A member of the Wisconsin Supreme Court's conservative majority said Tuesday she's troubled by the state's voter photo ID requirements, saying it's not fair that people who lack identification may have to pay for supporting documents to obtain it.
The League of Women Voters and the NAACP's Milwaukee branch have filed separate lawsuits challenging the Republican-authored voter ID mandate. Both cases have wound their way to the Supreme Court; the justices spent more than three hours listening to oral arguments in a packed hearing room Tuesday.
The lawsuits face an uphill fight given the court's ideological makeup. Surprisingly, though, Justice Patience Roggensack said the provisions were troubling because people who lack acceptable IDs for voting would have to pay for copies of supporting documents, such as birth certificates, to get them.
"It's still a payment to the state to be able to vote," Roggensack said. "That bothers me."
The justices mused about whether they could erase fees for copies of birth certificates and other records, but Chief Justice Shirley Abrahamson, part of the court's two-justice liberal minority, said that wouldn't go far enough to help Wisconsin voters who were born out of state.
It's difficult to draw conclusions about how the court might ultimately rule from the justices' statements; they often play devil's advocate during oral arguments.
The photo identification law has been a bitter bone of contention since GOP lawmakers put it into place in 2011. Republicans argue the measure will help fight voter fraud; Democrats counter widespread fraud doesn't exist in Wisconsin and the requirement will keep poor people, immigrants and senior citizens from voting.
The league's attorney, Lester Pines, told the justices Tuesday that lawmakers have no authority to force voters to meet qualifications beyond age and residency requirements set out in the constitution.
"This law says everyone in this state must have the government verify who they are," Pines said. "The problem is that this 'papers, please' law requires additional qualifications beyond what is required by the constitution."
NAACP attorney Richard Saks, meanwhile, argued no one has been arrested in Wisconsin for impersonating another voter, negating the state's argument that the law is necessary to prevent fraud.
What's more, he said, people who lack an acceptable voting ID face long lines at Division of Motor Vehicle offices as well as multiple trips to other government agencies and fees for obtaining supporting documents such as birth certificates and Social Security cards. State law allows counties to charge $20 for a copy of a birth certificate, he said.
"That becomes a functional handicap ... and an impairment of the right to vote," Saks said.
Wisconsin Justice Department attorney Clayton Kawski is defending the law on behalf of Republican Gov. Scott Walker's administration. He countered lawmakers can legally impose registration requirements and the voter ID mandate supports registration. The mandate applies to all voters and allows people who lack IDs to cast provisional ballots, he added.
He also argued 90 percent of Wisconsin residents already have IDs that comply with the law and the NAACP hasn't shown that people who lack ID can't get one.
"Our position is this is a reasonable law," Kawski told the justices.
Abrahamson said the provisions on their face could impair or destroy many people's right to vote. The case hinges on what is reasonable election regulation, she said.
Justice Michael Gableman, another member of the conservative majority, pressed Pines and Saks, and got Pines to concede the law probably would be constitutional if the economic barriers to obtaining an ID vanished.
During an exchange with Kawski, the justice stated that people without IDs have a year between elections to get them. He also believes opponents are confusing inconvenience with an assault on their rights, he said.
Gableman told Saks that just because no one has been prosecuted for voter fraud doesn't mean it isn't happening.
It's unclear when the high court might rule. The justices don't face any deadlines.
Whatever they say may not be the last word on voter ID in Wisconsin. The American Civil Liberties Union and the League of United Latin American Citizens have each filed a lawsuit in federal court in Milwaukee. Judge Lynn Adelman held a joint trial in November but it's unclear when he might rule.