On April 1st, Wisconsinites will choose between cementing the progressive majority on the Wisconsin Supreme Court that is lying in wait to begin unraveling all the conservative reforms implemented during the Governor Scott Walker-era or returning to a conservative majority that respects separation of powers and the rule of law. Lesser discussed, but equally important, Wisconsin voters will also decide whether the state constitution should be amended to include a voter ID requirement already protected in state statute.
This presents a challenge for the Wisconsin progressive elite. The progressive running for a ten-year term on the state’s high court, Dane County Judge Susan Crawford, has publicly stated the requirement operates “very much like a poll tax” and is “draconian.” Following passage of 2011 Act 23, she represented the League of Women Voters in challenging the law. And most recently at the only debate against her opponent, Waukesha County Judge Brad Schimel, she refused to answer whether she was going to vote for the constitutional amendment and deflected when asked whether she could review any voter ID-related challenge in light of her past representation of anti-voter ID plaintiffs.
The challenge for Judge Crawford is that Wisconsinites overwhelmingly support voter ID as a commonsense election integrity measure. According to the Pew Research Center, a whopping 81% of Americans support requiring all voters to show a government issued photo ID to vote. The well respected Marquette University Law School poll found 74% of Wisconsinites support the requirement.
Judge Crawford faces the unique challenge of signaling to the extreme elements of her base that she remains open to undermining the voter ID requirement without alienating the vast majority of Wisconsinites likely to approve the constitutional amendment. This would be no easy feat considering most Wisconsinites believe free and fair elections, conducted according to law, with transparent and verifiable results, are absolutely essential to our republic. Questions of election administration are resolved either in state law or by the Wisconsin Elections Commission; either way, they regularly end up before the state courts. Public confidence in our elections depends on a court that follows the law.
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Yet the current majority on the Wisconsin Supreme Court, all of whom have publicly endorsed Judge Crawford and are actively supporting her, has displayed a disregard for the law as it is written and previous election integrity decisions. In the 2022 case Teigen v. Wisconsin Elections Commission, the conservative led Court held absentee ballot drop boxes did not meet statutory requirements for ballot security. But just last year, in Priorities USA v. Wisconsin Elections Commission, the Court reversed that holding. The only element that changed was the replacement of conservative Justice Roggensack with liberal Justice Protasiewicz.
Other election integrity measures could easily be reopened by an emboldened progressive majority. In the 2020 case Jefferson v. Dane County, the conservative majority granted a petition from the Republican Party of Wisconsin to clarify that the “indefinitely confined voter” exception could not be abused to avoid the voter identification requirements of state law. The Court rejected an attempt by the Dane County Clerk to expand the “indefinitely confined voter” under the guise of COVID to create a permanent vote-by-mail option without a requirement to show ID.
Other issues remain on the horizon, including the legal authority of the Wisconsin Elections Commission to issue guidance, including on the requirements for witness signatures on absentee ballots (some issues were left unresolved after the 2020 Trump v. Biden decision), interpretation of the constitutional amendment barring non-citizen voting approved last fall with over 70% support, and efforts to clean up the voter rolls (a question initially confronted in the 2021 State ex rel. Zignego v. Wis. Elections Commission decision).
But blazing on the horizon is the issue of Congressional maps. In light of the razor thin Republican Congressional majority, recently Judge Crawford willingly participated in a zoom call with DC strategists to discuss the impact of another redistricting decision in Wisconsin focused on congressional lines. Never mind the ethical concerns with a judicial candidate appearing on such a call, Wisconsinites of all stripes should be concerned that the roadmap to undue the state’s congressional maps has already been laid. In 2023 the Court, in what can only be described as a raw exercise of judicial power, gutted the state legislative maps in Clarke v. Wisconsin Elections Commission, despite approving the maps only two years prior in Johnson v. Wisconsin Elections Commission.
Voter ID remains a top issue of concern for many Wisconsinites. In 2014 the Wisconsin Supreme Court upheld voter ID in two separate cases, Milwaukee Branch of the NAACP v. Walker and League of Women Voters of Wisconsin Education Network, Inc. v. Walker. If another voter ID case is brought, the current majority could reverse these precedents just like it did Priorities USA and Clark. All Judge Crawford needs to do is hoodwink the same voters that are likely to enshrine the voter ID requirement into the state’s constitution into believing she will not immediately vote to undermine the bedrock of Wisconsin election integrity.
– Jake Curtis is general counsel at the Institute for Reforming Government. He previously served as an agency chief legal counsel in the Walker administration and as an elected Ozaukee County supervisor.
