in the united states court of appeals...no. 16-3003 [consolidated with 16-3052] in the united states...

No. 16-3003 [Consolidated with 16-3052]

In the United States Court of Appeals FOR THE SEVENTH CIRCUIT

RUTHELLE FRANK, ET AL.,

PLAINTIFFS-APPELLEES-CROSS-APPELLANTS,

v.

SCOTT WALKER, ET AL.,

DEFENDANTS-APPELLANTS-CROSS-APPELLEES.

Appeal From The United States District Court

For The Eastern District Of Wisconsin, No. 2:11-cv-1128,

The Honorable Lynn Adelman, Presiding

DEFENDANTS-APPELLANTS-CROSS-APPELLEES’ EMERGENCY

MOTION TO STAY THE PRELIMINARY INJUNCTION PENDING APPEAL

BRAD D. SCHIMEL

Wisconsin Attorney General

MISHA TSEYTLIN

Solicitor General

Counsel of Record

DANIEL P. LENNINGTON

Deputy Solicitor General

Wisconsin Department of Justice

17 West Main Street

P.O. Box 7857

Madison, Wisconsin 53707-7857 [email protected]

(608) 267-9323

Attorneys for Defendants-Appellants-Cross-Appellees

Case: 16-3003 Document: 16-1 Filed: 08/01/2016 Pages: 23

TABLE OF CONTENTS

INTRODUCTION .......................................................................................................... 2

I. Wisconsin Adopts Both A Photo ID Law And A Comprehensive

Program For Granting Free Photo IDs To Every Eligible Voter ..................... 3

II. The District Court Undermines Wisconsin’s Photo ID Law By

Requiring The State To Permit Voters To Violate The Law For Any

Reason They Deem Subjectively Appropriate .................................................. 6

LEGAL STANDARD ...................................................................................................... 9

ARGUMENT .................................................................................................................. 9

I. Defendants Are Extremely Likely To Succeed On Appeal ............................... 9

A. Plaintiffs Have No Likelihood Of Success On The Merits .......................... 9

B. Plaintiffs Cannot Establish Irreparable Harm ......................................... 15

C. The Preliminary Injunction Harms The State And The Public ............... 16

II. A Stay Is Warranted Because The State And The Public Will Suffer

Irreparable Harm, Whereas Plaintiffs Will Suffer No Harm ........................ 19

CONCLUSION ............................................................................................................. 20


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INTRODUCTION

The district court’s preliminary injunction—requiring the State to permit a

subjective affidavit exception to its photo ID law—disrupts a regime that already

provides that every eligible voter who puts forward a “reasonable effort” will receive

a free photo ID. Frank v. Walker, 819 F.3d 384, 386 (7th Cir. 2016) (“Frank II”). The

requirement that the State create and implement a subjective affidavit exception

should be stayed because it encourages violations of the law and wastes public re-

sources without any benefit. Notably, given that the district court required the

State to publicize the affidavit procedure in sufficient time before the November 8,

2016, general election, entering a stay as soon as possible after the completion of

the August 9, 2016, primary election is necessary to avoid voter confusion.

Under Wisconsin law, every eligible voter will receive a free photo ID with

reasonable effort. The overwhelming majority can get a free photo ID by “making a

trip to the [D]MV, gathering the required documents, and posing for a photograph.”

Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 198 (2008) (opinion of Stevens,

J.). To assist the few voters who do not have “required documents,” Wisconsin, in

2014, created the ID Petition Process (IDPP). Under the IDPP, as promulgated in

2014, the Wisconsin Division of Motor Vehicles (“DMV”) investigated and then is-

sued a free photo ID when it determined that the applicant was an eligible voter.

For a very small number of individuals, the 2014 IDPP accommodation proved prob-

lematic in some respects. The State comprehensively addressed these concerns ear-

lier this year, such that it is now legally mandatory that every IDPP applicant


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receive a free photo ID upon application and can be denied an ID only after a de-

termination of fraud, ineligibility, failure to respond to DMV inquiries for half a

year, or voluntary withdrawal from the IDPP. This is how Wisconsin’s law “works

today,” Frank II, 819 F.3d at 388, and it protects the rights of all voters.

An immediate stay of the district court’s unlawful preliminary injunction is

necessary to avoid subjecting the State and the public to substantial, irreparable

harm. The district court provided that the affidavit must permit voting without

photo ID due to, inter alia, “lack of transportation” or “lack of birth certificate,” even

though these do not satisfy the “reasonable effort” standard, given the accommoda-

tions in Wisconsin’s current law. Worse still, the affidavit permits voters to list any

other reason for not having a photo ID, and the district court mandated that no rea-

son given—including “Crawford and Frank were wrongly decided” or “the DMV is

haunted”—be called into question. The district court’s requirement that the State

expend substantial resources to implement and publicize a procedure that encour-

ages violations of the law demands a stay.

STATEMENT

I. Wisconsin Adopts Both A Photo ID Law And A Comprehensive

Program For Granting Free Photo IDs To Every Eligible Voter

In 2011, the Wisconsin Legislature enacted a photo ID law. 2011 Wis. Act 23.

Under Wisconsin’s photo ID law, an eligible voter must present one of ten forms of

proof of ID to vote. Wis. Stat. §§ 5.02(6m), 6.79(2)(a), (2)(d), and 6.87(1). Pursuant to

a free ID program, DMV will issue a free photo ID card if an elector offers proof of:

(1) name and date of birth; (2) identity; (3) residency; (4) U.S. citizenship or other


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lawful status; and (5) a social security number. R.287:2; see Wis. Admin. Code

§ Trans 102.15.1 DMV has issued over 420,000 free photo ID cards. R.287:3.

After the free ID program began, the State learned that a small number of

voters did not have documents that establish their U.S. citizenship, name, and/or

date of birth. To help these people, in September 2014, DMV created the IDPP.

R.287:3. Under the IDPP, individuals filled out a form and presented documents to

prove identity (any document with a signature or photograph), see Wis. Admin.

Code § Trans 102.15(4), and residency (such as a utility bill or paycheck), see Wis.

Admin. Code § Trans 102.15(4m). R.287:3–4. From its inception until May 12, 2016,

out of a total of 1,389 petitions, DMV successfully resolved 1,132 petitions by issu-

ing a free state ID, R.287:7, and of the remaining petitions, 138 were either can-

celled by the customer or suspended based on a lack of response from the applicant.

R.294:22. Only 52 petitions were ultimately denied. R.294:22.2 While the IDPP—in

its original form—successfully helped most applicants, the process did not prove ad-

equate for a very small number of voters.

1 Citations to the district court record are: “R.[ECF Entry Number]:[Page Number].” 2 For the majority of IDPP applicants, DMV issued a free ID within five days, after

simply searching certain official databases. R.287:4, 10. For more complicated cases, the

Compliance, Audit, and Fraud Unit took over, whose “primary goal is to issue state IDs to

whoever is eligible.” R.287:5. The investigators “engage[d] in numerous and varied efforts

in helping petitioners obtain IDs,” including “poring over ancient documents and forms,

searching various databases, examining . . . documents petitioners might provide, [ ] follow-

ing up with the petitioners on each possible lead,” “talk[ing] to family members, hospitals,

school districts,” and “tak[ing] whatever lead they can find in hopes that DMV can resolve

the process and move forward with issuing an ID.” R.287:6.


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On May 10, 2016, DMV adopted a rule that comprehensively addresses the

issues that arose under the IDPP. R.287:9. Under this current law, any petitioner is

automatically mailed, within six business days, either a permanent photo ID (if eli-

gibility can be determined quickly) or a temporary photo ID (if more time for inves-

tigation is needed). Wis. EmR1618, § 10(a); R.287:9. If the petition is filed during an

election week, then “DMV will issue a photo ID receipt by mail on the day that a

person makes an application.” R.287:10. If the petitioner gets a temporary photo

ID, this ID will be renewed automatically for a minimum of 180 days. R.287:9–10.

Importantly, the applicant will always get a renewing temporary photo ID—

unless (1) DMV determines (as it usually does) “that it is more likely than not that

the name, date of birth or U.S. citizenship provided by the applicant is correct,” Wis.

EmR1618, § 8, in which case the petitioner obtains a permanent photo ID; or, (2) as

happens rarely, DMV denies the petition because the petitioner has “committed a

fraud,” is not eligible to vote, has not responded to DMV inquiries for 180 straight

days, or has requested cancellation of the IDPP. Wis. EmR1618, § 8; R.287:9–10.

On Friday, July 29, 2016, the Western District of Wisconsin in One Wisconsin

Institute, Inc. v. Judge Gerald C. Nichol, Case No. 15-C-0324 (W.D. Wis. 2015), de-

termined that the IDPP was unlawful, after relying upon many of the same pre-

2016 examples that the district court in the present case cited. One Wisconsin, Dkt.

234:89–91. Importantly, however, the Western District then crafted a remedy that

is so strikingly similar to the changes that the State enacted into current law in

May 2016 that this remedy (inadvertently) confirms that the State has already vol-


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untarily addressed the issues that arose under the IDPP. Under the Western Dis-

trict’s remedy, any IDPP applicant will receive a permanent photo ID, which the

applicant can lose only upon a finding of ineligibility. Id. at 117–18. Under current

law, every IDPP applicant will receive either a temporary ID that will timely renew

or a permanent ID upon a finding of eligibility. See supra p. 5. Under either system,

IDPP petitioners will have a photo ID upon application, except in rare circumstanc-

es in which denial would be reasonable. The only other difference between the

Western District’s remedy and current law is that, beyond permitting denials upon

a finding of ineligibility, current law also permits the DMV to decline to renew a

photo ID if the applicant has committed fraud, has not responded a single time in

180 days, or has voluntarily asked to end the IDPP. These are measured, narrow

caveats, which balance the voters’ rights with the need to effectively investigate the

applicants’ eligibility, free from applicant fraud and total non-cooperation.

II. The District Court Undermines Wisconsin’s Photo ID Law By

Requiring The State To Permit Voters To Violate The Law For Any

Reason They Deem Subjectively Appropriate

On December 13, 2011, Plaintiffs filed this lawsuit challenging Wisconsin’s

photo ID law. R.1. On April 29, 2014, the district court decided that the photo ID

law, on its face, violated (as relevant to this appeal) the Fourteenth Amendment.

See Frank v. Walker, 17 F. Supp. 3d 837, 862–63 (E.D. Wis. 2014).

In Frank v. Walker, 768 F.3d 744 (7th Cir. 2014) (“Frank I”), this Court re-

versed, relying upon Crawford. Frank I explained that Crawford “concluded that

both the prevention of voter impersonation on election day and the preservation of


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public confidence in the integrity of elections justify a photo ID requirement.” Id. at

745. Crawford decided that the burdens encountered in obtaining a photo ID are not

significantly more demanding than the usual burdens of voting, adding that “[t]hese

observations hold for Wisconsin as well as for Indiana.” Id. at 746. After Frank I,

Plaintiffs sought to bring an as-applied claim, R.222; R.223:17–18, but the district

court denied this request. Frank v. Walker, 141 F. Supp. 3d 932 (E.D. Wis. 2015).

In Frank II, this Court reversed again, explaining that granting as-applied

relief to those who cannot obtain photo ID with “reasonable effort” is “compatible

with” Frank I and Crawford. 819 F.3d at 386–87. This Court also laid out three pos-

sible categories of voters who could not obtain a photo ID with “reasonable efforts.”

Id. at 385–86. Any appropriate relief for such voters, if they are shown to exist, must

not impact “the general application of Act 23 to the millions of persons who have or

readily can get qualifying photo ID.” Id. Critically, this Court noted that “[t]he

state’s administrative agencies may have made other adjustments,” and that the

district court must “permit the parties to explore how the state’s system works to-

day before taking up plaintiffs’ remaining substantive contentions.” Id. at 388.

After Frank II, Plaintiffs filed a motion for preliminary injunction, class certi-

fication, and a supplemental pleading. R.278. Plaintiffs relied upon the evidence

they developed in the original trial, evidence submitted before the Western District

of Wisconsin in One Wisconsin, and some short affidavits from individuals they

sought to add as Plaintiffs. R.279. The State repeatedly sought permission from the


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district court to develop a record showing that, under current law, all eligible voters

can obtain a photo ID with reasonable effort. R.285:3; R.275.

On July 19, 2016, the district court granted Plaintiffs’ motions, denied the

State’s requests to develop the record, and awarded class-based, preliminary relief

for the following class: “all those eligible to vote in Wisconsin who cannot with rea-

sonable effort obtain a qualifying photo ID.” R.294:7. The court found that some

Plaintiffs had standing despite the fact that the undisputed record evidence showed

that each would receive a photo ID with reasonable effort. R.287:11–12.

The district court also found that Plaintiffs had met class certification re-

quirements, while wrongly asserting that “DMV has already denied IDs to more

than 50 applicants who sought IDs under the DMV’s current rules.” R.294:8–10. In

fact, the record contains zero denials under the current IDPP procedure. The district

court then engaged in a lengthy explanation of several individuals who had prob-

lems obtaining photo ID under the pre-2016 IDPP, relying exclusively on testimony

from the One Wisconsin trial. R.294:22–30.

The court issued preliminary relief, ordering the State to implement and pub-

licize an affidavit procedure for the November 2016 election. R.294:42–43. This affi-

davit must allow each voter to “declare under penalty of perjury” that he or she has

“been unable to obtain acceptable photo identification with reasonable effort.”

R.294:43. The voter can then check: “lack of transportation,” “lack of birth certifi-

cate or other documents needed to obtain photo ID,” “work schedule,” “disability or

illness,” “family responsibilities,” or “other.” R.294:43. If the voter checks “other,”


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there is a space to identify any reason. R.294:43. Critically, the district court also

ordered that, as part of the affidavit procedure, “[n]o person may challenge the suffi-

ciency of the reason given by the voter.” R.294:43 (emphasis added). The plain im-

port of the court’s order is that anyone who lacks a photo ID can vote without one.

On Friday, July 29, 2016, the district court denied the State’s stay motion,

restating many of the reasons given in its preliminary injunction decision and re-

jecting the State’s arguments to the contrary. R.311.

LEGAL STANDARD

“The standard for granting a stay pending appeal mirrors that for granting a

preliminary injunction.” In re A & F Enters., Inc. II, 742 F.3d 763, 766 (7th Cir.

2014). “[W]e consider the moving party’s likelihood of success on the merits, the ir-

reparable harm that will result to each side if the stay is either granted or denied in

error, and whether the public interest favors one side or the other. As with a motion

for a preliminary injunction, a sliding scale approach applies; the greater the mov-

ing party’s likelihood of success on the merits, the less heavily the balance of harms

must weigh in its favor, and vice versa.” Id. (citations omitted).

ARGUMENT

I. Defendants Are Extremely Likely To Succeed On Appeal

A. Plaintiffs Have No Likelihood Of Success On The Merits

The district court granted preliminary relief for the following class: “all those

eligible to vote in Wisconsin who cannot with reasonable effort obtain a qualifying

photo ID.” R.294:7. To show likelihood of success, Plaintiffs would have to “demon-


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strate [their] compliance” with the requirements of Federal Rule of Civil Procedure

23 and related standing principles. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,

350 (2011). As relevant to the present motion, Plaintiffs must show that they are

“member[s] of the class which [they] seek[ ] to represent at the time the class action

is certified by the district court.” Sosna v. Iowa, 419 U.S. 393, 403 (1975). And

Plaintiffs must “demonstrat[e]”—beyond “mere speculation”—that enough Wiscon-

sinites fall within the defined class to satisfy Rule 23(a)’s numerosity requirement.

