The Supreme Court on Thursday stopped officials in Wisconsin from requiring voters from needing to provide photo identification before casting their ballots in the coming election.
Over a mild protest by three Justices, the Supreme Court on Thursday night barred Wisconsin from enforcing a requirement that voters must produce a photo identification before voting, by absentee ballot or in person. The Court majority’s one-paragraph order gave no reason, but the fact that this year’s election is less than a month away may have been the key factor.
The Wisconsin law, challenged by civil rights and citizens’ advocacy groups, was described by them as “one of the strictest voter ID laws in the country.” It would require voters to show one of only nine specific forms of identification to cast a ballot. Apparently, thousands of Wisconsin voters have already cast ballots without producing the kind of ID required, and tens of thousands reportedly do not have the right kind of ID. November 4 is the general election day this year.
The Court’s order was unsigned, but apparently had the votes of at least five Justices, since that would have been the minimum necessary to set aside a lower court’s order.
Justice Samuel A. Alito, Jr., joined in dissent by Justices Antonin Scalia and Clarence Thomas, would have allowed the law to be enforced for fairly technical legal reasons, but they conceded that “there is a colorable basis for the Court’s decision due to the proximity of the upcoming general election.”
Reflecting what must have been part of the internal discussion of the issue, Alito wrote that “it is particularly troubling that absentee ballots have been sent out without any notation that proof of photo identification must be submitted.”
The order blocking enforcement of the law will clearly last throughout the time remaining for voting in Wisconsin. It will remain until a petition for review is filed to test an order by the U.S. Court of Appeals for the Seventh Circuit allowing enforcement. If that appeal is reviewed, Thursday’s order will continue in effect; it will be dissolved if review is denied, but that almost certainly would be after this year’s election is past.
Although the voter ID law, known as “Act 23,” was passed more than three years ago, it has since been used only once in a state primary election in 2012, because of challenges to its validity. Initially, two state courts blocked its enforcement in 2012 based on the state constitution, and a fcderal trial judge in April of this year ruled that the law violated constitutional guarantees of equality and Section 2 of the Voting Rights Act of 1965. The federal judge concluded that the ID requirement would deter voting by a substantial number of the 300,000-plus registered voters who lack a proper ID.
That ruling, however, was set aside in a temporary order by a three-judge panel of the Seventh Circuit, allowing the state to begin enforcing the requirement. Then, the en banc Seventh Circuit voted five to five, and thus failed to review the panel’s action.
After the challengers had taken the issue on to the Supreme Court, asking it to wipe out the three-judge panel’s stay order, the panel then issued its final ruling, overturning the trial judge’s decision and declaring that “Act 23″ does not violate either the Constitution or the Voting Rights Act.
In Thursday’s order, the Supreme Court acted only on the challengers’ request to lift the panel’s order permitting enforcement of the state law. However, when the challengers go forward with an expected appeal in this case, they are likely to ask the Court to overrule the panel’s final decision, too.
The Court’s action marked the third in recent days to deal with the spreading number of laws across the country, imposing new limits on voting rights. In the other two incidents, however, the Court allowed the restrictions to go into effect or to continue in effect.
In the dissent filed by Justice Alito Thursday, he and the other two Justices said that the usual rule is that the Supreme Court may not vacate a stay imposed by a federal appeals court “unless that court clearly and demonstrably erred in its application of accepted standards.” Under that test, the dissenters said, the Court should have denied the challengers’ request to block the law.