that a court must determine whether legislation challenged as unconstitutional may be interpreted in a way to avoid invalidation.
¶ 145 The majority opinion directs DMV administrators to deem any document requiring a payment to a government agency "unavailable" for purposes of the Wisconsin Administrative Code § Trans 102.15(3)(b) exception.
¶ 146 The conclusion that the majority opinion cannot direct agency administrators who are non-parties to this case is supported by Wisconsin civil procedure and our case law. For example, Wis. Stat. § 801.05 governs personal jurisdiction and provides that a court has "jurisdiction over a person served in an action...."
In addition, "[i]f a person is not named in a lawsuit, that person is a stranger to the court and cannot be bound by it."
¶ 147 The majority's approach is also inconsistent with how courts typically interact with administrative agencies. For example, courts tasked with reviewing agency actions must adhere to strict statutory guidelines that allow the court to maintain subject matter jurisdiction.
¶ 148 Contrary to the majority opinion, I conclude that the appropriate remedy is invalidation of Act 23. If the legislature chooses, it may enact a constitutional version of Act 23 considering the administrative framework in which the Act functions — that is, one that does not severely burden any eligible Wisconsin voter. To avoid the unconstitutionality of the majority's remedy and put in place a voter identification law that is unquestionably enforceable, the legislature should look to Indiana's voter identification law, which
¶ 149 Constitutional issues that "are peppered with political perceptions and emotionally laden views" require courts to exercise judicial restraint.
¶ 150 In discussing remedy in Frank the district court came to a similar conclusion. The district court remarked,
¶ 151 A Wisconsin statute allows unconstitutional portions of laws to be severed under certain circumstances;
¶ 152 The United States Supreme Court has explained that courts must avoid judicial legislation and should avoid editing statutory text.
¶ 153 After considering these principles and the inability of this court to sever a specifically unconstitutional portion of Act 23 that would save the law, I conclude that the only applicable remedy is invalidation of Act 23. Act 23 functions within a regulatory framework established by the Wisconsin legislature, which imposes a cost for birth certificates. I agree with the majority opinion that the legislature could eliminate this cost.
¶ 154 I cannot agree with the majority opinion's characterization and analysis of the plaintiffs' challenge. The majority incorrectly characterizes the challenge as a purely facial challenge. It fails to apply the Anderson/Burdick framework correctly. It improperly relies on poll tax case law. Even if I were to assume that poll tax analysis applied, the majority's attempt to alleviate the de facto poll tax for some eligible Wisconsin voters results in an unworkable solution that fails to cure the unconstitutionality of Act 23. Specifically, the majority opinion's remedy appears to leave in place the discretion of DMV administrators to issue or refuse to issue Act 23-compliant identification where a fee is required for supporting documents. If the majority opinion leaves in place the discretion of DMV administrators to issue exceptions to those burdened by the cost of obtaining underlying documentation, it fails to guarantee constitutional protections against poll taxes. On the other hand, if the majority opinion requires DMV administrators to issue photo identification cards to individuals who are burdened by the cost of obtaining required underlying documentation, then it is directing a non-party to take specific action, which it has no authority to do. In sum, the remedy imposed by the majority, under either approach, is flawed. Furthermore, its remedy impinges on the legislature's
¶ 155 The United States Supreme Court's decision in Crawford v. Marion County Election Board,
¶ 156 The question of whether Act 23 violates the Wisconsin Constitution is at the intersection of profound democratic principles: the right of qualified Wisconsin citizens to vote, as explicitly guaranteed by the Wisconsin Constitution, and the undisputed principle that the state has a legitimate interest in safeguarding the integrity of elections through regulations. Voter identification provisions are one way the state may choose to protect the legitimacy of elections. Such provisions may be constitutionally imposed even if they severely burden a person's right to vote, as long as they are narrowly tailored to advance a compelling state interest. However, Act 23's photo identification requirements severely burden eligible voters without being narrowly tailored to achieve the state's compelling interests of reducing voter fraud and increasing voter confidence in the outcomes of elections. For that reason, Act 23 is an unconstitutional election regulation, and I therefore respectfully dissent.
¶ 157 I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.
In their complaint, plaintiffs alleged that Act 23 also violated Article I, Section 1 of the Wisconsin Constitution, which guarantees equal protection and due process under the law in a manner similar to the Fourteenth Amendment to the United States Constitution. In their brief to us, plaintiffs refer only to Article III, Section 1 of the Wisconsin Constitution. However, they also contend that there is "a single standard to apply to all challenges to restrictive voting laws, whether brought as equal protection and due process challenges or under the fundamental right to vote," and their arguments are in most respects consistent with arguments made in due process and equal protection challenges.
Nivens v. Gilchrist, 444 F.3d 237, 245-46 (4th Cir.2006) (citation omitted).
The district court's reasoning stands the Anderson/Burdick analysis on its head. Anderson and Burdick require that the statutory challenger first prove whether the burden on the franchise is severe because it is this initial determination about the severity of the burden that drives the level of scrutiny courts then apply to the State's asserted interests. Burdick, 504 U.S. at 434, 440, 112 S.Ct. 2059; see also Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 190, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008); id. at 205, 128 S.Ct. 1610 (Scalia, J., concurring). It is only when a statute imposes a severe burden on the right to vote that the State's asserted interests are subject to strict scrutiny. Burdick, 504 U.S. at 434, 112 S.Ct. 2059. Accordingly, Frank provides no guidance as we address plaintiffs' claims.
In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 479 Mich. 1, 740 N.W.2d 444, 451 (2007) (quoting Mich. Comp. Laws § 168.523).
It is true that courts may lack subject matter jurisdiction to review administrative agency decisions if the petition for review is not timely filed. Schiller v. DILHR, 103 Wis.2d 353, 355, 309 N.W.2d 5 (Ct.App.1981) (concluding that circuit court lacked subject matter jurisdiction to review LIRC decision because petition was not timely filed); Kegonsa Joint Sanitary Dist. v. City of Stoughton, 87 Wis.2d 131, 150, 274 N.W.2d 598 (1979) (same). However, this line of cases has nothing to do with the issues presented in this appeal.
In the context of the modified facial challenge approach, some scholars have suggested the presumption of constitutionality that applies to purely facial challenges has no application to the First Amendment overbreadth doctrine. Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L.Rev. 235, 261-283 (1994) ("Thus, when the court considers the overbreadth challenge, applying the Salerno presumption entails judging the litigant by an unconstitutional rule of law — unconstitutional because, at least for the time being, it chills the behavior of third parties.").
