Milwaukee Branch of the NAACP v. Scott Walker

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Appeal No. = 2012AP557-LV Cir. Ct. No. 2011CV5492

WISCONSIN COURT OF APPEALS
DISTRICT il

MILWAUKEE BRANCH OF THE NAACP, VOCES DE LA

FRONTERA, RICKY T. LEWIS, JENNIFER T. PLATT, JOHN

J. WOLFE, CAROLYN ANDERSON, NDIDI BROWNLEE,

ANTHONY FUMBANKS, J OHNNIE ML GARLAND, DANETTA

LANE, MARY MCCLINTOCK, ALFONSO G. RODRIGUEZ,

JOEL TORRES AND ANTONIO K. WILLIAMS, FILED

PLAINTIIFFS-RESPONDENTS,
MAR 28, 2012

V.
Dane M Frengen
Clerk of Suprene Court

SCOTT WALKER, THOMAS BARLAND, GERALD C.
NICHOL, MICHAEL BRENNAN, THOMAS CANE, DAVID G.
DEININGER AND TIMOTHY VOCKE,

DEFENDANTS-PETITIONERS.

CERTIFICATION BY WISCONSIN COURT OF APPEALS

Before Brown, CJ., Reilly and Gunde, JJ.

Pursuant to WIS. STAT. RULE 809.61 (2009-10), this court certifies the
petition for leave to appeal and accompanying motion to stay in this case to the
Wisconsin Supreme Court for its review and determination.

1 Although this citation is to the 2009-10 version of the Wisconsin Statutes, the
remaining statutory references are to statutes created or amended by 2011 Wis. Act 23, and are
therefore accompanied by citations to the sections of the Act creating or amending them.

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ISSUES
The defendants-petitioners, Scott Walker et al., petition for leave to appeal
the March 6, 2012, nonfinal order granting a motion for temporary injunction (“the
Order”) issued by the Circuit Court for Dane County, the Honorable David T.
Flanagan presiding.2 The Order imposed a temporary injunction commanding the
defendants to immediately cease all efforts to enforce or implement those portions
of the 2011 Wis. Act 23 (“the Act”) that require eligible electors to verify their
identity by presenting an acceptable form of photographic identification to election
officials. The defendants-petitioners further request a stay of the temporary
injunction pending disposition of the petition and of any subsequent appeal, if the
petition is granted.
There are many issues in this case, but this certification focuses on the
following questions: (1) What level of judicial scrutiny should be employed in
reviewing the plaintiffs’ challenge to the Act? (2) Does the Wisconsin
Constitution provide greater protection to voting rights than is guaranteed under
the United States Constitution? (3) Did the circuit court correctly assess the
burden imposed by the Act from the facts of this record? and (4) Given the
answers to these previous questions, are the Act’s identification requirements
permitted by the Wisconsin Constitution?
2 The circuit court subsequently issued a revised order granting the motion for temporary
injunction on March 12, 2012. The differences between the March 6, 2012 order and March 12,
2012 order are negligible.

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BACKGROUND
This case concerns a recent action by the Wisconsin Legislature requiring
Wisconsin electors to produce one of several specific forms of photographic
identification in order to receive an election ballot.
The plaintiffs in the case are twelve Wisconsin voters and two nonprofit
organizations, Milwaukee Branch of the NAACP and Voces De La Frontera,
whose activities include assisting voters in protecting and exercising their voting
rights. The defendants are the Governor of Wisconsin and the individual members
of Wisconsin’s Government Accountability Board (GAB), who were sued in their
official capacities. The plaintiffs are seeking a declaratory judgment and
injunctive relief against enforcement of the Act’s identification requirements.
Prior to the Act, an eligible Wisconsin elector voting at a polling place or
by absentee ballot was not required to present identification, other than proof of
residence in certain circumstances. Under the Act, an elector is required to present
proof of identification in order to vote. Proof of identification is defined as
identification that contains the name and a photograph of the individual, which
name must conform to the name on the person’s voter registration form. See WIS.
STAT. § 5.02(16c); 2011 Wis. Act 23, § 2.3
The Act requires, with certain exceptions, that an elector who seeks to vote
in person at a polling place must present one of the acceptable forms of
identification to an election official, who must verify that the name on the
3 For a list of acceptable forms of identification, see WIS. STAT. § 5.02(6m); 2011
Wis. Act 23, § 1.

