Frederica Freyberg:

But first, Wisconsin’s three-year-old voter identification law had a hearing before the state’s high court on Tuesday. Zac Schultz was there.

Zac Schultz:

In May of 2011, Governor Scott Walker signed the voter ID bill into law. It immediately faced multiple lawsuits, and nearly three years later, the Wisconsin supreme court heard oral arguments on the constitutionality of Act 23.

Lester Pines:

This case is not about policy. It is not about partisanship. It is not about politics. This case is about law.

Zac Schultz:

The court actually heard arguments on two different lawsuits. The first was filed by the League of Women Voters represented by Lester Pines. He argues the Wisconsin constitution does not give the legislature the authority to add additional regulations on who can vote.

Lester Pines:

Then the legislature has said you must now prove your identity through one of these forms of ID. That’s an additional qualification to vote. It is not in the constitution.

Zac Schultz:

The state, represented by assistant attorney general, Clayton Kawski, says the legislature can regulate voting registration.

Clayton Kawski:

It is a law that supports the registration requirements because it allows a registered voter to show up on election day and prove that he or she is the qualified, registered voter that he or she claims to be.

Zac Schultz:

The second case was brought by the NAACP represented by Richard Saks. They argue the law makes it harder for some people to vote because they don’t have the proper ID.

Richard Saks:

And for voters who are over the age of 80, 25%, nearly one in four elderly voters over the age of 80, do not have a photo ID.

Zac Schultz:

At a trial in 2012, they showed 10% of all registered voters don’t have a valid ID. That’s more than 300,000 voters. Most questions from the bench focused on when the burden on voters to get a legal ID became an infringement of the right to vote.

Ann Bradley:

The test then also asks us whether or not if it is a severe enough burden or a substantial enough impairment.

Clayton Kawski:

We don’t know whether it's a severe enough burden based on the record that was presented at trial. The plaintiffs only showed who lacks ID. They did not show that those folks also cannot get ID.

Zac Schultz:

Justice David Prosser noted his difficulties in getting an updated driver’s license.

David Prosser:

I had to drive to Appleton to get my birth certificate. I had to go to the bank to the safety deposit box. It was inconvenient to do that.

Zac Schultz:

Chief Justice Shirley Abrahamson asked what her now-decreased father would have needed since he didn’t drive and didn’t have a birth certificate, only naturalization papers that wouldn't qualify under the law.

Shirley Abrahamson:

How can he show that he’s an American citizen over the age of 18 and a resident.

Zac Schultz:

Justice Pat Roggensack noted, to get an ID you need to pay for a birth certificate, and compared that to a poll tax.

Pat Roggensack:

And what bothers me is this feels, though not universally, as was the case in Harper where there was a dollar and a half poll tax, it’s still a payment to the state to be able to vote. That bothers me.

Zac Schultz:

Republicans in the legislature have noted the legal challenges the bill is facing. The assembly has passed a bill that would allow a voter to swear at the polls they are too poor to get a birth certificate. The senate has not acted on the bill. Justice Michael Gableman seemed to hint at that legislation with one question.

Michael Gableman:

For instance, if there are members of the bench who believe that the payment would be tantamount to a poll tax, if the state removes all those or is compelled by this court’s construction of the legislation, may we do that?

Zac Schultz:

No matter how the Wisconsin supreme court acts, the voter ID bill might not be in place by this fall’s election. That’s because a similar lawsuit in federal court is pending. And no matter the outcome, that decision will likely be appealed to a federal appeals court.