Here & Now

Janine Geske Discusses Voter ID Oral Arguments

Frederica Freyberg:

Many observers feel the future of voter ID nationwide will eventually be settled by the US supreme court. We want to get the impressions of this week’s Wisconsin supreme court hearing from an observer who was once a participant, former justice Janine Geske who now teaches law at Marquette university. Justice, thanks very much for being here.

Janine Geske:

My pleasure.

Frederica Freyberg:

So what do you make of the concerns about the costs and inconvenience of getting an ID raised by conservative justices on the court?

Janine Geske:

Well, it was interesting. It reminds everybody in the room that the justices are human as well, and when an argument touches something that they’ve been involved in, you hear that happen. So whether it was Justice Prosser having to drive all the way to Appleton recently to get his birth certificate and the inconvenience, or other discussions about birth certificates. You know, that’s a small piece of the big argument. But it was interesting because it made it more human and it was anecdotal from the members of the court. But ultimately they will decide, you know, on the constitutional argument whether or not– whether Act 23 is constitutional under the Wisconsin constitution.

Frederica Freyberg:

So having listened to those oral arguments, could you get a sense which way this court as a whole might go?

Janine Geske:

I think it’s hard to predict, but you could hear that there were members of the court that were troubled with different aspects of the law. One of the aspects was the birth certificate issue. For people who do not have birth certificates, they cannot– and don’t have a driver’s license, they cannot get an ID from the state of Wisconsin, and therefore they can’t vote unless they get that certificate. There’s been a long history of US supreme court cases that say you can’t have a poll tax. You can’t require people to pay money to vote. And they were troubled by that. And so there were some justices that talked about, well, could we write that out of the law. But the chief justice, I think in the later argument, raised the issue that, well, we can’t do anything about it out of state. What happens when somebody was born in Tennessee and doesn’t have a birth certificate, or out of the country? And so it gets problematic if the court tries to somehow carve a law out of what is there and keep it constitutional. And I think that they were beginning to see that that part might be difficult. Clearly there were different views from, you know, there are no cases of prosecutions to, you know, how do we keep that fraud and it’s pretty hard to enforce that law if we don’t require IDs at the polls.

Frederica Freyberg:

So Wisconsin’s voter ID is supposed to, as you’ve been discussing, kind of prevent voter impersonation, but, as you say, opponents say there’s never been a proven case of that. So how meaningful is the intent of this law for justices who have to decide on it now?

Janine Geske:

Well, it’s not so much the intent. It is really looking at weighing the very important or sacred right to vote versus sort of the state’s interest in preventing voter fraud. And so in looking at the issues, one of the factors in one of the cases, the NAACP, there’s a lot of evidence that there are about 300,000 people in this state who don’t have the necessary ID right now, and may have to either spend money or go through a lot of effort to get it. So that’s part of the argument. Part of the argument with the League of Women voters is that the legislature did not even have the constitutional power to put this qualification on voters. And so you’ve got two separate arguments joined in the same case all attacking Act 23 on different grounds. And, as we know, the courts below, the court of appeals, agreed with the state on the League of Women Voters case, but the other case has not been decided by the court of appeals and, both trial courts, agreed with those that are objecting to the law. So there’s a lot of debate on this and it will be very interesting to see what the court does.

Frederica Freyberg:

There is a lot of debate and there are a lot of court cases. What are the odds, do you suppose, that this law would actually be in place in Wisconsin for November elections?

Janine Geske:

Well, I think– it’s going to– well, there are a couple of things that are ongoing. I believe that this court will decide these cases by June. So if in fact the courts– if a majority of them say that the law is constitutional, in those cases you could proceed. But there’s a little asterisk there. There’s a federal court case pending in the eastern district of Wisconsin in front of Judge Adelman, and he’s taken testimony that those that support the law are going to have to win on all grounds and not have any injunctions in place by the fall. And it’s possible, but, you know, there’s certainly a chance that the federal court might intervene, in which case we would still not have voter ID in the fall.

Frederica Freyberg:

So very briefly, with just about half a minute left, do you expect the US supreme court to weigh in again on voter ID?

Janine Geske:

I don’t know that they’ll weigh in on this case. The problem with our law is that there are no alternatives. They’ve looked at the issue before at a law that allowed people to file affidavits of who they are in order to be able to get the ID. Wisconsin doesn’t allow that. And I think it’s unlikely that they’re going to weigh in here. But they certainly could. And it’s a big issue nationally, so they may decide to take our case or someone else’s case down the road.

Frederica Freyberg:

All right, Justice. Thank you very much for joining us.

Janine Geske:

You’re welcome.