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identification conforms to the name on the poll list and that any photograph
reasonably resembles the elector. WIS. STAT. § 6.79(2)(a); 2011 Wis. Act 23,
§ 45.4 If an elector does not present acceptable identification, he or she must be
offered the opportunity to vote by provisional ballot. Section 6.79(2)(d) and
(3)(b); 2011 Wis. Act 23, §§ 47-50. A provisional ballot will thereafter be
counted if the voter presents acceptable identification at the polling place before
the polls close or at the office of the municipal clerk or board of election
commissioners no later than 4 p.m. on the Friday after the election. WIS. STAT.
§ 6.97(3)(b); 2011 Wis. Act 23, § 90. If an elector presents identification bearing
a name that does not conform to the one on the poll list or a photograph that does
not reasonably resemble him or her, then the elector may not be permitted to vote.
Section 6.79(3)(b); 2011 Wis. Act 23, §§ 48-50.
In order to accommodate electors who do not possess an acceptable form of
identification, the Act requires the Department of Transportation (DOT) to issue a
free identification card to any elector who satisfies all other requirements for
obtaining the card, is a citizen who will be at least eighteen years old on the next
election day, and requests that the card be provided without charge for voting
purposes. WIS. STAT. § 343.50(5)(a)3.; 2011 Wis. Act 23, § 138.
Finally, the Act requires the GAB to take various steps to implement the
identification requirements, including: (1) revising instructions, forms, and
informational materials for voters; (2) engaging in outreach to identify and assist
groups needing help in obtaining acceptable identification; and (3) conducting a
4 Similar requirements apply to absentee voters. See WIS. STAT. §§ 6.86(1)(ar), 6.87(1)
and (4)(b)1.; 2011 Wis. Act 23, §§ 56, 63, and 66.

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public information campaign to inform people about the identification
requirements. See WIS. STAT. §§ 5.35(6)(a)4a., 6.869, 6.87(2), 6.875, and 7.08(8)
and (12); 2011 Wis. Act 23, §§ 4, 62, 64, 73-82, 93, 95, and 144.
On December 16, 2011, the plaintiffs filed their complaint, alleging that the
Act’s identification requirements violated the Wisconsin Constitution by
unreasonably burdening the right to vote and denying substantive due process and
equal protection.5 The plaintiffs subsequently moved for a temporary injunction
of the identification requirements.
In support of their motion for a temporary injunction, the plaintiffs
submitted two kinds of evidence. The first consisted of initial and supplemental
expert reports establishing that there are approximately 221,975 constitutionally
eligible voters in Wisconsin who lack either a Wisconsin driver’s license or a state
photo identification. The second consisted of affidavits from forty individuals
who state that their voting rights have been burdened in various ways by the
identification requirements.
On February 8, 2012, following briefing on the injunction motion, the
circuit court for Dane County, the Honorable David T. Flanagan, III, presiding,
issued an order denying the motion for temporary injunction. In it, the court
acknowledged that the plaintiffs’ request “poses a close and extremely serious
question.” However, the court concluded that the plaintiffs had not made a
sufficient showing of irreparable harm to justify the requested injunction.
5 The plaintiffs also alleged that the Act’s identification requirements improperly
imposed voter qualifications beyond those specified in the Wisconsin Constitution. However,
they later agreed to withdraw that claim from consideration in the case.

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On February 13, 2012, the circuit court held a conference for the purpose of
scheduling a trial on the merits of the case. The court determined that it would not
be feasible to try the case and issue a decision prior to the April 3, 2012, election.
At that point, the court decided to reconsider its previous decision denying the
plaintiffs’ motion for temporary injunction and scheduled an evidentiary hearing
for March 1, 2012.
Following the evidentiary hearing, the circuit court issued a temporary
injunction on March 6, 2012, ordering the defendants to cease immediately any
effort to enforce or implement the identification requirements of the Act pending
trial and further order of the court. In reaching its decision, the court found that
the plaintiffs had demonstrated likely success on their claim that the Act’s
identification requirements unconstitutionally burden voting rights under the
Wisconsin Constitution. The court further found that the plaintiffs had
demonstrated a substantial probability of irreparable harm to the voting rights of a
significant portion of the electorate, sufficient to justify a facial injunction of all
enforcement or implementation of the identification requirements.
On March 9, 2012, the defendants moved the circuit court to stay the
temporary injunction, pending the defendants’ petition for leave to appeal. The
circuit court denied the motion on March 15, 2012, concluding that the defendants
had not met the criteria for a stay. The defendants subsequently petitioned this
court for leave to appeal and moved to stay the temporary injunction pending
disposition of the petition and of any subsequent appeal, if the petition is granted.
We now certify both the petition for leave to appeal and accompanying motion to
stay in this case to the Wisconsin Supreme Court for its review and determination.