See Roe v. Town of Highland, 909 F.2d 1097, 1100 n.4 (7th Cir. 1990) (citation omit-

ted). Plaintiffs cannot make either of these showings.3

1. Plaintiffs fall outside the class, which is fatal to their case. The only Plain-

tiffs who do not have a photo ID—Leroy Switlick, James Green, Melvin Robertson,

and Ruthelle Frank—could obtain one with reasonable effort. R.297:11–12.4 The

undisputed record evidence establishes that Plaintiffs would receive a free photo ID

by gathering a couple of documents, going to a DMV location, filling out a form, and

posing for a photo. Id.5 Plaintiffs would then have a photo ID at every election go-

ing forward—either a temporary ID during the pendency of the IDPP investigation,

if needed, or a permanent ID after DMV concluded that the applicant’s name, date

of birth and U.S. citizenship are, “more likely than not,” correct. Wis. EmR1618,

3 Given page limitations applicable to this stay motion, the State will not attempt to

comprehensively cover all of the legal defects with Plaintiffs’ class-based claim in this filing. 4 The remaining Plaintiffs already have a photo ID, so they are clearly not part of

the class. See R.181 (Trial Tr. vol. 3, 695–96, Nov. 6, 2013); R.294:5. 5 Or, if they are incapacitated such that they are unable to go to DMV, they can vote

without a photo ID under Wis. Stat. § 6.86(2)(a), as Frank did earlier this year. R.294:5–6.


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§ 8. Plaintiffs could only ever lose their free photo ID due to fraud, ineligibility, ex-

treme non-cooperation, or voluntary withdrawal from the IDPP. R.287:9–10.

The district court claimed that some of these Plaintiffs had sought photo IDs

from the DMV under prior law, and should not have to do so now. R.294:6, 30–31.

But the question is whether Plaintiffs are part of the class “at the time the class ac-

tion is certified,” Sosna, 419 U.S. at 403, meaning that the only relevant issue is

whether, under current law, Plaintiffs would obtain a photo ID by expending rea-

sonable efforts now. The undisputed record evidence shows that they would.

R.287:11–12. For Switlick, in particular, Plaintiffs’ counsel instructed DMV to no

longer work with him, presumably understanding that reasonable efforts would

lead his client to get a free photo ID. R.285:13. And for Frank—who was able to vote

in a recent election because she qualified for the disability exception, R.286:9—the

district court found that she still suffered an injury because she cannot vote in per-

son if she wishes to. R.294:6. But, of course, if Frank became well enough to vote in

person, she could then also go to a DMV location, bring a couple of documents that

she already has, fill out a form, and get her free photo ID. R.287:11.

Plaintiffs argued below that Green and Switlick fall within the class because

they “lack acceptable proof of identity” necessary for the IDPP, R.279:26, but the

district court properly did not rely upon this unsupported claim. Switlick and Green

assert only that they have no social security card, R.280-7, or identification with a

photograph, R.280-6:1, not that they lack the many other acceptable proofs of iden-

tity, including any “supporting document identifying the person by name and bear-


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ing the person’s signature, a reproduction of the person’s signature, or a photograph

of the person.” Wis. Admin. Code §§ Trans 102.15(4), (5)(a). And, of course, there is

no support in the record for Plaintiffs’ premise: that obtaining one of the many ac-

ceptable proofs of identity requires more than “reasonable effort” from anyone, in-

cluding Switlick and Green.

2. Plaintiffs’ class-based claim also fails because Plaintiffs will be unable to

“demonstrat[e],” beyond “mere speculation,” that a sufficient number of eligible vot-

ers cannot obtain photo ID with reasonable efforts to satisfy Rule 23(a)’s numerosity

requirement. See Roe, 909 F.2d at 1100 n.4 (citation omitted).

a. Most of the district court’s support for its conclusion that the class was suf-

ficiently numerous was based upon dated anecdotes. The district court recited diffi-

culties that a few applicants had under the pre-2016 IDPP, as compared to 1,132

pre-2016 IDPP grants (not to mention the 420,000 free IDs for voters who did not

even need to invoke the IDPP). R.287:3, 7. The State already addressed the poten-

tial issues that these examples highlight under its current law.

For example, the district court recited some instances of applicants who

lacked birth certificates and had their applications ultimately denied, R.294:23–24,

or were required to stay in touch with DMV multiple times in a short period of time,

R.294:27. Under current law, however, someone lacking a birth certificate will re-

ceive a free photo ID within six days, and can only ever be denied renewal upon a

finding of fraud, ineligibility, failure to respond for 180 days, or request to with-

draw. R.287:9–10. Current law thus comprehensively addresses the situation of “el-


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igible voters who need a document that no longer exists (such as a birth certificate

issued by an agency whose records have been lost in a fire),” and ensures that such

voters will have ID with reasonable efforts. Frank II, 819 F.3d at 386.

The district court also noted that two voters ran into trouble trying to ad-

dress name mismatches. R.294:24–25. Under current law, however, someone with a

name mismatch can fill out a simple form at the start of the IDPP. Wis. EmR1618,

§§ 1–3; R.287:8–9. In any event, a name mismatch is not one of the permissible ba-

ses for denying a free photo ID. R.287:9–10. Accordingly, current law fully address-

es the situation of “name mismatches or other errors in birth certificates or other

necessary documents.” Frank II, 819 F.3d at 386.

The district court also cited two examples of DMV personnel not informing

applicants about the IDPP or common law name-change processes in 2015.

R.294:26.6 While DMV works hard to eliminate all mistakes by its personnel, a

couple of inadvertent errors can occur under any system, including the district

court’s mandatory affidavit procedure. The mere possibility of human error falls far

short of establishing that Plaintiffs are likely to satisfy the numerosity requirement.

b. When the district court moved beyond inapposite anecdotes, it turned to

“mere speculation,” Roe, 909 F.2d at 1100 n.4, unsupported by record evidence.

First, the district court asserted that “because there are likely thousands of

eligible voters in Wisconsin who lack qualifying ID . . . it is virtually self-evident”

6 The photo ID application itself specifically notes the availability of the IDPP for

various reasons including “name change.” See generally DMV, Wisconsin ID Card Applica-

tion, http://wisconsindot.gov/Documents/formdocs/mv3004.pdf.


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that many people will have problems under current law. R.294:22. This is baseless

speculation and, regardless, is false in light of current law’s comprehensive nature.

Second, the district court observed that current law does not relieve “an ap-

plicant from having to produce a document that proves his or her identity.”

R.294:27–28. But Plaintiffs failed to identify a single individual who lacks any proof

of identity—such as a marriage certificate, paystub with a social security number,

or any “supporting document identifying the person by name and bearing the per-

son’s signature, or a reproduction of the person’s signature,” Wis. Admin. Code

§ Trans 102.15(4) (emphasis added)—and could not easily obtain one “on request.”

Frank II, 819 F.3d at 386. There are thus no “eligible voters who need a credential

from some other agency (such as the Social Security Administration) that will not

issue the credential unless Wisconsin’s Department of Motor Vehicles first issues a

photo ID, which the DMV won’t do until the other credential has been obtained,” id.,

including because a social security card is not required.

Third, the district court claimed that current law creates problems for those

“who because of health reasons cannot travel easily, those without reasonable ac-

cess to transportation to the DMV, and those who cannot afford to miss work for the

time required to make a trip to the DMV.” R.294:29. Those with health problems

that prevent them from traveling to the DMV without unreasonable efforts are al-

ready exempt. Wis. Stat. §§ 6.86(2)(a); 6.87(4)(b)2. As for the district court’s remain-

ing concerns—work and family responsibilities, etc.—“making a trip to the [D]MV,

gathering the required documents, and posing for a photograph” is a reasonable ef-


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fort for the State to ask its able-bodied citizens to make. Crawford, 553 U.S. at 198

(opinion of Stevens, J.). The district court’s reliance on these concerns is simply an

attempt to invoke the same burdens it noted in its original decision in this case,

which this Court found legally erroneous. See Frank I, 768 F.3d at 748.

Fourth, the district court showed concern about those “without qualifying ID

on election day [who] might be unable to obtain ID in time to have their ballots

counted without going to unreasonable lengths.” R.294:29–30. The record shows

that DMV will issue same-day, free photo IDs during election week, R.287:10, mak-

ing it easy for voters who did not obtain a valid photo ID in the months leading up

to the election to cast provisional ballots on election day and then present photo IDs

by 4 p.m. on that Friday. Wis. Stat. §§ 6.79(3)(b), 6.97(3)(b).

Finally, the district court claimed that current law is not adequate because

applicants “will eventually be denied an ID card because the DMV will be unable to

verify their qualifications.” R.294:31–32. That is entirely unsupported. Under cur-

rent law, voters will stop receiving free photo IDs only because of fraud, ineligibil-

ity, extreme non-cooperation, or voluntary withdrawal. See supra p. 5.

B. Plaintiffs Cannot Establish Irreparable Harm

Plaintiffs must show that, absent preliminary relief, they will suffer irrepa-

rable harm. See East St. Louis Laborers’ Local 100 v. Bellon Wrecking & Salvage

Co., 414 F.3d 700, 708 (7th Cir. 2005). Here, the district court found that, without

relief, some Plaintiffs would be “unable to vote.” R.294:13. That is simply wrong.

Plaintiffs could obtain a photo ID by gathering up a couple of documents, going to a


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DMV location, and filling out a form. See supra pp. 4–5. This would automatically

lead to every Plaintiff having a photo ID for the November 2016 election. Wis.

EmR1618, §10. And even accepting the district court’s premise that it likely could

not resolve the Frank II remand before Wisconsin’s following election on February

21, 2017, R.294:14, every Plaintiff that undertook reasonable efforts would have a

free photo ID then as well. The only situation under which any IDPP petitioner

would not have a photo ID at any election would be if the petitioner engaged in

fraud, was ineligible to vote, did not respond to inquiries from DMV for 180 days, or

voluntarily withdrew from the IDPP. See supra p. 5.

C. The Preliminary Injunction Harms The State And The Public

A photo ID law serves the public interests of “the prevention of voter imper-

sonation on election day and the preservation of public confidence in the integrity of

elections.” Frank I, 768 F.3d at 745. The preliminary injunction here severely un-

dermines these interests and harms the State and its citizens by encouraging viola-

tions of the law and forcing the State to waste public resources.

First, the injunction encourages citizens to violate the photo ID law. Under

Wisconsin law, citizens must show a photo ID in order to vote at the polls. Wis. Stat.

§§ 6.79(2)(a), and 6.87(1). Under the district court’s affidavit, the voter must first

“declare under penalty of perjury that [they are] the individual identified below, and

that [they] have been unable to obtain acceptable photo identification with reasona-

ble effort.” R.294:43. If the affidavit stopped there, it would carve out an exception

to the photo ID law no broader than the one that the Fourteenth Amendment would


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mandate. Frank II, 819 F.3d at 386–87. But, of course, such an affidavit could not

lawfully be used by anyone, because all eligible Wisconsin voters can obtain photo

ID with reasonable efforts, see supra pp. 12–13.

The rest of the affidavit encourages breaches of the law by those who can get

free photo ID with reasonable efforts, in violation of this Court’s holding that relief

should not impact those who “readily can get qualifying photo ID.” Frank II, 819

F.3d at 386–87. The affidavit provides: “[t]his is due to the following reason(s): __

Lack of transportation __ Lack of birth certificate or other documents needed to ob-

tain photo ID __ Work schedule __ Disability or illness __ Family responsibilities __

Other (please identify).” R.294:43. No matter what the voter selects—and no matter

how legally deficient the “reason” is—“no person may challenge the sufficiency of

the reason.” R.294:43. But the “[l]ack of birth certificate” is an invalid reason for

claiming inability to obtain a photo ID with reasonable efforts, given current law.

See supra pp. 12–13. And “work” responsibilities fall short of the reasonable efforts

standard. See supra p. 14. Worse still, the unaccountable “Other” option conveys a

clear message to voters who, objectively, can get a photo ID with reasonable efforts

and thus are not part of the class: if you feel that you should not have to seek a pho-

to ID, that’s enough. A system under which everyone may “disregard [a legal] re-

quirement[ ]” if he feels that “he has not been fairly dealt with,” invites every man

to “become a law unto himself.” Somlo v. C. A. B., 367 F.2d 791, 793 (7th Cir. 1966).

Comparing the district court’s affidavit process to the affidavit that the Indi-

ana Legislature enacted in Crawford is instructive. Cf. Frank II, 819 F.3d at 387.


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Indiana permitted voting without a photo ID by “appear[ing] before the circuit court

clerk or the county election board not later than noon ten (10) days following the

election,” and, as relevant here, declaring that the voter is “indigent and unable to

obtain a proof of identification without the payment of a fee.” Ind. Code Ann. § 3-

11.7-5-2.5. Under Wisconsin law, every eligible voter is already entitled to a free ID

and can obtain that ID by making a trip to any DMV at any time. This actually re-

quires less effort than Indiana’s affidavit option, given that in Indiana, the voter has

10 days to travel to the circuit court clerk or the county election board. Frank I, 768

F.3d at 746. Wisconsin law thus already provides greater accommodation than does

Indiana’s, rendering any affidavit unnecessary.

Second, the injunction harms the State and the public by wasting public re-

sources and causing voter confusion. The district court ordered the Wisconsin Elec-

tions Commission to “revise [its] publicity materials” and “train election officials” to

use the affidavit. R.294:38. This will be costly and time-consuming. The Elections

Commission has already developed publicity material under current Wisconsin law,

which would need to be redone, and training election officials around the State nec-

essarily costs time and money. R.286:7–8. Indeed, the district court explained that

this aspect of its order will “require the election-administration defendants to exer-

cise significant effort.” R.294:38. Since, as explained above, Plaintiffs are extremely

unlikely to prevail on the merits, all of this effort will be wasted. Even worse, be-

cause Wisconsin’s current law is likely to survive review by the time of final judg-


- 19 -

ment, advertising and employing the district court’s affidavit option for just one or

two elections will needlessly cause voter confusion.

II. A Stay Is Warranted Because The State And The Public Will Suffer

Irreparable Harm, Whereas Plaintiffs Will Suffer No Harm

The remaining stay factors cut strongly in the State’s favor, for many of the

same reasons that the district court improperly granted the preliminary injunction.

The State will suffer irreparable harm absent a stay. The State will be re-

quired to implement the affidavit procedure and suffer the concomitant advertising

and training expenses for the November 2016 election. Because these concededly

“significant effort[s],” R.294:38, can never be recovered through “money damages,”

this will subject the State to irreparable harm. Gateway Eastern Ry. Co. v. Terminal

R.R. Ass’n of St. Louis, 35 F.3d 1134, 1140 (7th Cir.1994). In addition, refusal to

stay will mean that for (at least) the November 2016 election, the will of the Wis-

consin people will be thwarted, as those without photo ID cast ballots based upon

any reason they subjectively deem sufficient. Such interference with a State’s abil-

ity to “effectuat[e]” its laws is “a form of irreparable injury.” Maryland v. King, 133

S. Ct. 1, 3 (2012) (Roberts, C.J., in chambers) (citation omitted).

The harm to the public from failure to stay will be significant. The affidavit

that the district court mandated encourages those without a photo ID to violate the

law, even when they plainly fall outside of the class. See supra pp. 6–9. A stay

would allow for the orderly resolution of this dispute, permitting the State to carry

out the policy of the legislature. See Ill. Bell Tel. Co. v. WorldCom Techs., Inc., 157

F.3d 500, 503 (7th Cir. 1998) (“[T]he court must consider that all judicial interfer-


- 20 -

ence with a public program has the cost of diminishing the scope of democratic gov-

ernance.”). And there will be no compensatory public benefit because Wisconsin law

already allows anyone who makes reasonable efforts to get a photo ID.

