The Wisconsin Supreme Court heard arguments this week on a controversial new voter I.D. law supported by Governor Scott Walker.
Over the last several years, voter I.D. laws passed by state legislatures have been making it harder for poor people, students, the elderly, and minorities to vote.
Attorney General Eric Holder has compared these laws to the poll tax, which was created to deliberately suppress the black vote in the South in the Jim Crow era.
The League of Women Voters and the Milwaukee chapter of the NAACP argued in court on Tuesday that the law deprives citizens of their voting rights.
And, Democrats and civil rights activists point out, the people who will be burdened by the law also happen to be Democratic voters, so suppressing their vote benefits Republicans.
The suspicion that voter I.D. is really an effort to suppress votes by minorities, students, and the poor is further exacerbated by the lack of evidence that in-person voter fraud is actually a problem.
The NAACP's attorney Richard Saks pointed out to the court that there has not been a single case of such voter fraud charged in Wisconsin.
Supreme Court Justice Michael Gableman replied that just because no one has been detected committing in-person voter fraud doesn't mean it is not a problem.
"It's ridiculous," Lester Pines, the attorney who represented the League of Women voters said after the hearing. "We could pass a law that says aliens from outer space aren't allowed to vote--then that problem would be taken care of."
"The conservative argument is that there might be voter impersonation, and the fact that it hasn't been detected proves that it exists," he added.
The harm from voter I.D., by contrast, is real Pines and Saks argued. And both conservative and liberal justices on the court seemed troubled by at least some of the points they raised.
"My sense is that a majority of justices appear to have some problems with the law," Pines said after the arguments.
Among those problems is the fact that the government will impose a fee on citizens before they can vote, since those who don't have proper I.D. will have to pay the government to obtain a copy of their birth certificates.
"That bothers me," said Justice Patience Roggensack.
The Wisconsin Constitution expressly forbids the state legislature from passing any law that "impairs or destroys the right to vote," Pines noted.
Wisconsin's voter I.D. law, with its six very specific document requirements that voters must meet in order to prove their identity, violates the state's constitution, he argued.
A voter may not use a picture I.D. from the workplace, or a sworn affidavit that they are who they say they are, he pointed out. And the process to get the proper documentation can be onerous, requiring multiple trips to multiple government offices, Saks pointed out.
But, Justice David Prosser asked Pines, don't voters already have to present identification if they opt to register at the polls?
"No," said Pines. A citizen can use a sworn affidavit, an electric bill, or other proof of age, residency, and citizenship to register and be entered into the voting rolls, "then that person crosses the room and is forbidden to vote" if he doesn't also have a different I.D. to prove he is not impersonating someone else.
Chief Justice Shirley Abrahamson told Assistant Attorney General Clayton Kawski, who represented the state about her father, a naturalized U.S. citizen who had lived in the United States since the 1920s, and who's naturalization papers hung in a place of honor in their family home.
"He never had a driver's license. He was not born in the United States." In his home country, Abrahamson said, it would be hard to find his birth certificate, if he even had one. "He was not of a favored religion," she observed, so it may not have existed.
"So how does he fit?" Abrahamson asked.
Kawski replied that the topic of her father was not germane, since the argument was about legislative authority, not whether the law is fair.
"It shows to me that on its face this is a regulation that impairs or destroys the right to vote," Abrahamson rejoined.
Kawski replied that the statute does not discriminate." It applies universally," he said.
Abrahamson noted that "the concept that everyone is treated equally" is not that same as nondiscrimination. "Everyone can sleep under the bridge or not sleep under the bridge. It may look quite equal, but it's not in its effects."
Kawski said, "That's not the test in this case."
Later in the argument, after a long discussion of the specific forms of I.D. voters must show, Abrahamson broke in again.
"I keep coming back to my father," she said.
"Here's what I think I'd have to do" so he could vote, she added, noting that he had never missed an election in his life. "I think I'd have to register him at the University of Wisconsin. If they would take him, I'd have to pay for a student ID card... Or I could go to a court and ask the court to issue an order that he is who he says he is. It would cost a filing fee of about $160, and I don't know if the court would do it."
"Would you accept a court order?" she asked Kawski.
"No, that would not be accepted," he replied
Abrahamson: "Well, you are consistent."
Kawski: "Thank you."
Kawski went on with his argument before Justice Gableman, clearly troubled, broke in:
"So how can her father vote?"
The only way, Kawski allowed, was to "get a birth certificate."
"Certainly there are folks out there who would have trouble," he conceded, "but the vast majority can comply."
Most people in Wisconsin have no problem getting a copy of their birth certificates, and other needed documents from a local Department of Motor Vehicles or Social Security office. Kawski said that "90 percent" would have no trouble.
The state seemed to be arguing that depriving people of a fundamental constitutional right is okay, so long as it's only 10 percent of the populace.
"That really shows what this is all about," Pines says. "It's not that it's conscious racism. The average upper middle class person doesn't have a clue what it means to be a poor working person who can't take off time to go to the DMV in the middle of the work day."
Still, the conservatives on the court were wrestling with a law that sets up significant bureaucratic hurdles to voting. At one point Justice Annette Ziegler asked Pines, "What about the right to bear arms?"
The question seemed random. But it highlighted the trouble for an ideological conservative with an intrusive government regulation on a fundamental constitutional right.
The court set no deadline to rule. But there is at least a glimmer of hope that the conservative majority court will rule against their Republican allies in this case.
"If they do," says Pines "It's a monumental political defeat for Scott Walker."