The catch-22 that could hand Wisconsin’s electoral votes to Trump

Last July, a federal court hearing one of several challenges to Wisconsin’s voter ID law, a common method of voter suppression which disproportionately targets Democratic voters, ordered the state to “issue a receipt to any person” who begins the process of obtaining the ID they are now required to hold in order to vote, “and that receipt will serve as an ID valid for voting in the November election.” The next month, a federal appeals court declined to impose more robust restrictions on the state’s voter ID law, citing the state’s promise that it would “mail automatically a free photo ID to anyone who comes to DMV one time and initiates the free ID process.”


As it turns out, however, Wisconsin has neither kept its promise to the appeals court nor complied with the trial court’s order. As The Nation’s Ari Berman reported last week, voting rights advocates investigated 10 Wisconsin DMVs to see if they were acting in compliance with the law. As it turns out, “only three in 10” said that a voter “would get an ID to vote in a week or less, as state law requires.”


Berman’s reporting, along with similar reporting by the Milwaukee Journal Sentinel, prompted Judge James Peterson to order the state to “investigate these allegations and provide a report to the court” by Friday. Peterson followed that order with another one, scheduling an October 12 hearing “to discuss whether any of the relief requested by plaintiffs is necessary or appropriate.”


The plaintiffs in this case requested that Peterson take fairly robust action in response to the state’s failure to comply with the law. In a motion filed on Tuesday, they argue that “the only remedy that will prevent the State from disenfranchising voters in the upcoming general election . . . is the issuance of an injunction that bars the State from enforcing the voter ID law” until the state can show that it is actually carrying out its promises to the appeals court. Barring that, the plaintiffs ask for a wide range of alternative relief, including an order requiring the state “to count all no-ID provisional ballots unless it can demonstrate (through evidence beyond the lack of a qualifying ID) that a particular ballot was cast by a voter who is not qualified.”


Next Wednesday, a federal court in Wisconsin will hold a hearing on just what it is supposed to do with the state’s inability to keep its promises in a key voting rights case. While it is very likely that the state has both defied a court order and violated its own promises to a higher court, it is far from clear much can be done about Wisconsin’s disrespect of the fundamental right to vote, given a Supreme Court decision tying the courts’ hands.



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