The potential for voter confusion absent a stay is a particularly compelling

reason for a stay. The Supreme Court has warned against court orders that “result

in voter confusion.” Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006). If Wisconsin in-

forms citizens that there will be an affidavit option, this may well cause substantial

confusion for future elections if the courts ultimately uphold Wisconsin’s law. After

all, Wisconsin voters today understand that they need a photo ID to vote at the

polls. If they are told this is no longer required, it will cause confusion when the af-

fidavit is properly taken off the table at final judgment.

Finally, as explained above, a stay would cause no harm to Plaintiffs because

every eligible voter in Wisconsin can obtain photo ID with reasonable efforts.

CONCLUSION

The preliminary injunction should be stayed.


- 21 -

Dated: August 1, 2016.

Respectfully Submitted,

BRAD D. SCHIMEL

Wisconsin Attorney General

s/ Misha Tseytlin

MISHA TSEYTLIN

Solicitor General

Counsel of Record

DANIEL P. LENNINGTON

Deputy Solicitor General


CERTIFICATE OF SERVICE

I hereby certify that on this 1st day of August, 2016, I filed the foregoing Mo-

tion with the Clerk of the Court using the CM/ECF System, which will send notice

of such filing to all registered CM/ECF users.

Dated: August 1, 2016

s/Misha Tseytlin

MISHA TSEYTLIN


1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

______________________________________________________________________

RUTHELLE FRANK, et al., on behalf of themselves and all others similarly situated, Plaintiffs, v. Case No. 11-C-1128 SCOTT WALKER, in his official capacity as Governor of the State of Wisconsin, et al., Defendants. ______________________________________________________________________

DECISION AND ORDER

Before me now is the defendants’ motion to stay, pending appeal, my order

granting the plaintiffs’ motion for a preliminary injunction. See Fed. R. Civ. P. 62(c);

Fed. R. App. P. 8(a)(1). The preliminary injunction requires Wisconsin’s governor and

its election-administration officials to implement a procedure in which voters are

excused from having to present photo ID if they execute an affidavit stating that they

have been unable to obtain an ID with reasonable effort.

The standard for granting a stay pending appeal mirrors that for granting a

preliminary injunction. In re A&F Enters., Inc. II, 742 F.3d 763, 766 (7th Cir. 2014). To

determine whether to grant a stay, I consider the moving party’s likelihood of success

on the merits, the irreparable harm that will result to each side if the stay is either

granted or denied in error, and whether the public interest favors one side or the other.

Id. As with a motion for a preliminary injunction, a “sliding scale” approach applies; the

greater the moving party’s likelihood of success on the merits, the less heavily the

balance of harms must weigh in its favor, and vice versa. Id.

Case 2:11-cv-01128-LA Filed 07/29/16 Page 1 of 7 Document 311


2

Because the legal standard for granting a stay pending appeal mirrors that for

granting a preliminary injunction, and because I have already determined that the

plaintiffs are entitled to a preliminary injunction, I conclude that the defendants are not

entitled to a stay pending appeal. I will largely rest on the reasoning set out in my

decision on the motion for a preliminary injunction. In this decision, I will address only

those arguments that the defendants make in support of their motion to stay that they

did not also make in opposition to the plaintiffs’ motion for a preliminary injunction.

First, the defendants argue that a few of the examples I relied on when finding

that some plaintiffs will be unable to obtain ID with reasonable effort arose under “old

law,” i.e., before the Department of Transportation adopted the emergency rules that

became effective on May 13, 2016. See Emergency Rule 1618. The defendants

contend that these examples might have turned out differently had the emergency rules

been in effect when the individuals in the examples applied for a free state ID card.

However, the emergency rules did not create a brand new procedure for issuing free

state ID cards. Rather, as the defendants represented in their original brief, the rules

merely “codifie[d] the best practices that have evolved through DMV’s experience.”

Defs. Br. at 3, ECF No. 285. Kristina Boardman, the Administrator of the DMV,

confirmed that the emergency rules merely codified the DMV’s existing practices and

added deadlines for processing an ID application. Boardman Decl. ¶ 39, ECF No. 287.

She stated that the “ID petition process,” which is codified in the emergency rules and

used to assist applicants who do not have documents that prove name, date of birth,

and citizenship, “was created in September of 2014.” Boardman Decl. ¶ 12; see also

¶ 21 (stating that Compliance, Audit, and Fraud Unit “became involved in the ID [petition

process] in September of 2014”). Further, the procedures relating to the DMV’s name-



3

change affidavit were already in place before they were codified in the emergency rule

on May 13, 2016. One DMV report reflects use of this procedure on October 9, 2015.

Decl. of Sean Young Ex. 42 at pp.4–5, ECF No. 280. Another report reflects use of this

procedure on December 10, 2015. Id. Ex. 41 at p.2. The only significant change made

by the emergency rules is the requirement that the DMV issue temporary ID card

receipts to those who apply for an ID and enter the ID petition process. The emergency

rules do not appear to have significantly altered the practices that the DMV has been

following since September 2014 for issuing permanent ID cards.

To illustrate this point, I address the three examples that the defendants describe

as outdated in their motion for a stay. First, the defendants point to a case report

reflecting that, in June 2015, the DMV denied an ID to a person after an investigator

with the DMV’s Compliance, Audit, and Fraud Unit (“CAFU”) failed to locate her birth

records. Young Decl. Ex. 59. The defendants note that this occurred before the

emergency rules went into effect in May 2016. However, it is clear that at the time of

this denial the DMV was already employing the procedures that would later be codified

in the emergency rules. Specifically, the ID applicant’s case was referred to a CAFU

investigator under the ID petition process, just as it would have been under the

emergency rules. The investigator then attempted to track down the applicant’s birth

records, just as he or she would have under the emergency rules, but was

unsuccessful. The applicant was unable to produce any other documentation that

would allow the DMV to verify her name, date of birth, and citizenship, and thus the

DMV denied her application for an ID. Nothing in the emergency rules would have

changed this outcome. Under those rules, an applicant must still produce, or a CAFU

investigator must be able to find, some documentation to verify the applicant’s name,



4

date of birth, and citizenship. See Emergency Rule 1618, § 8. In cases where this is

not possible, such as the case reflected in Exhibit 59, the applicant will not receive a

permanent ID, will not receive any further temporary ID card receipts, and will be

precluded from voting in any future elections. A safety net is needed to preserve the

voting rights of individuals who find themselves in this situation.

The other two examples that the defendants describe as outdated involved

applicants with name mismatches. In one case, I noted that the DMV had erred by

failing to inform an applicant, in December 2015, that the DMV could notarize his name-

change affidavit for free. Young Decl. Ex. 41. The defendants now contend that this

was not an error because at that time the DMV’s free notarization process had not been

established. See Defs.’ Mot. to Stay at 10, ECF No. 297. However, the defendants do

not cite evidence to support the proposition that the free notary service did not exist in

December 2015. See id. And clearly some procedures relating to the name-change

affidavit were in place at that time, as the DMV recorded in its report that it provided a

name-change affidavit to the applicant on December 10, 2015. See Young Decl. Ex. 41

at p.2. Boardman in her declaration does not suggest that the DMV’s free notary

service was adopted at a different time than when the general name-change affidavit

procedures were adopted. See Boardman Decl. ¶¶ 35–38. Thus, from the evidence

submitted at this point in the case, I find that free notary services were available at the

DMV in December 2015. I also note that the emergency rules do not say anything

about notary services, and thus those rules did not change any of the DMV’s practices

relating to such services.

The remaining example involves a case in which the DMV denied, in January

2016, an ID to an applicant after the applicant’s daughter tried for months to obtain an



5

ID for him and eventually gave up after the DMV rejected the name-change affidavit she

had completed on his behalf. Young Decl. Ex. 42. The defendants again note that this

occurred before the emergency rules went into effect. But they do not explain how the

result would have been different under the emergency rules. The applicant used the ID

petition process and the name-change affidavit process, both of which would later be

codified in the emergency rules, and still failed to obtain an ID. The defendants do not

identify any way in which the processing of this ID application would have been different

had it been filed after the effective date of the new rules.

I also note that the plaintiffs’ likelihood of success on the merits would be high

even if some of the specific examples I discussed in my opinion might be handled

differently today. Even under current law, an ID application will be denied unless the

DMV finds “secondary documentation or other corroborating information” establishing

that it is more likely than not that the person’s name, date of birth, and citizenship, as

stated on the person’s application for an ID, is correct. See Emergency Rule 1618, § 8.

Obviously there will be cases in which the DMV is unable to find sufficient

documentation or information on behalf of an applicant. Moreover, as I explained at

length in my original opinion, inevitably other obstacles will arise that prevent individuals

who exercise reasonable effort from obtaining ID. Again, some safety net must be

available to protect the voting rights of these individuals.

In their motion to stay, the defendants also contend that the safety net I created

has the effect of “abrogat[ing]” the elector-challenge procedures established by

Wisconsin law. They refer specifically to Wisconsin Statute § 6.92(1), which provides

that “each inspector shall challenge for cause any person offering to vote whom the

inspector knows or suspects is not a qualified elector or who does not adhere to any



6

voting requirement under this chapter,” and to Wisconsin Statute § 6.925, which

provides that “[a]ny elector may challenge for cause any person offering to vote whom

the elector knows or suspects is not a qualified elector.” However, the injunction does

not interfere with these challenge procedures insofar as the procedures allow inspectors

and electors to challenge a voter’s qualifications. That is, the injunction does not

prohibit anyone from challenging a voter on the ground that he or she is not a U.S.

citizen residing in Wisconsin who is age 18 or older, or on the ground that he or she is

disqualified from voting. See Wis. Stat. §§ 6.02, 6.03 (establishing qualifications for

electors and grounds for disqualification). The injunction thus does not interfere with

§ 6.925 at all, and it interferes with § 6.92(1) only to the extent that it prevents

inspectors from challenging a person who submits an affidavit in lieu of an ID on the

ground that he or she did not produce an ID. Moreover, nothing in my order prevents

an inspector or another elector from challenging a voter on the ground that the voter is

not the person he or she claims to be. Under the order, only the sufficiency of the

reason given by the voter for being unable to obtain ID is not subject to challenge.

Accordingly, the injunction interferes with Wisconsin’s challenge procedures only as

much as is necessary to provide the plaintiffs with effective relief.

Finally, I address the defendants’ argument under Purcell v. Gonzalez, 549 U.S.

1 (2006). That case is generally cited for the proposition that courts should be reluctant

to issue orders affecting a state’s election procedures when an election is imminent.

The rationale underlying this proposition is that orders issued very close to an election

may “result in voter confusion and consequent incentive to remain away from the polls.”

Id. at 4–5. However, the November election is more than three months away, and as I

explained in my opinion granting the injunction, it will not be difficult for the defendants



7

to implement the affidavit option in time for that election. Indeed, the defendants have

already begun to implement the affidavit option. See Wis. Elec. Comm’n Mem. re:

Photo ID Litigation (July 20, 2016), available at http://goo.gl/yJdEGp (viewed July 29,

2016). Thus, the risk of voter confusion is very low. That low risk does not outweigh

the risk of irreparable harm to the plaintiffs that would arise if the affidavit option were

not available for the November election, especially once the plaintiffs’ strong likelihood

of success on the merits is factored into the balance, as it must be. See In re A&F

Enters., Inc. II, 742 F.3d at 766.

For these reasons, IT IS ORDERED that the defendants’ motion for a stay

pending appeal is DENIED.

Dated at Milwaukee, Wisconsin, this 29th day of July, 2016.

s/ Lynn Adelman ______________________ LYNN ADELMAN District Judge



http://goo.gl/yJdEGp

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN


Plaintiffs,

v. Case No. 11-CV-1128 GOVERNOR SCOTT WALKER, ET AL.,

Defendants.

DECLARATION OF KRISTINA BOARDMAN

Kristina Boardman declares as follows under penalty of perjury, pursuant to

28 U.S.C. § 1746:

1. I make this declaration based on my personal knowledge review of the

regularly conducted business records of the Wisconsin Department of

Transportation (DOT), Division of Motor Vehicles (DMV).

2. I am the Administrator of the DMV. I have held this position since

February of 2016. From July of 2013 to February of 2016, I was the Deputy

Administrator of the DMV. I started at the DMV in 2005 and have also worked as

an Operations Chief for the Bureau of Field Services and as the Director of the

DMV Bureau of Field Services.

3. Under state law, DMV issues free Wisconsin Identification Cards

(state ID) to individuals for the purpose of voting. DMV has been issuing non-

drivers license ID cards since 1979. DMV started issuing free IDs on July 1, 2011.



- 2 -

Before that, the application was the same for a driver license and a state ID card.

But in July of 2011, a separate form for free state ID cards was created. A true and

accurate copy of the Wisconsin Identification Card (ID) Application (form MV3004)

is attached hereto at Exhibit 1013. This form is available in both English and

Spanish.

4. About 4.2 million people have a Wisconsin driver license. That is about

95% of people over 18 years old in the state.

5. To apply for state ID, you must visit a DMV customer service center,

complete a Wisconsin Identification Card (ID) Application (form MV3004), and

provide: (1) proof of name and date of birth (for example, a certified U.S. birth

certificate, valid passport or certificate of naturalization); (2) proof of identity

(usually a document with a signature or photo); (3) proof of Wisconsin residency; (4)

proof of U.S. citizenship, legal permanent resident status, legal conditional resident

status or legal temporary visitor status; and (4) your social security number.

6. DMV websites show all of these requirements for obtaining a state ID,

in both English and Spanish. The websites provide several examples of sufficient

documentation, as well as an easy-to-follow interactive ID card guide and checklist

for those looking for information on the ID card requirements. See,

http://wisconsindot.gov/Pages/dmv/license-drvs/how-to-apply/id-card.aspx

7. DMV has 92 customer service centers, which are also called field

offices. There are approximately 350-370 people staffing those locations. By

statutory requirement, each county must have at least 20 hours a week of field



- 3 -

service office hours for driver license and identification card issuance, but many

counties have more than that. For example, Milwaukee has six locations, most of

which are open from 8:30 a.m. to 4:45 p.m. Monday through Friday. Two Milwaukee

locations offer Saturday service from 8:30 a.m. to noon. Someone who wants a state

ID does not have to go to any particular DMV location.

8. DMV’s goal is to get people the state ID that they are entitled to.

9. If an individual presents at a DMV field office with the required

documentation, an ID is issued from the field office.

10. From July 2011 through April 2016, 420,061 free state IDs have been

issued. This includes 127,398 original IDs that have been issued to applicants since

July 2011. The difference between the 420,061 and the 127,398 are renewals and

duplicate state IDs. A true and accurate copy of a chart documenting the issuance of

state IDs from July 2011 through April 2016 is attached hereto as Exhibit 1014.

IDPP – UNAVAILABLE DOCUMENTATION

11. If an individual applying for an original state ID card for purposes of

voting does not have available documentation to prove U.S. citizenship, name and

date of birth, and/or legal name change, their application is not denied. Rather, they

may enter the ID Petition Process (IDPP).

12. The IDPP was created in September of 2014 to address applicants who

did not have this type of verifying documentation.

13. Individuals can enter the IDPP process at DMV customer service

centers by completing both the Wisconsin Identification Card (ID) Application (form



- 4 -

MV3004) and a DMV Administrator Petition—Unavailable Documentation (form

MV3012). They must also present documents to prove identity and Wisconsin

residency. A true and accurate copy of the MV3012 form is attached hereto at

Exhibit 1015.

