Oct. 17, 2012 – Voter identification (ID) laws have recently received significant media coverage. With national, state, and local elections taking place this year, many people have turned a critical eye on these laws. In Wisconsin, the voter ID law is contained in 2011 Wisconsin Act 23. Act 23 provides, in part, that qualified electors, as defined by the Wisconsin Constitution, may not vote in an election unless they display acceptable government-sanctioned photo identification either at the polls or to election officials by 4 p.m. on the Friday following the election.

Although challenges to voter ID laws have received considerable media coverage, little attention has been paid to the legal mechanisms relied on by the plaintiffs challenging Act 23. In Wisconsin, two pending challenges to Act 23 include:

• Wisconsin Milwaukee Branch of NAACP v. Walker, No. 11-CV-5492 (Dane Cnty.) (Appeal No. 2012-AP-1652); and
• League of Women Voters of Wis. Educ. Network Inc. v. Walker, No. 11-CV-4669 (Dane Cnty.) (Appeal No. 2012-AP-584).

This article summarizes these two cases that question the constitutionality of voter ID requirements and highlights the underlying procedural issues of temporary injunctive relief and standing.  

Temporary Injunctive Relief – Milwaukee Branch of the NAACP v. Walker  

In Milwaukee Branch of the NAACP v. Walker, the plaintiffs filed an action seeking both declaratory and injunctive relief. Specifically, they are seeking to preclude enforcement of Act 23, which requires production of photo identification.

A temporary injunction is a statutory remedy provided pursuant to Wis. Stat. section 813.02. Section 813.02(1)(a) provides a remedy that may be used to restrain an act when commission of that act, during the litigation, would injure one of the parties or would result in one party violating the rights of another party and rendering a judgment ineffectual.

Temporary injunctive relief claims must be filed in the county that is the proper place of trial for that action. No temporary restraining order or injunction can be issued unless the residence of each defendant is stated if known. Wis. Stat. § 813.02(4).

On March 6, 2012, Judge David Flanagan, Dane County Circuit Court, entered an order granting the plaintiffs’ request for injunctive relief. He ordered the defendants to cease any effort to enforce or implement the photo ID requirement of Act 23 before a trial could occur on the merits.

Judge Flanagan decided two issues: 1) whether the moving party (the Milwaukee branch of the NAACP) demonstrated the probability of eventual success at trial; and 2) whether it is probable that the moving party will suffer irreparable harm if the court fails to render a temporary injunctive order. Judge Flanagan ruled in the affirmative on both issues.

The plaintiffs in this action based their claims solely on the Wisconsin Constitution. They alleged a denial of the right to vote guaranteed in article III, section 1. They also alleged a denial of substantive due process and denial of equal protection guaranteed in article I, section 1.

The defendants argued that the court must give deference to the Wisconsin Legislature’s decision to adopt the law at issue and therefore apply a rational-basis standard of review. The court, however, employed a strict- or heightened-scrutiny standard of judicial review. Using this standard of judicial review, the court concluded that the right to vote is fundamental and the scope of Act 23 created a serious and needless impairment to that right. Finally, Judge Flanagan ruled that if no injunction were issued, a clearly improper impairment of a most vital element of our society would occur.

Issue of Standing – League of Women Voters of Wis. Educ. Network Inc. v. Walker

The League of Women Voters of Wisconsin Education Network Inc. and Melanie G. Ramey (the plaintiffs) sued Gov. Scott Walker and individual members of the Government Accountability Board (GAB) for a declaration under Wis. Stat. section 806.04 that those portions of Act 23 relating to photo ID requirements violate the Wisconsin Constitution, article III, sections 1 and 2. Judge Richard G. Niess, Dane County Circuit Court, ruled that Act 23’s photo ID requirements were unconstitutional to the extent they served as a condition for voting at the polls. His ruling enjoined any further implementation or enforcement of those provisions.

Before issuing this ruling, the court considered the defendants’ motion to dismiss the action on grounds that the plaintiffs lacked standing to bring their claims. Plaintiff Ramey’s position was that, as a voter and taxpayer in Wisconsin, her rights were “affected” by Act 23’s requirement that she produce a particular form of government-sanctioned photo ID at the polls as a prerequisite to exercising her constitutional right to vote. In finding that Ramey did have standing to bring this action, the court reasoned that whether she “has or can obtain, such photo identification is beside the point … because the requirement ‘affects’ – indeed, burdens – Ms. Ramey’s fundamental right to vote by imposing an additional impediment to its exercise not specified in the Wisconsin Constitution.”

The court then addressed the defendants’ argument that a plaintiff must suffer an actual injury before bringing a declaratory judgment action under Wis. Stat. section 806.04. The court cited cases discussing declaratory relief and found that declaratory relief is appropriate “wherever it will serve a useful purpose.” Declaratory relief on the constitutionality of photo ID requirements in Act 23 was, according to the court, “without question” a “useful, indeed profound, purpose.”

Status of Appeals 

The Wisconsin Supreme Court has recently denied the state’s request to immediately hear its appeals of the NAACP and League of Women Voters cases. It is therefore likely that the voter ID law will not be in place by the Nov. 6, 2012, presidential election.

About the Authors

John Loringer, Santa Clara 2002, is a litigation attorney at O’Connell, Tivin, Miller & Burns LLC, Milwaukee, and focuses on the defense of personal injury, products liability, and toxic tort matters. He has served as lead trial counsel and also has conducted mediations and arbitrations. He has successfully defended numerous actions in state and federal courts throughout the United States.

Daniel R. Griffin, Syracuse 2005, is a partner in the firm and is admitted to practice in jurisdictions across the country, where he has served as both national and regional trial counsel. He counsels clients in a variety of legal matters including business torts, land use, licensing, wrongful employment termination, municipal violations and property damage in state and federal courts nationwide. He enjoys volunteering at the Marquette University Volunteer Legal Clinic.