IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH …€¦ · CASE NOS. 11-CV-1128 & 12-CV-285,...

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

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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

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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

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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

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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

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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

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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

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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,


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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


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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


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).


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


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.


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.


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


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,


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


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.


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.


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


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.


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.


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.


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.


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


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


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.


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


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


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.


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


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


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


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.”


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);


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


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


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.


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.”


application, satisfactory proof of identity includes only the following: (a) a valid


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.


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.


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


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


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


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.


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.



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.







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


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.




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.







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.



the class. Class 4 Representatives Sarah Lahti, Domonique Whitehurst, and


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.







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


CLASS 5


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.



the class. Class 5 Representatives Ruthelle Frank, Carl Ellis, Pamela Dukes,


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.







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.




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.







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


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.


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]


46


incorporated in Count Three of the complaint as if set forth herein.



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]


incorporated in Count Four of the complaint as if set forth herein.


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.


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]


incorporated in Count Five of the complaint as if set forth herein.



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


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



incorporated in Count Six of the complaint as if set forth herein.






or other tax.”


50








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]


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.


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;


52

(ii) The Court declare the photo ID law unconstitutional as applied to 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



(v) The Court declare the photo ID law unconstitutional as applied to Class 5



members of Class 5;

(vi) The Court declare the photo ID law unconstitutional as applied to 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.


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]

[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]

[email protected]


54

*Attorney Admission Application Pending **Attorney Admission Application and Motion for Fee Waiver Pending


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.


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.


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


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


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


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


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


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


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.


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.


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


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


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


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.


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.


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]


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,


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


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:


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.


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.


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


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


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


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


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.


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.


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


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


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


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


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


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


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


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


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


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


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


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.


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


20

the entity within DMV responsible for issuing driver’s licenses and identification

cards. They are sued in their official capacities only.


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).


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.


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.


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


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.


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


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.


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.


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.


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.


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.


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


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


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’


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.


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


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.


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


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.


application, satisfactory proof of citizenship, legal permanent resident status,


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


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


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.


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.


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


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.


application, satisfactory proof of identity includes only the following: (a) a valid


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.


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.


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


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,


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


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.


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


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


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.



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





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


53

class, so that final injunctive relief or corresponding declaratory relief is


CLASS 2


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.


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


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.








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


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,


56

surrendering their driver’s license to obtain a free Wisconsin state ID card, or

losing their right to vote.



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.







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



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.



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








protect their interests. Additionally, Defendants have acted or refused to act on




58

CLASS 5


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.



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.







protect their interests. Additionally, by requiring eligible Wisconsin voters to pay


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


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.



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.








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


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.



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






61




protect their interests. Additionally, Defendants have subjected voters to a

fundamentally unfair electoral system and therefore acted or refused to act on



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


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


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


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.





64



or other tax.”








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.


65

COUNT FOUR: Violation of the Equal Protection Clause of the Fourteenth

Amendment [Class 4]


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


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]


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]


incorporated in Count Six of the complaint as if set forth herein.


67



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


incorporated in Count Seven of the complaint as if set forth herein.


68



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


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


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).


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.


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.


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


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


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


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


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



members of Class 3;

(iv) The Court declare the photo ID law unconstitutional as applied to Class 4



(v) The Court declare the photo ID law unconstitutional as applied to Class 5



members of Class 5;

(vi) The Court declare the photo ID law unconstitutional as applied to 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;


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]

[email protected]

M. Laughlin McDonald Jon Sherman Nancy Abudu American Civil Liberties Union Foundation, Inc.

230 Peachtree Street, Suite 1440


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]

[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]


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


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]


/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]


IN THE UNITED STATES DISTRICT COURT


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


- 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.


- 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.”).


- 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.


J.B. VAN HOLLEN

Attorney General

s/Clayton P. Kawski

CLAYTON P. KAWSKI

Assistant Attorney General

State Bar #1066228

MARIA S. LAZAR


State Bar #1017150

DANIEL P. LENNINGTON


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)

[email protected]

[email protected]

[email protected]


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


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


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


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,


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


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.


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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).

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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


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

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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


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,

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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


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


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.

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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


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


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


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


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


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


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


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


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.

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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


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


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


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).

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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

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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


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

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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


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


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

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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.

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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.

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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

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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.

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Dated at Milwaukee, Wisconsin, this 29 day of April 2014.th

s/ Lynn Adelman_______________________LYNN ADELMANDistrict Judge

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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.

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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.

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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.

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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.

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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.

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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.

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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

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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.

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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

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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.

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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.

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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

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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.

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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


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


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


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


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


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


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




LEAGUE OF UNITED LATIN AMERICAN

CITIZENS (LULAC) OF WISCONSIN, et al.,

Plaintiffs,



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


- 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.


J.B. VAN HOLLEN

Attorney General

s/Clayton P. Kawski

CLAYTON P. KAWSKI


State Bar # 1066228

MARIA S. LAZAR


State Bar # 1017150

BRIAN P. KEENAN


State Bar # 1056525





(608) 266-7477 (Kawski)

(608) 267-3519 (Lazar)

(608) 266-0020 (Keenan)

(608) 267-2223 (fax)

[email protected]

[email protected]

[email protected]


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




RUTHELLE FRANK, et al.,

Plaintiffs,


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,


- 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.


- 3 -



J.B. VAN HOLLEN

Attorney General

s/Clayton P. Kawski

CLAYTON P. KAWSKI


State Bar # 1066228

MARIA S. LAZAR


State Bar # 1017150

BRIAN P. KEENAN


State Bar # 1056525





(608) 266-7477 (Kawski)

(608) 267-3519 (Lazar)

(608) 266-0020 (Keenan)

(608) 267-2223 (fax)

[email protected]

[email protected]

[email protected]

kawskicp\cases\frank - voter id, governor walker, gab, dot\pleadings\notice of appeal.doc




RUTHELLE FRANK, et al.,

Plaintiffs,


SCOTT WALKER, et al.,

Defendants.

LEAGUE OF UNITED LATIN AMERICAN

CITIZENS (LULAC) OF WISCONSIN, et al.,

Plaintiffs,



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.


- 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.


- 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).


- 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


- 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


- 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.


- 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.


- 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.)


- 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


- 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%


- 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


- 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).


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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


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.)


- 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



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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


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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,


- 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


- 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)


- 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).


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CONCLUSION

For the reasons argued in this motion, the Court should stay its

permanent injunction pending appeal.



J.B. VAN HOLLEN

Attorney General

s/Clayton P. Kawski

CLAYTON P. KAWSKI


State Bar # 1066228

MARIA S. LAZAR


State Bar # 1017150

BRIAN P. KEENAN


State Bar # 1056525





(608) 266-7477 (Kawski)

(608) 267-3519 (Lazar)

(608) 266-0020 (Keenan)

(608) 267-2223 (fax)

[email protected]

[email protected]

[email protected]

kawskicp\cases\jones - voter id, gab\pleadings\notice of motion and motion to stay permanent injunction pending

appeal.doc


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

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