14. The MV3012 form is available in English and Spanish.

15. Any documents the petitioner presents to the field office are scanned

and sent to the DMV Central Office in Madison. Supplemental documentation can

also be mailed, faxed, or emailed to the Central Office.

16. When a person enters the IDPP process, DOT staff makes very clear

that they are under no obligation to pay a fee for government verification of the

petitioner’s information.

17. The information provided on the petitioner’s MV3012 form is used to

communicate with state and federal partners to verify whether or not vital

records on file in Wisconsin and other states substantiate a petitioner’s

qualifications to obtain a free Wisconsin ID for purposes of voting. For example,

Wisconsin vital records are verified through the Wisconsin Department of Health

Services (DHS). DHS processes Wisconsin records very quickly. Records from

other states are verified through a database called EVVE, or by looking through

records if the other state does not participate in EVVE, or if the birth records for

the requested year are not available in EVVE.



- 5 -

18. This initial verification is conducted at the DMV Central Office in

Madison. Once verification is received, an ID card will be processed and mailed

to the applicant’s address.

19. If DMV cannot verify the information within five (5) working days, it

will issue an identification card receipt, which is valid for the purposes of voting.

DMV can issue an identification card receipt prior to five (5) working days if

required immediately for purposes of voting.

20. Even if DHS cannot confirm that a petitioner’s personal identifying

information matches the birth record (“no match”), the state ID application is not

denied. At that point, the application and petition are forwarded to DMV’s

Compliance, Audit, and Fraud Unit (CAFU) to be researched.

21. CAFU became involved in the IDPP process in September of 2014.

22. CAFU procedures for processing petitions through the IDPP are

established in an internal document titled Processing ID Petition Process

Applications. These procedures were developed over the course of the past two

years. The document is continually updated as new information is made available to

best assist applicants to obtain an ID. A true and accurate copy of these procedures

is attached hereto at Exhibit 1016.

23. IDPP petitions are assigned to CAFU investigators. For these

investigators, the primary goal is to issue state IDs to whoever is eligible. CAFU

investigators are able to leverage investigatory skills developed in the other aspects



- 6 -

of CAFU’s work to determine whether the information provided matches with a

birth record or some other secondary information.

24. CAFU investigators engage in numerous and varied efforts in helping

petitioners obtain IDs. These include poring over ancient documents and forms,

searching various databases, examining whatever personal documents petitioners

might provide, and following up with the petitioners on each possible lead.

25. CAFU investigators are not restricted in the information they can

consider. They often talk to family members, hospitals, school districts, and will

take whatever lead they can find in hopes that DMV can resolve the process and

move forward with issuing an ID. If another jurisdiction is slow to respond to

CAFU, its investigators can use these other methods to issue an ID.

26. If CAFU can get additional information to facilitate a birth record

request, the application is re-submitted to DHS for verification.

27. If information for a DHS match cannot be found, CAFU uses the

extraordinary proof process. This process utilizes early documentation such as a

baptismal certificate, hospital birth certificate, census record, early school record,

family bible, and/or doctor’s record of post-natal care to confirm a petitioner’s name,

date of birth, and place of birth information.

28. DMV has funding to obtain documents for petitioners that are required

from non-governmental entities and/or other state entities.

29. The Director of the Bureau of Field Service, Jim Miller, is the final

decision-maker for IDPP petitions that reach CAFU. Mr. Miller utilizes the



- 7 -

applicable administrative code provisions as the basis for approving or disapproving

a CAFU recommendation.

30. As part of the extraordinary proof process, Mr. Miller can look to

documents beyond those specifically enumerated documents. He is authorized under

the administrative code to consider all additional information provided by the

applicant.

31. DMV can utilize the IDPP and CAFU to work with homeless people to

obtain a free state ID. Documents and correspondence can be mailed to a place such

as a shelter, food pantry, or social services agency, where a homeless individual can

get mail.

32. From September 15, 2014, through May 12, 2016, there were 1,389

IDPP petitions. Of those, 1,132 of the petitioners got a free state ID through the

IDPP. The majority of these issuances—all but 230—were issued from a DHS

verification match. A true and accurate copy of DMV’s Monthly ID Petition Record

Process Report for this time period is attached hereto as Exhibit 1017.

33. One IDPP petition investigated by CAFU was made by a person who

turned out not to be U.S. citizen. Without the verification process, this individual

would have likely gotten an ID and been able to vote.

34. Errors in the IDPP are tracked in a semi-annual error report entitled

“BFS IDPP Data by Month” (see Declaration of Sean J. Young, Ex. 47; Dkt. No. 280-

47). Much of what the report addresses is completely internal and relates to office

efficiency. Of all the error types included in the error report, most are resolved in an



- 8 -

hour or less, with the vast majority of the remainder being resolved within the next

business day. The only way that one of these errors would result in the non-

issuance of an ID is if it involved field staff not scanning or copying a necessary

document from the customer, and the customer did not follow-up by forwarding the

necessary information.

NAME ERRORS

35. DMV field office staff is trained on how to process applications where

there is a discrepancy in the name on a birth record or other verifying

documentation compared to the name the applicant uses.

36. Applicants with a single letter discrepancy in a first, middle, or last

name spelling (examples such as Glenn—Glen or Shaun—Shawn) are still issued a

state ID card by field office staff and need not enter the IDPP process. Individuals

presenting with this type of name spelling discrepancy are handled at the field

office, and the applications never reach the IDPP or CAFU. A true and accurate

copy of the field office guidelines for name discrepancies is attached hereto as

Exhibit 1018.

37. If an individual has a different name, or a name that is significantly

different from his birth records, he can utilize an Affidavit of Common Law Name

Change. This form does not require an applicant to change the name he is now

known as. Rather, it provides evidence of a legal name that is different than that

reflected on a birth record or other source document. A true and accurate copy of the

Affidavit of Common Law Name Change is attached hereto as Exhibit 1019.



- 9 -

38. The Affidavit of Common Law Name Change form does contain a

notary block. However, because some notaries require a fee, DMV also provides the

option for the affidavit to be witnessed by a DMV employee free of charge.

EMERGENCY RULE / ID RECEIPTS

39. On May 10, 2016, an emergency rule governing the IDPP process was

approved. The emergency rule codifies the best practices, timelines, standards and

common sense steps that have been developed since implementation of the IDPP

process. In addition, the emergency rule includes provisions that result in a more

specific process and deadlines to verify an applicant’s name, date of birth, and U.S.

citizenship (see Declaration of Sean J. Young, Ex. 23, 24; Dkt. Nos. 280-23, 280-24).

40. Under the emergency rule, Wis. Admin. Code § Trans 102.15 was

amended to allow for the issuance of a temporary ID card receipt, usable for voting

purposes, while an application is being processed through the IDPP. Thus, under

the new rules, anyone who goes to a Wisconsin DMV office and applies for a free

voter ID will be mailed either an ID card or get a photo ID receipt that is valid for

voting within six days. A true and accurate copy of an example photo ID receipt is

attached hereto as Exhibit 1020.

41. For those receiving an ID receipt, DMV will re-issue 60-day receipts

without the applicant needing to apply for a renewal. An applicant will

automatically receive two (2) 60-day renewals, providing an applicant with a photo

ID receipt for a minimum of 180 days. A person will continue getting renewal ID

receipts as long as DMV has information to work with, and as long as the petitioner



- 10 -

cooperates in the process. Renewed receipts will stop being issued only in the event

of fraud, when a person is found to be ineligible for a product, when an applicant

does not respond to multiple DMV inquiries with information that can advance the

investigation for a period of 180 days, or when a customer requests that DMV

cancel the process.

42. Photo ID receipts are issued within six days because DMV has found

that 60% of petitioners received their ID card within five days or less, and the

receipt timing was designed to give time for that majority to get their card before a

receipt is issued.

43. Since the emergency rule has gone into effect, DMV has issued 166

photo ID receipts. Unless found to be fraudulent or unqualified, these individuals

will either have an ID card or an automatic renewal ID receipt for both the August

2016 and November 2016 elections.

44. During an election week, DMV will issue a photo ID receipt by mail on

the day that a person makes an application. This is to provide applicants who were

not prepared with a compliant voter ID before going to the polls an opportunity to

cast a provisional ballot and still return with an ID receipt in time for the

provisional ballot to be counted.

45. Petitioners, as well as CAFU, can use the photo ID receipts to request

birth records and source documents from other jurisdictions that require a photo ID

with an application.



- 11 -

PLAINTIFFS AND DECLARANTS

46. Seven Plaintiffs have been issued a state ID by DMV that is currently

unexpired and can be used for purposes of voting: Justin Luft, Barbara Oden,

Pamela Dukes, Anthony Judd, Anna Shea, Shirley Brown, and Frank Ybarra.

47. Four Plaintiffs have been issued a Wisconsin driver’s license by DMV

that is currently unexpired and can be used for purposes of voting: Anthony Sharp,

Sarah Lahti, Edward Hogan, and Nancy Lea Wilde.

48. While Plaintiffs Ruthelle Frank, Dartric Davis, Sandra Jashinski, Max

Kligman, Steve Kvasnicka, Eddie Lee Holloway, Jr., Mariannis Ginorio, and

Dewayne Smith do not appear to have a current Wisconsin driver’s license or state

ID, none of these individuals have filed a petition through the IDPP process. If they

were to visit a DMV service center and fill out a Wisconsin Identification Card (ID)

Application (form MV3004) and, if necessary, a DMV Administrator Petition—

Unavailable Documentation (form MV3012), they would be issued either an ID card

or ID receipt within 6 days that could be used to vote.

49. Cinderria Harwell, who is identified in the Plaintiff’s preliminary

injunction materials, was issued a state ID by DMV on February 23, 2016.

50. Kari Venteris, who is identified in the Plaintiff’s preliminary

injunction materials, was issued a Wisconsin driver’s license by DMV on April 7,

2016.

51. Because there are multiple records in the DMV databank for

individuals named Melvin Robertson, James Green, Gilbert Ramos, and Miguel



- 12 -

Angel Vega, I am unable to confirm whether or not they have a current state ID

card and/or Wisconsin driver’s license without additional information. However,

even assuming they do not, none of these individuals has filed a petition through

the IDPP process. If they were to visit a DMV service center and fill out a Wisconsin

Identification Card (ID) Application (form MV3004) and, if necessary, a DMV

Administrator Petition—Unavailable Documentation (form MV3012), they would be

issued either an ID card or ID receipt within 6 days that could be used to vote.

52. None of the following individuals identified in the Plaintiff’s

preliminary injunction materials appear to have a current Wisconsin driver’s

license or state ID: Leroy Switlick, Christine Krucki, Rachel Fon, Shawnteasha

Kirkwood-Coleman, Alexandra Kirschner, Bernice Kvidera, Myesiha Moore.

However, none of these individuals has filed a petition through the IDPP process. If

they were to visit a DMV service center and fill out a Wisconsin Identification Card

(ID) Application (form MV3004) and, if necessary, a DMV Administrator Petition—

Unavailable Documentation (form MV3012), they would be issued either an ID card

or ID receipt within 6 days that could be used to vote.

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed on June, 16, 2016. /s/Kristina Boardman KRISTINA BOARDMAN



1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

______________________________________________________________________

RUTHELLE FRANK, et al., on behalf of themselves and all others similarly situated, Plaintiffs, v. Case No. 11-C-1128 SCOTT WALKER, in his official capacity as Governor of the State of Wisconsin, et al., Defendants. ______________________________________________________________________

DECISION AND ORDER

The plaintiffs, a number of individuals who are eligible to vote in Wisconsin, filed

this suit in 2011, alleging that Wisconsin’s law requiring them to present photo

identification at the polls, 2011 Wis. Act 23 (“Act 23"), violates the Constitution and

Section 2 of the Voting Rights Act. Following a trial on the claims alleged in this and a

companion case, I concluded that Act 23 placed an undue burden on the plaintiffs’

voting rights and therefore violated the Fourteenth Amendment. I also concluded that

Act 23 violated Section 2 of the Voting Rights Act. Having found these violations, I

entered an injunction prohibiting the defendants from enforcing the photo ID

requirement. Frank v. Walker, 17 F. Supp. 3d 837 (E.D. Wis. 2014). The defendants

appealed, and the Seventh Circuit reversed. Frank v. Walker, 768 F.3d 744 (7th Cir.

2014) (“Frank I”).

On remand, the plaintiffs sought relief in connection with certain claims that I did

not resolve in my first decision. I issued a decision denying relief on those claims on

October 19, 2015. The plaintiffs appealed, challenging two aspects of my decision.

First, the plaintiffs challenged my conclusion that Frank I precluded me from considering



2

the plaintiffs’ claim for relief on behalf of persons who cannot obtain Act 23-qualifying ID

with reasonable effort. Second, the plaintiffs challenged my conclusion that Act 23’s

exclusion of veterans’ ID cards from the list of IDs that may be used for voting did not

violate the Equal Protection Clause.

While the plaintiffs’ appeal was pending, Wisconsin amended Act 23 to require

election officials to accept veterans’ IDs. See 2015 Wis. Act 261, § 2. Because the

parties agreed that this rendered the plaintiffs’ claim regarding the refusal to accept

such IDs moot, the Seventh Circuit vacated my decision on that claim and remanded

with instructions to dismiss it as moot. See Frank v. Walker, 819 F.3d 384, 385 (7th Cir.

2016) (“Frank II”). In accordance with that instruction, I will in this order dismiss that

claim as moot.

As to the plaintiffs’ other argument, the Seventh Circuit held that its decision in

the first appeal did not preclude me from considering the plaintiffs’ claim for relief on

behalf of those who cannot obtain ID with reasonable effort. It therefore vacated my

dismissal of that claim and remanded the case for further proceedings. Id. at 385–88.

Now that the case has been remanded a second time, the plaintiffs have filed a

motion to supplement their complaint, see Fed. R. Civ. P. 15(d), a motion to certify a

class, see Fed. R. Civ. P. 23, and a motion for a preliminary injunction, see Fed. R. Civ.

P. 65(a). The motion for a preliminary injunction seeks an order requiring the

defendants to offer voters who do not possess an ID and who cannot obtain one with

reasonable effort the option of receiving a ballot by executing an affidavit to that effect.1

1 Throughout this opinion, I refer to the relief the plaintiffs seek as an “affidavit” option. However, in legal jargon, “affidavit” usually refers to a statement that is sworn before an officer, such as a notary. The affidavit that the plaintiffs request will not be notarized or sworn, and thus it might be more accurate to refer to the affidavit as a “declaration,”



3

The plaintiffs also seek an order requiring the defendants to publicize this affidavit

option by sending individualized notice to all registered voters who, according to DMV

records, might not possess qualifying ID.

I will grant the plaintiffs’ motion for a preliminary injunction and will order the

defendants to implement an affidavit option in time for the general election on

November 8, 2016. As explained in more detail below, although most voters in

Wisconsin either possess qualifying ID or can easily obtain one, a safety net is needed

for those voters who cannot obtain qualifying ID with reasonable effort. The plaintiffs’

proposed affidavit option is a sensible approach that will both prevent the

disenfranchisement of some voters during the pendency of this litigation and preserve

Wisconsin’s interests in protecting the integrity of its elections. I will also grant the

plaintiffs’ motion to file a supplemental complaint and their motion for class certification.

However, I will not require the defendants to mail individualized notice of the affidavit

option to certain voters.

I.

I begin with the plaintiffs’ motion to file a supplemental complaint. The sole

purpose of this pleading is to add three named plaintiffs and potential class

representatives to the case: Melvin Robertson, Leroy Switlick, and James Green. The

proposed supplemental complaint alleges that these individuals do not possess Act 23-

qualifying ID, that they face significant barriers to obtaining ID, and that the requirement

to present ID at the polls prevented them from voting in Wisconsin elections during

2016. See Decl. of Sean J. Young Ex. 1, ECF No. 280-1.

which is a statement made under penalty of perjury that is not notarized or sworn to. However, because the parties use the term “affidavit,” I will as well.



