A federal judge said Wednesday the state has shown a “disturbing pattern” of failing to foresee problems with the rollout of Wisconsin’s voter ID requirement — but that he’s unlikely to suspend the law before Election Day.
Judge James Peterson signaled in a court hearing that he is unlikely to grant a request by plaintiffs challenging the law to enjoin, or lift, it so close to Nov. 8. Peterson said he’s not certain he even has authority to do that.
But Peterson indicated he likely will require action by the state to ensure the public is better informed about a petition process for people to get a temporary credential allowing them to vote. The process is for a very small subset of voters who face real hardships complying with the law because they lack both an ID valid for voting and the underlying documents, such as a birth certificate, needed to obtain one.
“There really hasn’t been any real outreach” by the state to publicize the process, Peterson said Wednesday. He spoke after hearing testimony in U.S. District court in Wisconsin’s Western District.
Parties in the case will reconvene Thursday, when Peterson said he expects to issue specific instructions.
Peterson scolded the state Wednesday for its implementation of the voter ID law — particularly the Division of Motor Vehicles, which is tasked with providing free IDs to people who lack them. The process is getting its first real test this year, the first presidential election year in which voter ID is in effect.
“The state, particularly the DMV, responds to litigation. But it doesn’t actively anticipate problems, even when the problems are really predictable,” Peterson told the state’s attorneys Wednesday.
Wednesday’s hearing was prompted by a probe by the voting-rights group VoteRiders. Audio recordings by the group’s volunteers showed people who sought IDs were given incorrect information by DMV staffers at locations across the state.
The court case, one of two ongoing lawsuits against Wisconsin’s voter ID law, was tried in May. Peterson issued a July order requiring the state to promptly give temporary voting credentials to people who enter the petition process unless the state can show that person is ineligible to vote. The order also requires the state to make the public aware of the existence of the petition process. A federal appeals court later gave Peterson authority to enforce his order.
Two Democratic state election commissioners, Mark Thomsen and Ann Jacobs, also raised concerns about the state’s efforts to publicize the petition process in a letter to the court made public Tuesday.
Attorneys for the plaintiffs in the case, which include the liberal groups One Wisconsin Institute and Citizen Action of Wisconsin, responded by suggesting a course of action that falls short of fully enjoining the law. Attorney Bruce Spiva said Peterson could order that people who lack IDs be permitted to cast provisional ballots in the November election that would be counted unless the state could show the voter was ineligible.
Currently, a voter may cast a provisional ballot without an ID, but they must return to their municipal clerk by 4 p.m. on the Friday after the election to show their ID. If they do not, their vote will not be counted.
Spiva said problems that have been demonstrated with Wisconsin’s voter ID law indicate the burden of proving eligibility should be on the state, not the voter.
But there also are signs that trouble could arise from making major changes to voter ID procedures this close to the high-turnout presidential election. Michael Haas, administrator for the state Elections Commission, testified Wednesday that local election clerks don’t want to see more changes related to voter ID this close to an election, when early voting already is underway in many municipalities.
Attorneys for the state invoked a similar legal principle in their arguments to the court Wednesday; it holds judges should not “change election rules in the period just before the election.” An attorney for the state also said VoteRiders volunteers posed complex questions in an effort to “trip up” DMV staffers.