Seventh Circuit Review


In 2011, Wisconsin Governor Scott Walker enacted 2011 Wisconsin Act 23. This law required that most of the state's voters show an acceptable form of photo identification to cast a ballot. State officials contended the regulation was necessary to detect and prevent fraud, promote public confidence in the electoral process, and improve election administration. On the other hand, critics of the law argued it was merely a partisan attempt by Republican legislators to suppress the turnout of various subgroups that overwhelmingly tend to vote Democratic.

In Frank v. Walker, voters and advocacy organizations sued, claiming the requirement placed an unjustified burden on the right to vote and, therefore, violated the Equal Protection Clause of the Fourteenth Amendment. At the trial level, the Federal District Court for the Eastern District of Wisconsin found Act 23 unconstitutional and ordered an injunction preventing implementation of the law. On appeal, the United States Court of Appeals for the Seventh Circuit reversed the lower court’s ruling and upheld the law. The U.S. Supreme Court declined to review the case.

Courts evaluating a constitutional challenge to election regulations such as Act 23 must weigh the asserted injury to the right to vote against the legitimate interests advanced by the state. Absent a clear imbalance, courts will presume the state's interests are sufficient. This analysis provides a clear and consistent method for courts evaluating such challenges; but, this approach ignores the political nature of election law. Instead, courts should permit an initial inquiry into improper partisanship to ensure more equitable outcomes. Accordingly, where plaintiffs can demonstrate a strong likelihood that passage of an election regulation was motivated primarily by political interests, courts should grant their claims deference. Then, the state should bear the burden of proving that its regulatory interests outweigh the harm imposed on voting rights.

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