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Wisconsin federal appeals court decided the state’s harsh voter ID law stays on the books

A three-judge panel ruled a previous injunction didn’t assess “genuine difficulties” for getting an ID.

Wisconsin Voters Take Part In State's Primary Photo by Darren Hauck/Getty Images

A new ruling from the Seventh Circuit US Court of Appeals against an exception in Wisconsin’s voter identification law, which allows some people to vote without formal IDs, could raise the stakes of the November election.

In July, a district judge issued an injunction on the state’s 2011 voter ID law to allow prospective voters without identification cards to vote as long as they submitted an affidavit proving they were unable obtain an ID. This procedure would be used as a "safety net" for voters who couldn’t get a recognized ID "with reasonable effort."

But on Wednesday, a three-judge panel decided not enough had been done to define the threshold of reasonable effort:

Instead of attempting to identify these voters, or to identify the kinds of situations in which the state's procedures fall short, the district court issued an injunction that permits any registered voter to declare by affidavit that reasonable effort would not produce a photo ID—even if the voter has never tried to secure one, and even if by objective standards the effort needed would be reasonable (and would succeed)," the appeals court judges wrote, adding that the trial court judge did not attempt to distinguish between genuine difficulties voters might have in obtaining the proper documents and "any given voter's unwillingness to make the effort that the Supreme Court has held that a state can require.

Without a clear standard for "genuine difficulties" compared to someone who didn’t try, the appeals court ruled "there is a substantial likelihood that the injunction will be reversed on appeal."

Attorney General Brad Schimel called the appeals court’s decision "a step in the right direction" in a statement: "The decision recognized that [the district judge’s] previous ruling is likely to be reversed in light of Supreme Court precedent and would create more uncertainty for voters. Voters in Wisconsin support voter ID, and our administration will continue to work to make it easy to vote and hard to cheat."

Following a wave of court rulings overturning repressive voter ID laws in North Carolina and North Dakota, Wisconsin’s decision stands out in a swing state where discriminatory restrictions that hurt marginalized voters most will remain on the books.

Voter ID laws largely disenfranchise poor, minority voters

While voter ID laws are often implemented as a precautionary measure against "voter fraud," the laws tend to play out as a cure to a problem that doesn’t really exist and, in turn, only creates more problems.

Justin Levitt, a law professor at Loyola University who tracks voter fraud, only found 35 credible voter fraud allegations between 2000 and 2014 — out of 800 million total ballots cast. Additionally, as Vox’s German Lopez has noted, the voter ID laws do nothing to curb "the kinds of voter fraud that do happen, [including] absentee voting, vote buying, insider ballot-box stuffing, double voting, and voting by people who turn out to be ineligible."

Instead, voter ID laws tend to disproportionately impact eligible voters — who also happen to be from marginalized backgrounds: poor, minority voters.

Last October, after implementing its own voter ID law, Alabama shut down 31 drivers license offices, citing "budget cuts." The closures took place in predominantly poor, rural areas with majority black populations. By the end of the month, Gov. Robert Bentley (R), decided to reopen the offices, but on the condition that they be open at least one day each month.

In North Carolina State Conference of the NAACP v. McCrory, the Republican-run government clearly worked to deter a critical number of African Americans from voting. Part of the state’s argument to cut its early voting was that "[c]ounties with Sunday voting in 2014 were disproportionately black" and "disproportionately Democratic."

Shortening the window for early voting meant eliminating one of the "soul-to-the-polls" Sundays, during which black churches made efforts to get congregants out to vote.

Wisconsin showed similar issues during the presidential primary election in April. The primary turnout was one of the highest for the state in decades, leading Gov. Walker to tweet that turnout was a testament to the voter ID laws: "Easy to vote but hard to cheat."

But, as Sean Young, an attorney fighting against the state’s law, told ThinkProgress, the law is brutal, reminiscent of Jim Crow poll taxes, requiring arduous trips to the DMV, sometimes multiple times, to get appropriate documentation that, in the end, could be legitimized at the discretion of a DMV employee.

"We haven’t had the right to vote depend on the whims of an individual bureaucrat since the days of the Jim Crow literacy test," Young said.

And that could actually have an impact on the upcoming election. In 2012, Barack Obama beat Mitt Romney by about 200,000 votes in the state; right now, there’s an estimated 300,000 people who may not have acceptable voter IDs in Wisconsin.

Not all of those people are expected to vote. But even as a Marquette Law School poll currently gives Hillary Clinton a 15 point lead to Donald Trump (52 percent to 37 percent, respectively), the voter ID law, which disproportionately impacts voters who are more likely to vote Democratic, should give pause to having blind faith in polling data.

Dale Ho, the director of the ACLU’s Voting Rights Project, told Mother Jones that an appeal to the Supreme Court may be in the cards. But, unfortunately, Ho noted, the timing of the court’s ruling may "guarantee disenfranchisement of many Wisconsinites in this fall’s election."

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