4

The defendants contend that I should not allow these individuals to be added as

plaintiffs because their claims will be addressed as part of a separate lawsuit that is

pending in the Western District of Wisconsin, One Wisconsin Institute, Inc., et al. v.

Judge Gerald C. Nichol, et al., W.D. Wis. Case No. 15-C-0324. The defendants

contend that adding the new plaintiffs to this case would be duplicative and inefficient.

However, Robertson, Switlick and Green are not parties to the One Wisconsin case. It

is true that they may benefit from any relief granted in One Wisconsin, but that is also

true of the individuals who are already named as plaintiffs in this case. If I were to deny

Robertson, Switlick and Green leave to join this case, they would still have a right to file

their own, separate suit, and thus not allowing them to become parties in this case

would only increase the risk of duplicative litigation. It is better to have their claims and

the claims of the existing plaintiffs, all of which are virtually identical, litigated as part of

a single action. For that reason, I will grant the plaintiffs’ motion to file a supplemental

complaint.

II.

I next address the defendants’ argument that no plaintiff has standing to seek an

affidavit option on behalf of persons who lack ID and cannot obtain ID with reasonable

effort. To have standing, a plaintiff must show that he has suffered an injury in fact that

is fairly traceable to the defendants’ conduct and that is likely to be redressed by a

favorable judicial decision. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–

61 (1992).

The plaintiffs have put forth the following individuals as plaintiffs with standing to

pursue an affidavit option: Ruthelle Frank, Shirley Brown, DeWayne Smith, Melvin

Robertson, Leroy Switlick, and James Green. Pls.’ Br. at 24, ECF No. 279. So long as



5

one of these individuals has standing, the claim may proceed rather than be dismissed

for lack of standing. See Crawford v. Marion County Election Bd., 553 U.S. 181, 189

n.7 (2008).

The defendants point out that two of these plaintiffs, Brown and Smith, have

obtained ID, and contend that therefore their claims are moot. A claim becomes moot

only when it is impossible for a court to grant any effectual relief whatever to the

prevailing party. Knox v. Serv. Employees Int’l Union, Local 1000, __ U.S. __, 132

S. Ct. 2277, 2287 (2012). Here, because Brown and Smith have obtained ID, they

would not benefit from the relief that the plaintiffs currently seek, i.e., an order requiring

the defendants to allow those who lack ID to obtain a ballot by signing an affidavit

stating that they have been unable to obtain ID with reasonable effort. Thus, such an

order would not be effectual relief for them. However, these plaintiffs still have a

sufficient stake in this case to remain plaintiffs. That is because the plaintiffs intend to

argue on appeal that Frank I was wrongly decided and that Act 23 should be enjoined in

its entirety. See Pls.’ Br. at 6 n.4, ECF No. 279. As I noted in my original decision,

those who possess IDs have standing to seek an injunction that prevents them from

having to show their IDs at the polls to receive a ballot. Frank, 17 F. Supp. 3d at 866.

But, for purposes of this order, I will assume that Brown and Smith do not have standing

to seek an affidavit option and examine whether any of the other plaintiffs do.

The defendants contend that the claim of Ruthelle Frank, who does not possess

an ID, is moot because she was able to vote by absentee mail in this year’s elections

without having to show ID under Act 23’s “indefinitely confined” exception. That

exception provides that a person “who is indefinitely confined because of age, physical

illness or infirmity or is disabled for an indefinite period may by signing a statement to



6

that effect” vote by absentee ballot without presenting ID. Wis. Stat. §§ 6.86(2)(a),

6.87(4)(b)2. However, Frank prefers to vote in person and has voted absentee only

because she lacks ID and therefore cannot vote in person. See Frank Dep. at 12–13,

ECF No. 280-4. Thus, Frank continues to suffer an injury in fact, i.e., the inability to

vote in person, that is caused by the photo-ID requirement, and that would be redressed

by the creation of an affidavit option. She therefore continues to have standing to seek

the requested injunctive relief.

The remaining plaintiffs, Robertson, Switlick and Green, also have standing to

seek an order creating an affidavit option. These plaintiffs do not currently possess IDs,

have been unable to vote in recent elections, and allege that they cannot with

reasonable effort obtain IDs. The defendants contend that these plaintiffs do not have

standing because they have not shown that they tried to obtain IDs under the Wisconsin

DMV’s most recent procedures. However, while the plaintiffs’ failure to apply for IDs

under the current procedures may be relevant to the merits of their claims, it does not

deprive them of standing to seek an affidavit option, which if granted would prevent

them from having to apply for IDs at all. Moreover, Leroy Switlick did attempt to obtain

an ID as recently as April 2016 but was unsuccessful. Decl. of Leroy Switlick ¶¶ 8–10,

ECF No. 280-6. This would have been after the DMV instituted most of its new

procedures but before a recent emergency rule (discussed below) went into effect in

May 2016. Having to reapply for an ID every time the DMV changes its procedures

would itself require more than reasonable effort, and thus Switlick undoubtedly has

standing to seek an affidavit remedy. This reasoning also applies to Melvin Robertson,

who attempted to obtain an ID before 2014. Decl. of Melvin Robertson ¶ 7, ECF No.



7

280-5. Accordingly, I conclude that Robertson, Switlick and Green have standing to

seek an order creating an affidavit option.

III.

Next, I address the plaintiffs’ motion for class certification. The plaintiffs propose

to certify a class defined as eligible Wisconsin voters without acceptable forms of

identification for voting and who have one or more of the following barriers to obtaining

ID: (1) name mismatches or other errors in a document needed to obtain ID; (2) a need

to obtain an underlying document from an agency other than the DMV in order to obtain

ID; and/or (3) one or more underlying documents necessary to obtain ID cannot be

found. See Pls. Prop. Order at 1–2, ECF No. 278-1. However, the affidavit remedy the

plaintiffs seek on behalf of this class would apply to a broader class of persons, namely,

to all those who face a “reasonable impediment” to obtaining acceptable ID. The order

they seek would direct the defendants to:

Create an affidavit in simple language that would allow voters without acceptable identification for voting to cast a regular ballot at the polling place or an absentee ballot, by affirming that they face a “reasonable impediment” to obtaining acceptable identification. The form should have boxes that a voter may check for “lack of transportation,” “disability or illness,” “lack of birth certificate,” “work schedule,” “family responsibilities,” and “other reasonable impediment.”

See id. at 2. To bring the class definition in line with the proposed remedy, I will define

the proposed class as all those eligible to vote in Wisconsin who cannot with reasonable

effort obtain a qualifying photo ID. Most of the members of this class will also fit into

one of the plaintiffs’ three categories, since individuals in those categories are the ones

most likely to encounter reasonable impediments. See Frank II, 819 F.3d at 386

(describing the members of the plaintiffs’ three categories as those who cannot “obtain

a qualifying photo ID with reasonable effort”).



8

Having defined the proposed class, I turn to whether it may be certified under

Federal Rule of Civil Procedure 23. A district court may certify a class of plaintiffs if the

proposed class satisfies all four requirements of Rule 23(a)—numerosity, commonality,

typicality, and adequacy of representation—and any one of the conditions of Rule 23(b).

Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). For the reasons

explained below, I conclude that these elements are satisfied.

A.

I first address the four Rule 23(a) requirements.

Numerosity. Under Rule 23(a)(1), a class may be certified only if “the class is so

numerous that joinder of all members is impracticable.” I find that the proposed class

satisfies this requirement. Although it is true that the vast majority of Wisconsin voters

already possess qualifying ID, and although it may be true that many voters who do not

already possess qualifying ID can obtain one with ease, there can be no doubt that

some voters in Wisconsin still face high hurdels to obtaining ID. As explained in more

detail below, the DMV has already denied IDs to more than 50 applicants who sought

IDs under the DMV’s current rules, and it is likely that many others will be unable to

obtain ID with reasonable effort. Moreover, it is clearly impracticable to join all such

individuals as plaintiffs. There is no way to identify every person in the state who

currently faces high hurdles to obtaining ID. Indeed, many individuals likely will not

even realize that they fall within the class definition until they attempt to obtain ID and

discover the hurdles that affect them. For example, a person might believe that it will be

easy to obtain an ID only to discover, upon getting to the DMV, that his or her

documentation is not acceptable. This person will benefit from the relief sought by the

class but could not have been joined as a named plaintiff. A related point is that new



9

class members will be created while the case is pending, as people turn eighteen, move

to Wisconsin, or otherwise become eligible to vote here and discover that they cannot

obtain ID with reasonable effort. It is not possible to identify all of these individuals in

advance and join them as named plaintiffs. Accordingly, Rule 23(a)(1) is satisfied.

Commonality. Rule 23(a)(2) provides that a class may be certified only if “there

are questions of law or fact common to the class.” This requires the plaintiff to

demonstrate that the class members “have suffered the same injury.” Wal-Mart Stores,

Inc. v. Dukes, 564 U.S. 338, 349–50 (2011) (quoting Gen. Tel. Co. of Southwest v.

Falcon, 457 U.S. 147, 157 (1982)). This, in turn, requires the plaintiff to show that the

class’s claims “depend upon a common contention” that is central to the validity of every

class member’s claim and which can be resolved on a classwide basis, i.e., in one

stroke. Id. at 350. Here, I conclude that plaintiffs have satisfied this standard. One

common question is this: Does Act 23, as applied to those who cannot with reasonable

effort obtain qualifying ID, violate the Constitution as it was understood in decisions

such as Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504

U.S. 428 (1992)? If the answer to this common question is yes, then another common

question arises: Is the proper remedy for this violation of the class members’ rights an

injunction requiring the creation of an affidavit option in the form that the plaintiffs have

sought?

Typicality. Rule 23(a)(3), in pertinent part, requires that “the claims . . . of the

representative parties [be] typical of the claims . . . of the class.” The Seventh Circuit

has interpreted this requirement to mean that the named representatives’ claims must

“have the same essential characteristics as the claims of the class at large.” De La

Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983); accord Munro v.



10

Target Corp., 580 F.3d 485, 492 (7th Cir. 2009). The court has stated that “[a] plaintiff’s

claim is typical if it arises from the same event or practice or course of conduct that

gives rise to the claims of other class members and his or her claims are based on the

same legal theory.” De La Fuente, 713 F.2d at 232 (quoting H. Newberg, Class Actions

§ 1115(b) at 185 (1977)); accord Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir.

2006). The court has also stated that “[t]he typicality requirement may be satisfied even

if there are factual distinctions between the claims of the named plaintiffs and those of

other class members.” De La Fuente, 713 F.2d at 232; accord Oshana, 472 F.3d at

514.

In the present case, I conclude that the claims of class representatives Frank,

Robertson, Switlick and Green are typical of the claims of the class. The named

plaintiffs’ claims share the same essential characteristics as the claims of the class at

large. Those characteristics are (1) the lack of a qualifying ID, and (2) the existence of

a high hurdle to obtaining such ID. The class representatives’ claims are also based on

the same legal theory as the class’s claims, i.e., violation of the Constitution as

understood in Anderson and Burdick.

Adequacy of representation. Rule 23(a)(4) requires the representative parties to

demonstrate that they will “fairly and adequately protect the interests of the class.” This

requirement focuses on matters such as whether the class representatives have

retained appropriate counsel and whether the representatives have interests that

conflict with the interests of the class. See, e.g., Retired Chicago Police Ass’n v. City of

Chicago, 7 F.3d 584, 598 (7th Cir. 1993). In the present case, the defendants do not

dispute that Frank, Robertson, Switlick and Green are adequate class representatives,



11

and it appears to me that they and their counsel will fairly and adequately protect the

interests of the class. Therefore, I conclude that Rule 23(a)(4) is satisfied.

B.

I next examine whether one of the conditions in Rule 23(b) is satisfied. Here, the

plaintiffs seek certification under either Rule 23(b)(1) or Rule 23(b)(2). I conclude that

certification is proper under Rule 23(b)(2) and for that reason will not discuss Rule

23(b)(1).

Rule 23(b)(2) permits class certification if “the party opposing the class has acted

or refuses to act on grounds that apply generally to the class, so that final injunctive

relief or corresponding declaratory relief is appropriate respecting the class as a whole.”

Fed.R.Civ.P. 23(b)(2); Chicago Teachers Union, Local No. 1 v. Bd. of Educ., 797 F.3d

426, 441 (7th Cir. 2015). “Colloquially, 23(b)(2) is the appropriate rule to enlist when the

plaintiffs’ primary goal is not monetary relief, but rather to require the defendant to do or

not do something that would benefit the whole class.” Chicago Teachers Union, 797

F.3d at 441. Rule 23(b)(2) is generally considered to be the appropriate procedural

vehicle for certifying civil-rights claims seeking injunctive relief. Id.

Here, the defendants have acted or failed to act on grounds that apply generally

to the class, in that Act 23 applies to all of those who cannot with reasonable effort

obtain qualifying ID. Moreover, the general requirements for obtaining qualifying ID are

the same for all class members. Although the class members do not all face the same

high hurdles to obtaining ID, the plaintiffs have not asked the court to fashion different

remedies for each hurdle. Rather, the plaintiffs seek an injunction requiring the

defendants to allow all class members to vote by presenting an affidavit in lieu of photo

ID. This would be an adequate remedy for the entire class, and thus final injunctive



12

relief would operate in favor of the class as a whole. Certification is therefore

appropriate under Rule 23(b)(2).

C.

The defendants also contend that class certification should be denied because

the proposed class is vague or indefinite, i.e., that it is not “ascertainable.” See Alliance

to End Repression v. Rochford, 565 F.2d 975, 977–78 (7th Cir. 1977). I disagree. The

class is defined as all eligible Wisconsin voters who cannot with reasonable effort obtain

qualifying ID. Although one may contend that the term “reasonable effort” is indefinite,

as applied to the facts of this case it is definite enough. The essential point is that the

class includes anyone who does not currently possess qualifying ID and who, to obtain

one, would have to do more than retrieve a birth certificate and related documents from

his or her desk drawer and make a single trip to the DMV. The class would also

include those who cannot, without going to unreasonable lengths, make a single trip to

the DMV, such as those with health problems who find travel difficult and those who

cannot afford the costs of transportation to the DMV.

To administer this case, it is not necessary to define the class with greater

precision. Because the class is being certified under Rule 23(b)(2), there will be no

need to identify specific class members so that they may receive notice and an

opportunity to opt out. See Fed. R. Civ. P. 23(c)(2); 1 William B. Rubenstein, et al.,

Newberg on Class Actions § 3:7 (5th ed. 2011) (explaining that definiteness is less

important in Rule 23(b)(2) cases, where class members do not have notice and opt-out

rights); 5 James Wm. Moore, Moore’s Federal Practice–Civil § 23.21[5] (3d ed. 2016)

(same). Moreover, the lack of greater definiteness will not impede the adjudication of

the class’s claims or the implementation of the affidavit remedy. It is not necessary to



13

identify all class members who cannot with reasonable effort obtain ID in order to

determine whether any person who cannot is entitled to relief. Likewise, the defendants

do not need to identify any class members in advance to implement the affidavit

procedure. Rather, the defendants merely need to make the affidavit forms available to

all voters and allow those who complete them to receive a ballot without producing an

ID. Thus, the class is definite enough to make all aspects of this case administrable.

See Moore, supra, § 23.21[5] (“Because [in a Rule 23(b)(2) class] the defendant is

obligated to comply with any orders granting injunctive or declaratory relief and the

representative plaintiffs may enforce compliance, the court may not need to identify

each individual who might be entitled to relief.”).