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DISCUSSION
Because this case has not yet been briefed as an appeal, our framing of the
issues is based on the circuit court’s decision as well as the parties’ arguments set
forth in their petition for leave to appeal and response. As we understand it, the
circuit court’s reasoning for granting the temporary restraining order may be
summarized as follows:
1) The plaintiffs’ claims are founded exclusively upon the Wisconsin
Constitution, which provides that “Every United States citizen age 18 or
older who is a resident of an election district in this state is a qualified
elector of that district.” WIS. CONST. art. III, § 1.
2) A significant proportion of constitutionally eligible voters in
Wisconsin—approximately 221,975 individuals—do not possess
acceptable photo identification.
3) The Act imposes a substantial burden upon these voters in several
respects. First, for some of these voters, the Act imposes an indirect
financial burden in having to pay a fee to acquire documents—such as a
birth certificate—that may be needed to obtain free identification from
the DOT. Second, for some of these voters, the Act imposes a general
burden in having to deal with multiple visits to government offices,
delay, dysfunctional computer systems, misinformation, and a
significant investment of time to avoid being turned away at the ballot
box. Third, for a smaller number of these voters, the Act imposes a
specific burden related to their specialized circumstances (e.g.,
individuals who cannot locate their birth certificates or have a birth
certificate with a misspelled name, etc.).
4) There is no evidence of voter fraud that would have been prevented by
the Act.
5) The Act’s identification requirements are notably inflexible in that they
do not mandate any heightened review or validation of the ballot of a
constitutionally eligible voter who lacks the required identification.
Under the Act, a constitutionally eligible voter who cannot produce the
required identification at the polling place, or within three days
thereafter, is simply prohibited from voting.

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6) Constitutionally eligible voters who do not possess a driver’s license are
disproportionately elderly, indigent, or members of a racial minority.
7) The Wisconsin Supreme Court has not deferred to the legislature on
questions of voter qualification.
8) The proper level of judicial review is strict or heightened scrutiny, as the
Act implicates a fundamental interest in the constitutional right to vote.
9) The Act’s identification requirements have been shown to be an
improper impairment of the constitutional right to vote by (a) failing to
account for the difficulty they demand upon indigent, elderly, and
disabled citizens who are otherwise constitutionally eligible to vote; and
(b) offering no flexibility to prevent the exclusion of constitutionally
eligible voters. Thus, the Act is in violation of the WIS. CONST. art. III,
§ 1.
10) The decision of the United States Supreme Court in Crawford v.
Marion County Election Board, 553 U.S. 181 (2008), does not require
judicial deference to the Act for three reasons. First, unlike the present
case, the Crawford case was based upon the United States Constitution.
Second, unlike the present case, the Crawford case was based upon a
flawed factual record lacking substantial evidence of the burden
imposed by the challenged law. Finally, the law in Crawford was less
rigid than the Act because it offered alternative voting opportunities to
eligible voters who lacked the required identification.6
In its petition for leave to appeal, the defendants-petitioners argue that the
circuit court erred in several respects. Specifically, they accuse the court of (1)
introducing new discrepancies into the interpretation of the right to vote under the
state and federal constitutions; (2) facially enjoining a state election law that is
constitutional as applied to the vast majority of voters; (3) holding that every
statute implicating the right to vote is subject to strict scrutiny; and (4) concluding
6 The law at issue in Crawford v. Marion County Election Board, 553 U.S. 181 (2008),
permitted voters who were indigent or had a religious objection to being photographed to cast a
provisional ballot that would be counted if they executed an appropriate affidavit before the
circuit court clerk within 10 days following the election. Id. at 186.

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that the Act’s identification requirements permanently disenfranchise every
voting-eligible person who does not already possess a driver’s license or a state
photo identification.
The plaintiffs-respondents, of course, disagree. In their response, they
contend that the circuit court adhered to existing Wisconsin precedent construing
Article III, Section 1 of the Wisconsin Constitution. They further assert that the
court adopted and applied the correct heightened level of scrutiny and employed
the proper inquiry, balancing the harms and benefits of the Act. Additionally, they
maintain that the court employed the correct legal standard to sustain a facial
challenge to the identification requirements, finding the Act’s inflexible and
widespread application to be unconstitutional for a substantial number of voters.
From these arguments, several issues emerge. First, what level of judicial
scrutiny should be employed in reviewing the plaintiffs’ challenge to the Act?
Second, does the Wisconsin Constitution provide greater protection to voting
rights than is guaranteed under the United States Constitution? Third, did the
circuit court correctly assess the burden imposed by the Act from the facts of this
record? Finally, given the answers to these previous questions, are the Act’s
identification requirements permitted by the Wisconsin Constitution? Because
these issues have great consequence to the voters of this state and election
officials, we believe that the Supreme Court is the proper forum to hear this case.
CONCLUSION
In sum, this case presents significant legal issues that impact the essential
political functions of the State. Given the need for a prompt resolution, we
respectfully certify the petition for leave to appeal and accompanying motion to

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stay in this case to the Wisconsin Supreme Court for its review and
determination.7
7 As noted in the certification for League of Women Voters of Wisconsin Education
Network, Inc. v. Scott Walker, No. 2012AP584, this matter is also highly time-sensitive due to
upcoming elections.

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