A recent lawsuit accuses the state of Wisconsin of disenfranchising an eligible voter who had lost the use of her hands, because she could not sign a government document to get a voter ID. Another voter, who was born in a German concentration camp and could not produce a birth certificate, had to go to extraordinary lengths at the state’s Department of Motor Vehicles in order to vote. Strict state voter-identification laws are proving disconcerting on the ground. So why are the courts bending over backward to uphold them? In 2014, the Wisconsin Supreme Court considered whether Wisconsin’s stringent voter-ID law violated the Wisconsin constitution’s right to vote. The court found that the law would impose severe burdens on voters who could not afford to pay for underlying documents, like an out-of-state birth certificate, to prove identification, and on those voters who, through no fault of their own, could not establish their identity under the exacting rules established by the state.
To save the Wisconsin voter-ID law from being declared unconstitutional, however, the state’s supreme court, dominated by conservatives, engaged in a creative reading of Wisconsin law—one that essentially compels the state’s Department of Motor Vehicles to help these voters prove their identity and get ID cards. Wisconsin regulations require “officials to get birth certificates (or other qualifying documents) themselves for persons who ask for that accommodation on the basis of hardship.” Imagine relying on the DMV for such an accommodation. Nevertheless, not only did this saving construction sink the state challenge, but the federal courts relied on it to reject a challenge to Wisconsin’s law that was based on the federal Constitution and the Voting Rights Act.
Wisconsin is not alone in seeing a theoretical “softening” of voter-ID laws as a means of blunting legal attacks on their ultimate validity. In a 2008 case, Crawford v. Marion County Election Board, the U.S. Supreme Court rejected an overall (or “facial”) challenge to Indiana’s tough voter-ID law, but it left the door open for so-called “as applied” challenges from voters who face special burdens obtaining IDs. South Carolina, in the face of a federal lawsuit against its strict voter-ID law, adopted a special rule allowing voters who face a “reasonable impediment” to acquiring a voter-ID card to nonetheless be able to vote. Here’s how it works in South Carolina: A person must show their non-photo voter-ID card, sign an affidavit detailing the reasonable impediment, and then have that notarized—all at the polling place. On the eve of trial in a lawsuit challenging North Carolina’s rigid voter-ID law, the state adopted a similar “reasonable-impediment” exemption to its voter-ID law. A federal court recently cited that exemption to deny the NAACP a motion to stop North Carolina from using its voter-ID law until the legality of it was fully hashed out in court.