The U.S. Supreme Court’s decision Monday not to hear a case involving the constitutionality of Wisconsin’s strict voter ID requirement shifts attention now to voter identification laws working their way through the courts in Texas and North Carolina.
As in Wisconsin, these laws are being challenged on the grounds that they hurt minorities and other voters who are less likely to have the required government-issued photo ID. It’s possible — depending on what happens in the lower courts — that the Supreme Court could be asked to weigh in on one or both of these cases before the 2016 presidential election.
In the meantime, the Wisconsin law is now set to go into effect, although the state’s attorney general, Brad Schimel, said that won’t happen until after state elections are held April 7.
“Absentee ballots are already in the hands of voters, therefore, the law cannot be implemented for the April 7 election,” Schimel said in a statement issued shortly after the Supreme Court’s announcement. “The Voter ID law will be in place for future elections — this decision is final.”
Six states had a strict government-issued photo ID requirement in effect last year, according to the National Conference of State Legislatures. That does not include the Wisconsin, North Carolina and Texas laws, which were not in effect. A few other states, including Nevada, are also considering new voter ID laws.
Wisconsin’s ID law has been the subject of litigation ever since it was passed by the state’s Republican-controlled Legislature in 2011. Proponents said the law was needed to prevent voter fraud, although there has been little evidence of voter impersonation at the polls.
Opponents argued that the law was unconstitutional because some 300,000 state voters lack a government-issued photo ID. A federal judge agreed, but his decision was overturned by a federal appeals court last October. The Supreme Court temporarily blocked the law from going into effect, however, amid concerns that voters in last November’s elections would be confused by the last-minute change.
The American Civil Liberties Union, which challenged the Wisconsin law, is now weighing its options, according to Dale Ho, director of the group’s Voting Rights Project. The Supreme Court’s refusal to hear the case merely allows the federal appeals court ruling upholding the law to stand, Ho said.
“It doesn’t preclude future challenges to that law on the basis of other legal theories, or challenges to particular aspects of the law,” Ho told NPR. He noted, for example, that Veterans Administration identification cards, which include photos, are not allowed as acceptable forms of voter ID in Wisconsin — indicating that might be one possible avenue for challenge.
“This is just one more development in the ongoing debate about voter identification, but it is by no means the last word,” Ho said. “The Supreme Court didn’t say that Wisconsin’s voter ID law was constitutional or unconstitutional. It just declined to take the case, which means that it’s still an open question in the U.S. Supreme Court whether or not these kinds of very strict ID laws violate federal law.”
That’s one reason he and others are closely watching what happens next in Texas and North Carolina. A federal trial on North Carolina’s law, which requires photo IDs in 2016, is scheduled for this summer. A challenge to the Texas law is pending before a federal appeals court.
But Rick Hasen, who studies election law at the University of California Irvine School of Law, said that betting on the Texas case to topple other state ID laws could be risky. He noted that a trial judge found the Texas law unconstitutional, in part, because it was enacted with the intention — as compared to just having the effect — of discriminating against minority voters.
Hasen added that if the high court ends up striking down the Texas law for that reason, the decision might not have an impact on laws, such as Wisconsin’s, where no intentional discrimination has been found.