In striking down Wisconsin's voter ID law, Dane County Judge Richard Nies wrote, "A government that undermines the very foundation of its existence — the people's inherent, pre-constitutional right to vote — imperils its legitimacy as a government by the people, for the people, and especially of the people." This was clearly a personal opinion of voter ID laws in general. But before we entertain cries of "judicial activism!" we have to consider an inconvenient fact -- the Wisconsin Constitution.
[Center for Media and Democracy:]
Article III, Section 1 of the Wisconsin Constitution provides that all state residents who are U.S. citizens and over age 18 may vote, and Section 2, according to the decision, "authorizes the government to exclude from voting those otherwise-eligible electors (1) who have been convicted of a felony and whose civil rights have not been restored, or (2) those adjudged by a court to be incompetent or partially incompetent, unless the judgment contains certain specifications."
According to Judge Niess, Section 1 and 2 provide the exclusive basis for creating laws that implement the constitutional requirements for voting. "The government may not disqualify an elector who possesses those qualifications on the grounds that the voter does not satisfy additional statutorily created qualifications not contained in Article III, such as a photo ID," he wrote.
"By enacting Act 23’s photo ID requirements as a precondition to voting, the legislature and governor have exceeded their constitutional authority."
The state constitution is very explicit about which groups of people may be denied a vote -- and people without the proper papers aren't one of them. It wouldn't be judicial activism to strike down this law, it would be judicial activism to uphold it, since you'd have to ignore the state constitution.
If Walker and state Republicans want any voter ID law to pass constitutional muster, they need to either amend the state constitution or, conceivably, rewrite the law so that provisional ballots are provided to voters without ID -- with the burden of proof being on the government. In other words, if I show up at the polls without an ID, I get a ballot that's counted after the state proves my legitimacy. As the law stands now, it's the other way around; I cast a provisional ballot, then I have to prove my legitimacy by 4:00pm the Friday after the election.
The first option would be difficult to impossible, while the second is contrary to the entire point of voter ID -- that point being voter suppression. If legitimate voters can show up and cast provisional ballots that will be counted once the state confirms the voter's status, then there is no suppression. Anyone eligible person can vote, ID or not.
Either way, Article III, Sections 1 and 2 are glaring flaws with Wisconsin's voter ID law and it seems unlikely that anyone with any familiarity with Wisconsin law would overlook them. Which means it's probable that no one from Wisconsin actually wrote this. This may prove to be a problem with ALEC's legislation mill, which turns out nearly identical legislation for different states. In their rush to bypass Washington and get nationwide laws passed at the state level, they don't seem to have been very interested in the details. Haste makes waste and, in this case, that waste was of Republican's time and energy jamming this thing through over the objections of the opposition party. I can tell you from firsthand knowledge, a lot of people signing those recall petitions were signing because of the voter ID law. In fact, my impression was that we would've gotten fewer signatures had the legislature not pushed this through. It may have done them more harm than good, in the end.
Because now those people get to vote in April elections -- and perhaps the recall in June -- without needing ID. Which means they can turn out in full force. And those people aren't very happy.