IV.

Having certified a class, I turn to the plaintiffs’ request for a preliminary injunction.

To obtain a preliminary injunction, the plaintiffs must make an initial showing that (1)

they will suffer irreparable harm in the period before the final resolution of their claim; (2)

traditional legal remedies are inadequate; and (3) the claim has some likelihood of

success on the merits. BBL, Inc. v. City of Angola, 809 F.3d 317, 323–24 (7th Cir.

2015). If the plaintiffs make this showing, the court weighs the factors against one

another, assessing whether the balance of harms favors the plaintiffs or whether the

harm to the defendants or the public is sufficiently weighty that the injunction should be

denied. Id.

In the present case, the first two factors of the initial showing are clearly satisfied.

Those who cannot with reasonable effort obtain qualifying ID will be unable to vote in

any elections that occur between now and when their claims are finally resolved. At

least two elections will occur during that period: the partisan primary on August 9, 2016,



14

and the general election on November 8, 2016. However, additional elections are likely

to occur before the plaintiffs’ claims are finally resolved, including a statewide election

on February 21, 2017. See Decl. of Michael Haas ¶ 44, ECF No. 286. If the plaintiffs

were unable to vote in these elections, traditional legal remedies, such as monetary

damages, would be inadequate. Thus, whether the plaintiffs are entitled to a

preliminary injunction turns on their likelihood of success on the merits and whether the

balance of harms favors the issuance of an injunction. I consider these issues below.2

A.

Under the framework set forth in Anderson v. Celebrezze, 460 U.S. 780 (1983),

and Burdick v. Takushi, 504 U.S. 428 (1992), a voting regulation will violate the

constitutional rights of a plaintiff where the regulation imposes an undue burden on the

plaintiff’s voting rights. To determine whether a regulation imposes an undue burden,

the court balances the burdens faced by the plaintiff against the state’s interests in the

regulation, “taking into consideration ‘the extent to which those interests make it

necessary to burden the plaintiff’s rights.’” Burdick, 504 U.S. at 434 (quoting Anderson,

460 U.S. at 789).

In the present case, the defendants contend that Act 23 furthers its interests in

detecting and deterring voter-impersonation fraud and in promoting public confidence in

the integrity of elections. These interests have been recognized as important enough to

2 The defendants have filed a motion to strike some of the evidence that the plaintiffs have filed in support of their motion for a preliminary injunction. See ECF No. 290. That evidence consists largely of declarations and discovery materials that were gathered during the course of the One Wisconsin case in the Western District of Wisconsin. The defendants have not cited any Federal Rule of Civil Procedure, local rule of this court, or other legal authority that supports their motion. Nor am I aware of any rule or authority that would support striking this evidence. Accordingly, the motion to strike will be denied.



15

justify the burdens that Act 23 places on the vast majority of Wisconsin’s voters, who

either already possess qualifying ID or can obtain qualifying ID with reasonable effort.

See Frank I, 768 F.3d at 749–51. The question presented at this stage of the case is

whether the state’s interests are sufficient to require some voters to expend more than

reasonable effort to obtain qualifying ID, and to disenfranchise those voters who cannot

obtain ID not matter how hard they try. See Frank II, 819 F.3d at 386–87.

1.

The defendants do not contend that the Constitution permits Wisconsin to deny

access to a ballot to those who cannot with reasonable effort obtain qualifying ID.

Rather, they contend that all eligible voters in the state who employ reasonable effort

will obtain qualifying ID—specifically, a Wisconsin state ID card issued by the Wisconsin

Department of Transportation’s Division of Motor Vehicles (“DMV”). I thus begin by

discussing the evidence in the record that pertains to the DMV’s procedures for issuing

these IDs to voters who need them. I then address whether those procedures ensure

that all voters who employ reasonable effort will obtain qualifying ID. As the discussion

below indicates, while the DMV’s latest procedures may make it easy for the majority of

applicants to obtain a state ID card, there will still be some who will be unable to obtain

ID with reasonable effort. A safety net, such as the plaintiffs’ affidavit option, is

necessary to protect the voting rights of these individuals.

a.

The basic requirements for obtaining a free state ID card for voting purposes are

set out in a Wisconsin administrative regulation, Trans 102.15. See Wis. Admin. Code

§ Trans 102.15. This regulation requires applicants to present proof of six items: (1)



16

name, (2) date of birth, (3) United States citizenship,3 (4) identity, (5) Wisconsin

residency, and (6) social security number. See § Trans 102.15(3), (3m), (4), (4m) & (5).

To prove name, date of birth and United States citizenship, most applicants will need to

produce a birth certificate. §§ Trans 102.15(3)(a)1–2, (3m)(a)1; Frank, 17 F. Supp. 3d

at 856. To prove identity, most applicants will need to produce a social security card.

§ Trans 102.15(4)(a)13; Frank, 17 F. Supp. 3d at 856–57. To prove Wisconsin

residency, an applicant must produce a document that lists the applicant’s address,

such as a utility bill or paystub. § Trans 102.15(4m). To prove social security number,

the person generally needs no documentation but must provide the number to the

DMV. § Trans 102.15(5).

In my original opinion in this case, which I issued in April 2014, I made extensive

findings about the burdens a person may encounter when trying to prove the six items

required by Trans 102.15. See Frank, 17 F. Supp. 3d at 855–62. However, since the

date of that opinion, Wisconsin has made several changes to this rule in an attempt to

make the process of obtaining ID easier. The DMV has also adopted various informal

practices that have not been codified in the rule but which are designed to further

reduce the burdens associated with obtaining ID for voting purposes.

Under the current system, to obtain a free state ID card, a person begins by

gathering whatever documentation he or she has and bringing them to a DMV customer

service center. There are 92 service centers, or field offices, in the state. Each county

3 To receive a state ID card, a person does not have to be a United States citizen. Rather, a person who is not a citizen may receive a state ID card if he or she is a legal permanent resident or is otherwise legally present in the United States. See Wis. Admin. Code § Trans 102.15(3m). However, to be qualified to vote, a person must be a United States citizen. See Wis. Stat. § 6.02. Thus, if a person applies for a free state ID card to use for voting purposes, the person must prove U.S. citizenship.



17

has a service center that is open at least 20 hours per week. If a person arrives at a

service center, completes an application for a free state ID card, and produces all of the

necessary documentation to prove the six items required by Trans 102.15, the DMV will

issue the person an ID. Decl. of Kristina Boardman ¶ 9, ECF No. 287.4 If, however, the

person arrives at the DMV and is either missing a required document or the documents

are not in order (such as because the person’s name is different or spelled differently on

a supporting document), the person will have to rely on one of the DMV’s procedures for

handling these problems.

One of the DMV’s procedures is known as the ID Petition Process, or “IDPP.”

This process is used when the ID applicant does not have a birth certificate or other

document needed to prove name, date of birth, and/or United States citizenship. The

authority for the DMV to use this process is found in § Trans 102.15(5m), which was

recently amended by way of an emergency rule promulgated by the Department of

Transportation and approved by Wisconsin’s governor. See Emergency Rule 1618,

§§ 6–9 (effective May 13, 2016).5 However, the DMV has been applying this procedure

since September 2014. Boardman Decl. ¶ 12.

To use the ID petition process, an individual must go to a DMV service center, fill

out an application for a free state ID card, and also complete a petition (known as “Form

MV3012”) to be issued an ID without producing documents that prove name, date of

birth, and citizenship. The person must also present documents to prove identity and

Wisconsin residency. Boardman Decl. ¶ 13. Once this happens, an employee at the

4 Kristina Boardman is the Administrator of the DMV.

5 The emergency rule can be found on the Internet by entering “Emergency Rule 1618” into a search engine. Copies of the rule have been filed with the court. See ECF No. 280-24.



18

DMV service center scans any documents that the applicant brought to the DMV and

transmits them to the DMV’s central office in Madison. The central office will then

attempt to verify the applicant’s name, date of birth, and U.S. citizenship by contacting

various federal, state, and local agencies. The DMV does not charge the applicant a

fee for using the petition process, and the goal of the process is to verify the applicant’s

qualifications without requiring the applicant to make trips to other agencies or to pay a

fee to obtain documents like a birth certificate.

The ID petition process is performed in stages. In the first stage, DMV’s central

office attempts to quickly verify the applicant’s qualifications by finding his or her birth

certificate through contact with public agencies. If the central office is successful, it will

mail an ID card to the applicant’s address. However, if the central office is

unsuccessful, the petition enters the second stage, where it is referred to the DMV’s

Compliance, Audit and Fraud Unit, which goes by the acronym “CAFU.” Boardman

Decl. ¶ 20. Once the petition reaches CAFU, an investigator is assigned to the case.

The investigator then employs “investigatory skills developed in other aspects of

CAFU’s work” to verify the applicant’s name, date of birth, and citizenship. Id. ¶ 23.

These investigators are not restricted in the information they can consider and will often

talk to family members, hospitals, and school districts to verify the applicant’s

qualifications. An investor may also contact the applicant and ask him or her to provide

additional information. CAFU’s primary goal is to locate the applicant’s birth certificate.

But if it cannot find one, CAFU will try to find one of the documents that may be

accepted as a birth-certificate substitute under the DMV’s “extraordinary proof” process.

See Wis. Admin. Code § Trans 102.15(5m)(b)3. These documents include: a baptismal

certificate, a hospital birth certificate, a delayed birth certificate, a census record, an



19

early school record, a family bible, and a doctor’s record of post-natal care. Id. After

CAFU concludes its investigation, it makes a recommendation to the Director of the

DMV’s Bureau of Field Service (currently Jim Miller). The Director then makes the final

decision on the petition. Boardman Decl. ¶ 29. The administrative rule, as amended by

Emergency Rule 1618, states that a petition must be granted if the Director “concludes,

on the basis of secondary documentation or other corroborating information, that it is

more likely than not that the name, date of birth or U.S. citizenship provided by the

applicant is correct.” Emergency Rule 1618, § 8. If the Director denies the petition, the

applicant does not receive an ID.

The May 2016 emergency rule also created a process under which the DMV

must issue a temporary identification card “receipt” to any person who applies for a

state ID card to use for voting purposes and who needs to use the ID petition process.

See Emergency Rule 1618, § 10 (creating § Trans 102.15(6m)). The receipt is a sheet

of paper that contains the person’s name, signature, photograph, and other information

(such as the date of issuance and an expiration date). See Ex. 1020, ECF No. 287-8.

An unexpired identification card receipt is a form of qualifying ID under Act 23 and thus

can be used for voting. See Wis. Stat. § 5.02(6m)(d). The emergency rule provides

that the DMV must issue the receipt “not later than the sixth working day after the

applicant” files the petition to use the ID petition process (i.e., Form MV3012), and that

the receipt must be issued by first-class mail. Emergency Rule 1618, § 10. Thus, if a

person applies for a state ID card for voting purposes, also submits Form MV3012, and

also supplies sufficient proof of identity and Wisconsin residency, the DMV will mail the

person a temporary ID receipt within approximately six days. The person may then use

the ID for voting purposes while he or she is waiting for the DMV’s central office and/or



20

CAFU to verify his or her name, date of birth, and U.S. citizenship. The DMV also has

an internal policy under which, during the week of an election, it will mail a temporary ID

receipt to an applicant on the same day that the application is made. Boardman Decl.

¶ 44. The purpose of this internal policy is to get a temporary ID receipt into the hands

of a voter who did not have qualifying ID on election day in time to allow the voter to

validate his or her provisional ballot by 4 p.m. on the Friday after the election.6 Id.

A temporary ID receipt expires after 60 days. Wis. Stat. § 343.50(1)(c).

However, the Emergency Rule requires the DMV to mail a new receipt to an applicant

10 days before the receipt expires. Emergency Rule 1618, § 10. The DMV states that

it will generally send two renewals to an applicant, such that all applicants will have a

valid ID receipt for a total of 180 days. Boardman Decl. ¶ 41. Moreover, a person will

continue getting additional renewal ID receipts so long as the person’s ID petition is

under review. Id. The DMV will stop issuing renewal receipts only if it determines that

the applicant committed fraud, it determines that the person is not eligible for a

permanent ID, the applicant does not respond to DMV requests for further information

related to the investigation, or the person requests that the DMV cancel the ID petition

process. Id.

In addition to the ID petition process, the DMV has adopted two new procedures

for processing ID applications in which there is a discrepancy between the name on a

birth record or other underlying document and the name the applicant uses. First, the

DMV will disregard a single-letter discrepancy in the applicant’s first, middle, or last

6 Under Wisconsin law, if a person does not have qualifying ID on election day, he or she may cast a provisional ballot. Wis. Stat. § 6.79(3)(b). The ballot will not be counted unless the person presents qualifying ID to the municipal clerk or board of election commissioners by 4 p.m. on the Friday following the election. Wis. Stat. § 6.97(3)(b).



21

name. See Boardman Decl. ¶ 36. Thus, if the person uses the first name “Shaun” but

an underlying document lists his first name as “Shawn,” the person will still be issued an

ID without having to use any formal exception process. (The DMV’s policy of

disregarding single-letter discrepancies is not codified in the Administrative Code.)

Second, if an individual has a different name, or a name that is significantly different

from the name on his or her birth record, then a person can fill out a document that the

DMV keeps on hand entitled “Affidavit of Common Law Name Change.” This

procedure, which was recently codified as part of the May 2016 emergency rule, see

Emergency Rule 1618 §§ 1–3, is designed for cases in which a person has used a

name that is different from the one that appears on his or her birth certificate for many

years but has not had the name officially changed by a court order or other formal

means. Under Wisconsin common law, if the person has consistently and continuously

used the name, then the name is considered to have been legally changed even though

no formal procedure was used. See State v. Hansford, 219 Wis. 2d 226, 245–46

(1998). The DMV’s affidavit procedure allows the applicant to make this fact known to

the DMV. The DMV’s form affidavit contains a space for a notary signature, but

according to the defendants, a DMV employee may notarize the form for free.

Boardman Decl. ¶ 38; but see Young Decl. Ex. 41(applicant tells CAFU agent that he

cannot get name-change affidavit notarized and agent does not advise applicant that

notary services are available at the DMV). After the person submits the affidavit, the

DMV will do “research” and then either approve or deny the name-change request. See

Boardman Decl. Ex. 1018 at 2 (internal DMV document stating that “approval process

may take up to 2 weeks while research is completed” and that DMV will “send the

customer a letter approving or denying the request to change their name”).



22

Presumably, if the name change is approved, the DMV will also send the person an ID

card. However, I have been unable to locate anything in the record that explains when

an ID will be issued after a person submits an Affidavit of Common Law Name Change.

b.

Having explained the DMV’s current procedures for issuing state ID cards, I next

consider whether they result in all voters who employ reasonable effort obtaining

qualifying ID. I conclude that although many individuals who need qualifying ID will be

able to obtain one with reasonable effort under these procedures, there will still be some

who will not. Indeed, because there are likely thousands of eligible voters in Wisconsin

who lack qualifying ID, see Frank, 17 F. Supp. 3d at 854, it is virtually self-evident that

some of them will either need to exercise extraordinary effort to obtain qualifying ID or

be unable to obtain ID no matter how hard they try. However, as explained below, the

evidence produced so far also supports this conclusion.

