David Michael Miller
It was not so long ago that Republican Gov. Tommy Thompson had so much appeal for Democrats that he carried both Dane and Milwaukee counties. Thompson pushed to get 65% or 70% of the vote, but nowadays, he told the Milwaukee Journal Sentinel, the parties say, "How do I get to 50% plus one?'"
In Thompson's day, no Republicans advocated for photo ID. But in this era of extreme polarization, where it's all about getting a higher percentage of your supporters to the polls, GOP legislators overwhelmingly agree photo ID is needed. They deny it's about creating a barrier for mostly Democratic low-income and minority voters and depressing their turnout. No, no, it's all about combating voter fraud.
That claim was put to the test in the courtroom of U.S. District Judge Lynn Adelman, who heard extensive testimony from both sides before issuing an April 29 decision declaring the state photo ID law unconstitutional. Defending the law was a skilled lawyer, Wisconsin Attorney General J.B. Van Hollen, who had every chance to present evidence proving voter fraud occurs. But if you read his huge final brief, Van Hollen had very weak arguments on that point.
"The defendants could not point to a single instance of known voter impersonation occurring in Wisconsin at any time in the recent past," Adelman's decision states.
Testifying for the plaintiffs was Rutgers University Prof. Lorraine Minnite, who specializes in researching voter fraud. She studied elections in Wisconsin in 2004, 2008, 2010 and 2012, analyzing newspaper databases, news releases by the attorney general, criminal complaints, decisions by state courts, and documents issued by the Government Accountability Board, and could identify only one case of voter impersonation fraud. That case did not involve in-person voter impersonation, which the photo ID requirement is meant to prevent.
M.V. Hood III, political science professor at the University of Georgia, appeared for the defense but nonetheless provided more evidence casting doubt on voter fraud. Hood compared a database of deceased registered voters to a database of people who had cast ballots in the 2006 elections in Georgia, to see if any votes were cast in the name of dead people. He found no evidence of this.
All Van Hollen could offer was the testimony of Milwaukee County Assistant District Attorney Bruce Landgraf, who said there are "normally one or two [votes] per major election that remain unexplained that no amount of inquiry seems to explain." Van Hollen contended these could involve voter impersonation.
"I suppose that's possible," Adelman's decision noted, "but most likely these cases also have innocent explanations" that the DA's office "was simply unable to confirm." And given that there are over 660,000 eligible voters in Milwaukee County, and the DA's office only finds two unexplained cases each major election, that's less than one questionable vote cast per 330,000 eligible voters, Adelman noted. Landgraf's testimony shows potential voter-impersonation fraud is so rare "that no rational person...could be concerned about them."
The reality is that it's very difficult to commit such fraud, Adelman added: "A person would need to know the name of another person who is registered at a particular polling place, know the address of that person, know that the person has not yet voted, and also know that no one at the polls will realize that the impersonator is not the individual being impersonated. The defendants offered no evidence...that it is easy to obtain this knowledge."
The media quoted Adelman's most over-the-top conclusion, that the testimony shows "a person would have to be insane to commit voter-impersonation fraud," but left out the rest, that the potential penalty of a $10,000 fine and three years of imprisonment is "extremely high in comparison to the potential benefits...nothing more than one additional vote for a preferred candidate...which is unlikely to change the election's outcome."
Compared to the rare case of potential voter fraud the law could stop, its impact as a barrier to voting was much clearer. Anywhere from 167,000 voters (according to a plaintiff's expert) to 317,000 voters (prosecution expert) lack an ID, and both experts found they were much more likely to be minorities. Many of them lack a birth certificate needed to get the free state photo ID, including an estimated 25,000 in Milwaukee County, and may not be able to afford the $20 cost for a birth certificate.
And often the birth certificates for minorities lacking photo ID were issued in other states and cannot be found. One program in inner-city Milwaukee, at St. Benedict the Moor, provided financial assistance to help people pay for their birth certificate, but in 23% of 700 cases handled, the person was unable to track it down.
Wisconsin is one of four states where photo ID laws were recently struck down, perhaps because opponents have gotten better at presenting evidence to show that fraud is rare. Certainly that was the case in the courtroom of Judge Adelman. But that won't stop the law's proponents from appealing, or drafting a new law. The fight over this issue is far from over.
Bruce Murphy is the editor of UrbanMilwaukee.com.