After years of effort to enact laws obstructing non-Republican voters from the polls, Scott Walker and the Republicans may believe they have succeeded on one count: Wisconsin's Photo Voter ID law that could potentially keep some 300,000 voters away from the polls next year, (Posner, Frank v. Walker, On Suggestion of Rehearing En Banc).
Legal challenges to Wisconsin Act 23 (2011) are not over, (Associated Press).
Here I suggest another: A challenge based on violations of Due Process and Equal Protection including elements not seen, that should be contemplated by voting rights advocates.
This concerns the class of "permanent absentee" voters living in Wisconsin, and the inequitable treatment by the state of those who not members of this class—i.e. every other elector who is not an permanent absentee voter, excluding Permanent Overseas Absentee voters.
Federal law (and state law and regulations) demands reasonable accommodations - and rightfully so - for permanent absentee voters who are indefinitely confined because of age, illness, infirmity or disability. Permanent absentee ballot voters need only present a photo voter ID once (and fill out a short form with no supporting medical documentation) at their local municipality clerk's office to become a member of this class, and then receive a mailed absentee ballot in perpetuity before every election.
Currently, most other voters must present one of a range of restrictive photo voter IDs in every voting circumstance, (in-person early voting; voting at the polls and so on), despite the difficulties this poses as discussed in Frank v. Walker and other challenges.
Not all voters are not treated the same under the onerous photo voter ID regime.
This poses the question whether the inequitable treatment of classes by the state towards one class in not having to present a photo ID, and another class having to present such an ID is a violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment under the United States Constitution.
What makes this question different from recent other past challenges is that this line of reasoning argues for a facial challenge of the 2011 Wisconsin Act 23.
"Each eligible elector who is required to register under s. 6.27, who is not a military elector or an overseas elector, who registers by mail, and who has not voted in an election in this state shall, if voting in person, provide an identifying document that establishes proof of residence under sub. (3) or, if voting by absentee ballot, provide a copy of an identifying document that establishes proof of residence under sub.(3).," reads 2011 Wisconsin Act 23.
Neither Act 23 nor the Wisconsin Government Accountability (GAB) website notes a Photo Voter ID, proof of identification, as a condition to vote for permanent absentee voters.
In fact, the GAB notes "proof of identification must be provided only once with the application (unless the voter re-registers with a new name or address)" for absentee voters.
2011 Wisconsin Act 23 is of course a law crafted by Republicans to keep Republicans in power.
Few would argue a remedy for a Due Process and Equal Protection violation inconvenience the infirm or disabled, emphatically for a voter fraud problem that does not exist.
"As there is no evidence that voter impersonation fraud is a problem, how can the fact that a legislature says it's a problem turn it into one? If the Wisconsin legislature says witches are a problem, shall Wisconsin courts be permitted to conduct witch trials?" asks Judge Richard Posner in Frank v. Walker (p.26).
It is indisputable that permanent absentee voters are free to commit voter fraud under Republican and Act 23 theory, without any proof-of-identification check save an initial check by a municipal clerk.
In response to a query, the GAB reports that the "number of permanent absentee voters identified in the Statewide Voter Registration System (SVRS) is 46,419."
The GAB qualifies this figure, noting, "the total number of permanent absentee voters in Wisconsin is unknown. The reason is that only 351 out of 1,853 municipalities used SVRS to manage their list of permanent absentee voters at the most recent statewide election. However, those tend to be the state’s largest municipalities."
To conclude we have a class of approximately 50,000 permanent absentee voters who have no mandated proof-of-identification check, and some 3,018,000 voters [from 2102 Presidential and General Election data] who are burdened by Act 23, including the estimated 300,000 who would see their franchise destroyed, absent a federal injunction.
A federal lawsuit is called for seeking injunctive relief invalidating this unconstitutional law.