The record contains evidence about the results of the DMV’s ID petition process,

which, as explained above, is used when an applicant for an ID cannot produce a birth

certificate or other record that proves name, date of birth, and citizenship. According to

the defendants, between September 15, 2014 and May 12, 2016, applicants filed 1,389

petitions. Boardman Decl. ¶ 32. Of those, 1,132 petitions were granted. Of the

remaining 257 petitions, 67 remain “pending.” Id. Ex. 1017. This leaves 190 petitions

that were resolved without issuing an ID to the applicant. Of these, 98 are listed as

“cancelled by the customer,” 40 were suspended based on the lack of response from

the applicant, and 52 were flat denials. Id. The defendants state that one petition was

denied because it was determined that the person was not a U.S. citizen. Boardman



23

Decl. ¶ 33. No evidence in the record suggests that the remaining denials involved

applications by individuals who are not eligible to vote in Wisconsin.

From the evidence in the record pertaining to the denied ID petitions, I find that it

will be impossible or nearly impossible for some class members to obtain a free state ID

card. The record contains reports and other internal DMV documents reflecting that

several ID petitions were denied because the applicant was unable to provide, and

CAFU was unable to locate, satisfactory information proving name, date of birth, and/or

citizenship. For example, one report pertains to a woman was born in Cook County,

Illinois, and who did not have a copy of her birth certificate. Young Decl., Ex. 59. The

DMV was unable to locate her birth records, and when a CAFU investigator contacted

Cook County Hospital, he was told that the hospital would not release information over

the phone and would only release information to the applicant for a fee. The CAFU

investigator then contacted the applicant and asked her to provide one of the other

documents accepted as a birth-certificate substitute, such as a baptismal certificate.

The applicant informed the investigator that she did not have any of those documents

and had no way to obtain them. The investigator told her that he would keep trying. A

few months later, the applicant called the DMV and expressed frustration that it had not

verified her qualifications and issued her an ID. Eventually, the DMV denied the petition

because it could not verify the applicant’s qualifications and the applicant could not

provide the DMV with any further leads. Reports and internal DMV emails pertaining to

other applicants indicate that other petitions were denied for similar reasons. See

Young Decl. Ex. 60 (petition denied because CAFU could not find birth record and

applicant did not have access to documents accepted as birth-certificate substitute); id.

Ex. 56 (same); id. Ex. 45 (petition denied because CAFU could not find birth record and



24

applicant did not respond to request to produce birth-certificate substitute); id. Ex. 44

(same).

Other reports suggest that individuals will be unable to obtain ID without going to

unreasonable lengths. In one case, CAFU could not find a birth certificate for a person

who was born in Tennessee, but it could find a birth certificate and social security

number that seemed to match the individual but which contained a different last name

than the one she currently used. The CAFU investigator eventually determined that,

most likely, the name discrepancy stemmed from the fact that the applicant had been

adopted and her original birth certificate had been voided. The investigator determined

that the only solution to the problem was for the applicant to find court documents or

adoption papers from Tennessee that supported her current name. The investigator

informed the applicant of this fact and gave her the number for a Tennessee post-

adoption service. When the applicant did not contact CAFU with further information, her

application for a state ID card was denied. See Young Decl. Exs. 39 & 61. In this case,

it appears that it may have been possible for the applicant to obtain an ID. However, to

obtain the ID, the applicant would have had to exert unreasonable effort in tracking

down adoption papers and court records from Tennessee.

In another case involving a name mismatch, the applicant’s name was spelled

differently on his Mississippi birth certificate than it was on his social security card. Id.

Ex. 42. The applicant considered the name on the birth certificate to be a misspelling.

When the applicant’s daughter brought the birth certificate to the DMV, the employees

at the counter informed her that she would have to return to Mississippi to get the name

corrected. The daughter informed CAFU that the people at the counter “were very

nasty to her.” However, the CAFU investigator asked her to return to the DMV and



25

have the employees at the counter scan the birth certificate so it could be sent to the

investigator. The daughter did this but experienced additional problems with staff at her

local DMV. (The daughter told the investigator that the process “has been the biggest

headache.”) About a month after the petition was submitted, the investigator informed

the applicant’s daughter that the applicant would need to either request a name

correction through the Social Security Administration or initiate court proceedings to

legally change his name. When the daughter informed the investigator that the

applicant was not willing to do either of these things, the investigator recommended that

the DMV send the applicant a denial letter. However, someone at the DMV then

advised the investigator that the applicant could use the common law name-change

affidavit. The investigator relayed this information to the daughter. The daughter then

submitted the affidavit, but the DMV rejected it because the applicant’s “old name”

(which he had not used for 74 years) was misspelled on the affidavit and because the

daughter had signed the affidavit rather than the applicant. The daughter advised the

DMV that she had power of attorney for her father, who recently had a stroke and could

not write. The DMV then sent the daughter a copy of the affidavit with the old name

correctly spelled and advised her to sign and return the affidavit along with proof that

she had power of attorney for her father. When the DMV received no further response

from the applicant or his daughter, it denied the petition. By this time, the daughter had

been trying for five months to obtain an ID for her father.

In this case, the applicant may have eventually been able to obtain ID. However,

doing so would have involved an unreasonable amount of effort. The applicant’s

daughter made numerous contacts with the DMV over a five-month period, including

two in-person trips that the daughter found unpleasant, and sending in a name-change



26

affidavit that the DMV rejected. Although the daughter did not respond after the DMV

mailed her a second name-change affidavit and requested proof that she had power of

attorney for her father, by that point the daughter had already exerted more than

reasonable effort on her father’s behalf.

Next, I find that errors made by DMV staff will result in applicants being unable to

obtain ID with reasonable effort. It is virtually self-evident that in a large bureaucracy

like the DMV—which has 92 separate locations and between 350 and 370 employees at

those locations, see Boardman Decl. ¶ 7—errors will be made. Some of these errors

will prevent applicants from obtaining ID with reasonable effort. One error that seems to

happen frequently is counter staff’s failure to inform an ID applicant who lacks a birth

certificate that he or she can use the ID petition process. See Young Decl. Exs. 20, 57.

If an applicant who lacks a birth certificate is not informed of the petition process, he is

likely to conclude that he cannot obtain an ID and may give up, even if he might have

been able to obtain an ID easily if he had been told about the petition process. A

related error that has occurred is CAFU’s failing to inform applicants with name

mismatches that they could use the common law name-change affidavit and obtain

notary services for free at the DMV. See Young Decl. Exs. 41 at p.2 (applicant informs

CAFU investigator that he cannot get affidavit notarized and investigator does not

advise him that notary services are available at DMV) & 42 (CAFU recommends

denying ID to applicant with name mismatch without realizing that applicant could use

name-change affidavit). Other errors may result in an applicant having to make a

second trip to the DMV to complete the application process. See id. Exs. 65 & 72;

Boardman Decl. ¶ 34 (noting that DMV staff members sometimes fail to scan or copy an

applicant’s documents, and that when this happens the applicant must return to the



27

DMV to supply the necessary information a second time). This second trip would

involve more than reasonable effort for many voters, especially those with limited time

and limited access to transportation.

Another burden for those who use the ID petition process is keeping in touch with

the CAFU investigator over the period of weeks or months that it takes the investigator

to verify the applicant’s qualifications. In some cases, this will be a substantial burden.

For example, one CAFU report documents a case in which an applicant had to stay in

touch with an investigator over a three-month period. See Young Decl. Ex. 41. During

that time, the applicant spoke on the phone with the investigator nine times, made two

in-person visits to his local DMV, made calls to other agencies in an effort to track down

documents, and asked his nephew to scan and email documents to the DMV.

Eventually, the applicant was issued an ID, but only after exerting more than reasonable

effort. If this applicant had been homeless, he would almost certainly have failed to

obtain an ID. Although the DMV states that it is able to mail documents to a homeless

person though a shelter, food pantry, or social-services agency, see Boardman Decl.

¶ 31, it would be nearly impossible for a homeless person to make nine phone calls to a

CAFU investigator over a three-month period. The DMV has acknowledged that is

difficult for CAFU to keep in touch with applicants. See Dep. of Susan Schilz at 34:14–

35:5 (attached as Ex. 37 to Young Decl.).

Another problem is that the DMV’s new procedures do not relieve an applicant

from having to produce a document that proves his or her identity. See Wis. Admin.

Code § Trans 102.15(4) (requiring proof of identity); Boardman Decl. ¶ 13 (person using



28

ID petition process must still provide proof of identity and Wisconsin residency).7 As I

found during the trial on the plaintiffs’ original claims, to satisfy this requirement, a

person will generally need to produce a social security card. Frank, 17 F. Supp. 3d at

856–57. However, to obtain a social security card, a person generally must present

photo ID to the Social Security Administration. Id. Obviously, a person applying for a

free photo ID for voting will not already have a photo ID, and thus it will be nearly

impossible for a person who needs a free photo ID and does not already possess his or

her social security card to prove identity.8 See Frank II, 819 F.3d at 386. The DMV

does accept other documents as proof of identity, such as a valid state ID card or

driver’s license from another jurisdiction, military discharge papers, or a marriage

certificate, see Wis. Admin. Code § Trans 102.15(4)(a), but many applicants who lack

ID will also lack these documents. Moreover, the DMV does not have any procedure in

place that is analogous to the IDPP in which DMV employees will track down proof of

7 Emergency Rule 1618, § 4 exempts a person applying for a free ID for voting purposes from having to provide his or her social security number, which would otherwise be required under Trans 102.15(5). However, the Emergency Rule does not relieve the person from having to prove identity under Trans 102.15(4), which, as discussed in the text, generally requires an applicant to produce a social security card.

8 The administrator of the DMV states that a temporary ID card receipt can be used to obtain “birth records and source documents from other jurisdictions that require a photo ID with an application.” Boardman Decl. ¶ 45. However, under DMV rules, a person cannot obtain a temporary ID card receipt without proof of identity, and thus a person who must obtain a social security card to use as proof of identity will not be eligible for a temporary ID card receipt. See id. ¶ 40 (temporary ID card receipt issued to those who enter IDPP) & ¶ 13 (to enter IDPP, a person must produce proof of identity and Wisconsin residency). Moreover, even if a person without proof of identity could obtain a temporary ID card receipt, the evidence suggests that the Social Security Administration will not issue a social security card to those who present such a receipt as their only form of identification. See Young Decl. Ex. 17 at p.6 (Social Security Administration flyer stating that “DMV receipt” cannot be used to obtain a replacement social security card).



29

identity on behalf of an applicant. Thus, I find that the proof-of-identity requirement will

result in some eligible Wisconsin voters being unable to obtain ID with reasonable effort.

Another category of eligible voters who will be unable to obtain ID with

reasonable effort is those who cannot reasonably make even a single trip to the DMV.

See Crawford, 553 U.S. at 198 (implying that, for some voters, making even a single trip

to the DMV is an undue burden on the right to vote). This category includes those who

because of health reasons cannot travel easily, those without reasonable access to

transportation to the DMV, and those who cannot afford to miss work for the time

required to make a trip to the DMV. See Decl. of Rachel Fon, ECF No. 280-12

(explaining that health problems and poverty have made it impossible for her to obtain

ID “without going through a great amount of effort”). The defendants point out that

Wisconsin law allows those who are “indefinitely confined because of age, physical

illness or infirmity,” and those who are “disabled for an indefinite period,” to vote by

absentee ballot without proof of identification. See Wis. Stat. §§ 6.86(2)(a); 6.87(4)(b)2.

However, assuming that this removes any undue burden on the voting rights of those

who meet the definitions of “indefinitely confined” or “disabled for an indefinite period,” it

does nothing to help the other members of this category, including those whose health

problems do not result in “confinement” or rise to the level of a disability, and those who

simply cannot afford a trip to the DMV. Thus, transportation barriers will result in some

eligible voters being unable to obtain ID with reasonable effort.

Finally, those who find themselves without qualifying ID on election day might be

unable to obtain ID in time to have their ballots counted without going to unreasonable

lengths. This category of eligible voters includes those who reasonably believe that

they already possess qualifying ID, only to discover at the polls that their ID is



30

unacceptable. See Decl. of Alexandra Kirschner ¶ 6, ECF No. 280-15 (arrived at polls

believing that she could use out-of-state driver’s license as proof of identification); Decl.

of Miguel Angel Vega ¶ 6, ECF No. 280-21 (same); Decl. of Neil Albrecht ¶ 9, ECF No.

280-8 (executive director of the Milwaukee election commission described how he

personally observed two voters attempt to vote using IDs that had expired outside the

acceptable expiration range). As I previously noted, under Wisconsin law, these voters

may cast a provisional ballot, but they must validate the ballot by presenting qualifying

ID to a municipal clerk or city election commission by 4 p.m. on the Friday following the

election. See Wis. Stat. §§ 6.79(3)(b); 6.97(3)(b). Because elections are held on

Tuesdays, these voters will have about three days to get to the DMV, obtain qualifying

ID, and then get to the office of the municipal clerk or election commission. Even voters

who have in their possession everything they need to obtain an ID from the DMV may

be unable, with reasonable effort, to jump through these hoops within three days.

However, those who need to use the ID petition process will face higher hurdles. These

voters will be able to validate their provisional ballots only after receiving temporary ID

card receipts in the mail. Thus, these voters must get to the DMV immediately, apply

for an ID through the petition process, and then hope that the temporary ID card receipt

arrives in the mail within a day or two. If it does, then the voter must immediately get to

the office of the municipal clerk or election commission to validate his or her provisional

ballot. Not all such voters will be able to complete this process in time. See Kirschner

Decl. ¶ 6, ECF No. 280-15 (unable to validate provisional ballot in time); Vega Decl. ¶ 6,

ECF No. 280-21 (same).

Before moving on, I note that the defendants contend that no voter will face

undue burdens under the DMV’s current procedures because, according to them,



31

“[a]nyone who goes to a Wisconsin DMV office and applies for a free state ID will be

mailed, within six days, either an ID card or photo receipt that is valid for voting.” Defs.’

Br. at 1, ECF No. 285. The defendants then contend that, for this reason, no eligible

voter who employs reasonable effort will fail to obtain qualifying ID. However, as

discussed above, the record does not support the defendants’ contention that anyone

who goes to the DMV and applies for an ID will receive either an ID or a temporary ID

card receipt. Those who do not supply sufficient proof of identity and proof of Wisconsin

residency will not receive even a temporary ID card receipt. Boardman Decl. ¶ 40

(temporary ID card receipt issued to those who enter ID petition process) & ¶ 13 (to

enter ID petition process, a person must produce proof of identity and Wisconsin

residency). Moreover, the defendants’ contention overlooks the possibility that DMV

staff will err and fail to inform applicants who lack underlying documentation about the

ID petition process and related procedures. These applicants will be turned away

without receiving even a temporary ID card receipt. The defendants also overlook those

who cannot with reasonable effort make even a single trip to the DMV to begin the ID

petition process and be mailed a temporary ID card receipt, as well as those who do not

realize they lack qualifying ID until election day and who cannot reasonably be expected

to obtain a temporary ID card receipt and validate a provisional ballot within three days.

In any event, even if it were true that every eligible voter in Wisconsin who needs

ID could with reasonable effort obtain a temporary ID card receipt in time for the next

election, it would not follow that the plaintiffs are not entitled to relief. Obviously, a

temporary ID card receipt will at some point expire and not be renewed. What every

class member will eventually need is an actual ID card, not just an ID card receipt. As

demonstrated above, some eligible voters who apply for an ID using the petition



32

process will eventually be denied an ID card because the DMV will be unable to verify

their qualifications. When their temporary ID cards expire, these individuals will be

unable to vote, potentially for the rest of their lives. Unquestionably, some mechanism

needs to be in place to preserve the voting rights of these individuals.

