Attorney General J.B. Van Hollen declined Friday to clarify statements that he was exploring ways to “have voter ID on election day,” even though the U.S. Supreme Court blocked its implementation late Thursday.

In light of the court’s ruling, opponents of the law and other experts said they saw no means by which the requirement to present photo identification at the polls could be put in force before the Nov. 4 election.

Also Friday, the 7th U.S. Circuit Court of Appeals, on a 5-5 vote, declined to have the full court revisit an earlier decision by three of its members finding the provision was constitutional and did not violate federal law.

But in a fiery opinion written for the five judges who wanted to hear the case, Judge Richard Posner called the voter ID requirement “a mere fig leaf for efforts to disenfranchise voters likely to vote for the political party that does not control the state government.”

Dana Brueck, a spokeswoman for Van Hollen, declined to expand on statements the Republican attorney general made Thursday saying he planned to work toward putting voter ID back in place for the election, now less than four weeks away.

It’s unclear how Van Hollen could overcome a decision by the nation’s highest court blocking implementation of the law. It had been on hold because of legal challenges between March 2012 and Sept. 12, when the three-judge appeals panel cleared the way to reinstate it. Thursday’s U.S. Supreme Court ruling blocked implementation of that decision.

In a statement Thursday, Van Hollen maintained the law is constitutional “and nothing in the Court’s order suggests otherwise.”

“We will be exploring alternatives to address the court’s concern and have voter ID on election day,” Van Hollen said.

John Ulin, an attorney for the plaintiffs, said, “Obviously, we don’t know actually what the attorney general means by that statement. But it appears the U.S. Supreme Court has spoken on this issue.”

Madison City Clerk Maribeth Witzel-Behl said the city believes voter ID is on hold at least through Election Day.

“I asked the city attorney if there’s any chance this will change and he said, ‘No, this is it for November,’ ” Witzel-Behl said.

The high court’s 6-3 action dealt only with the question of whether the law should be implemented for the high-stakes Nov. 4 election, which pits Republican Gov. Scott Walker against Democratic challenger Mary Burke and will also decide who becomes the state’s next attorney general.

A separate question is, does the law violate the U.S. Constitution and the federal Voting Rights Act as opponents claim? Judges at the state and federal level have come to opposite conclusions.

The law is being challenged by plaintiffs including the American Civil Liberties Union, the Advancement Project, which represents the League of United Latin American Citizens and other plaintiffs including voters who lack the required identification to vote. They argue the requirement could disenfranchise an estimated 300,000 registered Wisconsin voters — many of whom are poor, elderly, students or minorities — who lack the necessary IDs, such as a driver’s license.

“We are likely headed back to the Supreme Court on the merits,” Ulin said.

Clerks shift gears

Thursday’s Supreme Court decision also had practical effects for those responsible for running Wisconsin elections and educating voters.

Witzel-Behl said the city was scaling back efforts to hire hundreds of additional poll workers who would have been needed to check photo identification of voters at the polls. Dane County Clerk Scott McDonell said he is relieved election officials won’t have to deal with the requirement but said there still will be some voters unsure about whether a photo ID is required to vote.

“I don’t think we can escape voter confusion now,” he said. “But with this decision, if someone is confused, the likelihood they’ll be able to vote is greatly increased now.”

The Government Accountability Board advised municipal clerks to continue absentee balloting without photo identification. Clerks had been instructed to contact everyone who had requested or cast an absentee ballot to send in a copy of a photo ID for it to be counted. Those ballots will now be counted without additional identification, the GAB said in a memo to clerks.

In Madison, about 500 absentee ballots for voters who had not yet provided photo IDs will now be mailed out, Witzel-Behl said.

Work continues

Anita Johnson, an organizer with Citizen Action of Wisconsin, said she would continue to visit African-American churches and other groups to inform them about voting. Now, she’ll work to get the message out that a photo ID is no longer required.

“I found the people that were the most affected by this (voter ID) were low-income, senior citizens and students,” she said.

Assembly Speaker Robin Vos, R-Rochester, called the Supreme Court decision “surprising” and “disappointing” but vowed to continue pushing to implement voter ID. The law is “supported by a vast majority of the public” and is “common-sense legislation that is needed for honest and fair elections,” he said.

Senate Minority Leader Chris Larson, D-Milwaukee, said he was “thrilled” by the decision and called on the governor and Legislature to “stop defending this oppressive law” and “quit wasting taxpayers’ money.”

Democratic attorney general candidate Susan Happ also praised the ruling and said she hopes the law ultimately is found unconstitutional. Brad Schimel, the Republican candidate, criticized Happ, saying the job of the attorney general is to “defend Wisconsin’s law and constitution.”

Five judges rip law

Friday’s 43-page opinion by Posner was particularly pointed and comes after Posner had raised questions about whether judges who have upheld voter ID laws — himself included — fully understood their impact. Posner wrote the 7th Circuit decision upholding the voter ID law in Indiana, later affirmed by the U.S. Supreme Court.

The three 7th Circuit judges who found Wisconsin’s law to be constitutional said it was similar to the Indiana law. But Posner said Wisconsin’s law is much more restrictive in numerous ways, potentially disenfranchising many times more voters.

Posner, who was nominated to the court by Republican President Ronald Reagan in 1981, concluded that laws such as Wisconsin’s are partisan ploys designed to put roadblocks mainly in the way of low-income and minority voters who tend to vote for Democrats. Citing various studies and statistics, Posner wrote that voter impersonation fraud is more rare than being struck by lightning.

He called the decision written by his three colleagues a “fact-free cocoon.”

“As there is no evidence that voter-impersonation fraud is a problem, how can the fact that the Legislature says it’s a problem turn it into one? If the Wisconsin Legislature says witches are a problem,” he wrote, “shall Wisconsin courts be permitted to conduct witch trials?”

Contact Dee J. Hall at or 608-252-6132. Contact Matthew DeFour at or 608-252-6144.


Matthew DeFour covers state government and politics for the Wisconsin State Journal.