The defendants contend that even if temporary ID card receipts are not

permanent solutions, they at least make it unnecessary to grant a preliminary injunction,

since every voter who goes to the DMV today and applies for an ID will receive a

temporary ID card receipt that is likely to be valid for 180 days, a period that

encompasses both the August primary and the November general election. Again,

however, I stress that some voters will be unable to obtain even a temporary ID card

receipt with reasonable effort. But even if all could, preliminary relief would still be

needed to prevent irreparable harm to some voters. Although an ID card receipt issued

today is likely to be valid for 180 days, it would expire before February 21, 2017, the

date of the first statewide election scheduled to occur after the November general

election. It is not likely that the plaintiffs’ claims will be finally resolved before then.

Preliminary relief is therefore needed to ensure that the plaintiffs’ voting rights are not

denied during that election and any other elections that may occur before this case is

over.

2.

Having concluded that, even under the DMV’s current procedures, many voters

will be unable to obtain qualifying ID with reasonable effort, I turn to the question of

whether the state’s interests are sufficient to require some voters to employ more than

reasonable effort to obtain an ID to vote. Here, the state’s interests must be measured

against the specific remedy that the plaintiffs seek, which is an injunction requiring the



33

defendants to implement an affidavit option. See Crawford, 553 U.S. at 199–200

(noting that, under the Anderson/Burdick framework, a court must take into account the

specific relief sought by the plaintiffs).

As I previously noted, the state’s interests in requiring photo ID are preventing

voter-impersonation fraud and promoting voter confidence.9 These interests have been

found sufficient to require most voters to present photo ID. Crawford, 553 U.S. at 191–

97; Frank I, 768 F.3d at 749–50. However, no court has found that these interests are

sufficient to prevent a person who cannot obtain ID with reasonable effort, or who

cannot obtain ID at all, from voting. And I find, for the reasons explained below, that

these interests would not be undermined to any significant extent by allowing voters

who cannot obtain ID with reasonable effort to present an affidavit in lieu of photo

identification. Thus, I conclude that the state’s interests do not outweigh the burdens

placed on the plaintiffs’ voting rights, and that the plaintiffs are entitled to an affidavit

remedy. See Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789).

In assigning weight to the state’s interests under the Anderson/Burdick balancing

test, I recognize that those interests are important and that Act 23 serves those interests

to some extent. However, the interests do not justify disenfranchising voters who

cannot with reasonable effort obtain ID. As I found in my original opinion in this case,

there is virtually no voter-impersonation fraud in Wisconsin. Frank, 17 F. Supp. 3d at

847–50. And the defendants have produced no evidence suggesting that the public’s

confidence in the electoral process would be undermined by excusing those voters who

9 The defendants also contend that Act 23 furthers the state’s interests in promoting orderly election administration and accurate recordkeeping. However, the defendants have not identified any way in which Act 23’s photo ID requirement serves these interests other than by detecting and preventing voter fraud. Thus, I do not separately discuss these interests.



34

cannot obtain ID with reasonable effort from presenting ID.10 Indeed, Wisconsin already

allows some to vote without presenting photo ID—those who claim to be indefinitely

confined or disabled. See Wis. Stat. §§ 6.86(2)(a); 6.87(4)(b)2. Moreover, many states

that have voter photo-identification requirements allow those who lack IDs to vote by

signing an affidavit or other statement to that effect rather than by presenting ID, and

the defendants do not suggest that the laws of those states fail to prevent fraud and

promote voter confidence. See Idaho Code § 34-1114; Ind. Code § 3-11.7-5-2.5(c); La.

Rev. Stat. § 18:562; Mich. Comp. Laws § 168.523(2); N.C. Gen. Stat. § 163-

166.13(c)(2); S.C. Code § 7-13-710(D)(1)(b). It is true that some of the states that

accept affidavits or statements in lieu of photo ID require the use of provisional ballots

and other procedures for challenging the ballots cast by those who do not present ID.

However, some states do not. See Idaho Code § 34-1114; La. Rev. Stat. § 18:562.

The defendants here have not argued that the use of provisional ballots is necessary to

protect the state’s interests.

The defendants do contend that allowing voters to use affidavits in lieu of IDs

whenever they “subjectively” determine that they are unable to obtain ID with

reasonable effort “without any process for verifying that reason” would undermine the

integrity of Wisconsin elections. Defs.’ Br. at 21, 24, ECF No. 285. However, the

defendants produce no evidence that supports the notion that allowing a few voters to

present an affidavit while the vast majority present a photo ID would undermine the

integrity of Wisconsin elections, even if the voters who use affidavits are permitted to

10 The Supreme Court recently reiterated that where a state law burdens a constitutional right, the state must produce evidence supporting its claim that the burden is necessary to further the state’s claimed interests. Whole Woman’s Health v. Hellerstedt, No. 15-274, slip op. at 19–21 (June 27, 2016).



35

determine for themselves what constitutes a reasonable impediment and there is no

process for verifying that reason. And it seems to me that even if some voters who use

affidavits give false reasons or reasons that do not qualify as reasonable impediments

(such as “not wanting to pose for a photo”) the state’s interests would not be seriously

undermined. Just about any voter who does not face a reasonable impediment to

obtaining ID will prefer to get the ID rather than take the time to fill out a bogus affidavit

every time he or she goes to the polls. Thus, the number of affidavits listing insufficient

or false reasons should be very tiny. Also, someone who wishes to use the affidavit to

commit fraud will likely list a legitimate reason on the affidavit rather than call attention

to himself or herself by listing a clearly insufficient reason. So coming up with a finite list

of recognized reasonable impediments is not likely to do anything to prevent fraud or to

promote public confidence in elections. Finally, the states that already use “reasonable

impediment” affidavits allow voters to subjectively determine what qualifies as a

reasonable impediment and do not have procedures in place for challenging the

sufficiency of the reasons given. See North Carolina State Conference of the NAACP v.

McCrory, __ F. Supp. 3d __, 2016 WL 1650774, at *120 (M.D.N.C. April 25, 2016);

South Carolina v. U.S., 898 F. Supp. 2d 30, 34, 36–37 (D.D.C. 2012).11 This strongly

suggests that such procedures are not required to protect the states’ interests in

preventing fraud and promoting voter confidence. I also note that the defendants have

not explained how they would go about investigating whether a reason given by a voter

on the affidavit is true or whether it qualifies as a reasonable impediment. Nor have

11 Under the laws of North and South Carolina, “state and county officials may not review the reasonableness of the voter’s explanation”; rather, they may only review the explanation for falsity. South Carolina, 898 F. Supp. 2d at 34; see McCrory, 2016 WL 1650774, at *120 (explaining that North Carolina’s reasonable-impediment procedure is virtually identical to South Carolina’s).



36

they proposed that I incorporate any specific procedures into the affidavit option that

would assist the defendants in verifying the reason given or in adjudicating whether it

qualifies as a reasonable impediment.

The defendants point out that I previously determined that an affidavit remedy

would be inappropriate because it would require me to re-write Act 23 and partially

manage the state’s election officials. See Frank, 17 F. Supp. 3d at 863. However, I

made that determination in the context of choosing between enjoining Act 23 in its

entirety and fashioning a different remedy. I reasoned that the difficulty of implementing

an affidavit remedy weighed in favor of enjoining the law as to all voters. Id. However,

now that such an injunction is off the table, I must create a safety net to prevent those

who cannot obtain ID with reasonable effort from losing the right to vote.12 The

defendants have not proposed their own solution to this problem, and thus the only

potential remedy is the plaintiffs’ affidavit procedure. Even if that approach is not ideal,

it is better than leaving the plaintiffs with no relief at all.

B.

For the reasons stated above, I conclude that the plaintiffs are very likely to

succeed on their claim that Act 23 is unconstitutional as applied to those who cannot

obtain ID with reasonable effort, and that the appropriate remedy is to allow those

voters to present an affidavit in lieu of photo identification. In the discussion above, I

also implicitly addressed the public interest and the balance of harms and determined

that those factors weigh in favor of preliminary relief, in that I determined that the state’s

12 In describing the affidavit option as a “safety net,” I do not mean to imply that it is preferable to an injunction invalidating Act 23 in its entirety. I continue to believe, for the reasons expressed in my original opinion, that enjoining the photo ID requirement in its entirety is the proper remedy.



37

interests in requiring photo ID do not justify disenfranchising the plaintiffs while this

litigation is pending. In this section, I address some remaining arguments made by the

defendants regarding the public interest and the balance of harms.

First, the defendants contend that it would be difficult for the state’s election-

administration officials to implement an affidavit remedy in time for the August and

November elections. As I explain in Part IV.C, I agree that it is not possible to

implement the affidavit remedy in time for the election on August 9, and therefore I will

not include that election within the scope of the injunction. However, the defendants

have not shown that it would be difficult to implement the remedy in time for the general

election on November 8. To implement the affidavit remedy, the defendants need only

direct elections officials to print a stack of affidavits in the form that I will specify, make

them available at the polls and to those who vote absentee, and accept properly

completed affidavits from voters in lieu of photo ID. As discussed above, any reason

the voter deems a reasonable impediment must be accepted, and thus election officials

will not have to receive training on what constitutes a reasonable impediment. Rather,

election officials must only make sure the voter signs his name and either checks a box

on the form or writes something in the space for identifying other reasonable

impediments. The municipal clerks of Wisconsin’s largest municipalities have submitted

declarations stating that it would be practical to accomplish these tasks in time for the

November election. Decl. of Neil Albrecht ¶¶ 14–16 (municipal clerk for City of

Milwaukee states that affidavit option could be implemented in time for November

election); Decl. of Maribeth Witzel-Behl ¶¶ 16–17 (municipal clerk for City of Madison

states that affidavit option could be implemented in time for November election).



38

One aspect of carrying out my order that will impose a more significant burden on

the defendants is informing voters of the affidavit option. As explained in more detail in

Part IV.D of this opinion, I will not grant the plaintiffs’ request for an order requiring the

defendants to send individualized notice of the affidavit option to voters who may lack

qualifying ID. However, the defendants will still have to revise their publicity materials

relating to the photo ID requirement to include information about the affidavit option and

will also have to train election officials to inform voters at the polls about this option.

This will require the election-administration defendants to exercise significant effort.

See Decl. of Michael Haas ¶¶ 30–42. Still, I find that it is practical to complete these

tasks in time for the November election. Id. ¶ 42 (indicating that it is likely possible to

implement the affidavit option in time for November election). Moreover, I find that,

under the balance of harms, requiring the defendants to put forth this effort prior to the

final resolution of the plaintiffs’ claims is justified by the plaintiffs’ strong likelihood of

success on the merits and the certainty that many of the plaintiffs would suffer

significant irreparable harm (i.e., disenfranchisement) if preliminary relief were not

granted.

The defendants also contend that preliminary relief is inappropriate because of

the possibility of voter confusion. That is, the defendants contend that if I grant a

preliminary injunction creating an affidavit option, and then the plaintiffs lose at trial and

the injunction is dissolved, some voters will mistakenly think that they may still vote by

presenting an affidavit rather than an ID. Voter confusion is of course a risk. However,

as I have found, the plaintiffs have a strong likelihood of success on the merits, and thus

the affidavit option is not likely to be dissolved after trial. Moreover, any confusion that

arises will likely only affect those voters who would be unable to vote without the



39

affidavit option. Those who already have IDs will use them whether or not the affidavit

option is available, as will those who can obtain ID with reasonable effort. Only those

who cannot obtain ID with reasonable effort will suffer if they erroneously believe that

the affidavit option is still available after trial. But disenfranchising those voters while

this litigation is pending would be worse than causing them to be confused after trial,

when they would likely be unable to vote anyway due to their inability to obtain ID with

reasonable effort. So again, the balance of harms favors preliminary relief.

Finally, the defendants contend that I should not grant preliminary relief because

they are unsure whether they have the power to implement an affidavit option. Defs.’

Br. at 23, ECF No. 285. The defendants point out that Wisconsin’s “municipal clerks,”

who are not defendants in this case, are the officials who have “charge and supervision”

of the state’s elections. Wis. Stat. § 7.15(1). The defendants then question whether

they have authority under state law to require these clerks to accept affidavits from

voters in lieu of photo ID.

Under Wisconsin election law, a “municipal clerk” is defined as “the city clerk,

town clerk, village clerk and the executive director of the city election commission and

their authorized representatives.” Wis. Stat. § 5.02(10). There are approximately 1,900

such clerks in Wisconsin. See Trial Testimony of Kevin Kennedy at 888; Declaration of

Michael Haas ¶ 12, ECF No. 286. Obviously, it would be impractical to join all of these

clerks as defendants, and it is not necessary to do so. The defendants in this case

include the Governor of the State of Wisconsin and the members of the state’s Elections

Commission, which, until recently, was known as the Government Accountability Board.



40

See 2015 Wis. Act 118; Haas Decl. ¶ 1 n.1.13 These defendants possess authority

under Wisconsin law to require municipal clerks to implement the affidavit remedy.

First, the governor, as the chief executive of the state, has the power to require

municipal clerks, who are creatures of state law, to implement a court order issued

under the U.S. Constitution and that concerns the state’s election laws. Indeed, the

defendants submit no evidence and develop no legal argument indicating that the

governor lacks this power. Rather, the defendants merely question whether the

Elections Commission has this power. See Defs.’ Br. at 23; see generally Haas Decl.

But the Elections Commission clearly has this power as well. State law vests the

commission with “the responsibility for the administration of [the Wisconsin Statutes

governing elections] and other laws relating to elections.” Wis. Stat. § 5.05(1). Carrying

out a federal court’s order concerning the state’s election procedures would qualify as

administering the state’s election laws and “other laws relating to elections” (which

includes federal laws relating to elections). Municipal clerks, who lack the power to

administer election laws but only have the power to conduct elections in accordance

with those laws, see Wis. Stat. § 7.15(1), could not disobey the commission’s directive

to make affidavits available to voters and to accept them in lieu of photo ID. The

administrator of the Elections Commission points out that the commission might not

have authority under state law to pass a formal administrative rule implementing the

affidavit requirement. Haas Decl. ¶¶ 15–17. However, such a rule is unnecessary.

Although the commission has rulemaking authority, see Wis. Stat. § 5.05(1)(f), that is

13 The plaintiffs have not named the members of the new Elections Commission as defendants. However, because those members are successors to the members of the Government Accountability Board, who have been named as defendants in their official capacities, they are automatically substituted as parties. See Fed. R. Civ. P. 25(d).



41

just one manifestation of its general authority to administer election laws. Pursuant to

its general authority, the commission may direct municipal clerks to implement a court

order pertaining to the state’s election procedures and federal law.

I also note that the defendants had no difficulty implementing the injunctive relief

that I granted in 2014. If the defendants were able to direct municipal clerks to stop

requiring voters to present photo ID at the polls in 2014, then they will be able to direct

municipal clerks to allow voters to cast a ballot by presenting an affidavit in lieu of photo

ID in 2016. Accordingly, I reject the defendants’ suggestion that uncertainty over

whether they have power to require municipal clerks to implement an affidavit remedy is

a reason not to grant that remedy in the first place.

C.

In this section, I explain why I will not require the defendants to implement the

affidavit option for the August 9 primary. First, the plaintiffs have not argued that it

would be practical to implement the option in time for this election, which is only a few

weeks away. Second, the Administrator of the Elections Commission, who would have

primary responsibility for implementing the affidavit option, states that it is not possible

to implement that remedy by the date of the election. Haas Decl. ¶¶ 8–12, 41. Aside

from the sheer administrative difficulty of implementing the affidavit option by August 9,

there is the fact that, as a practical matter, the August election has already begun:

municipal clerks began mailing absentee ballots to voters on June 10, 2016, and the

deadline for mailing absentee ballots was June 23, 2016. Haas Decl. ¶¶ 9–10.

Moreover, in-person early voting begins on July 25, 2016. See

http://www.gab.wi.gov/voters/absentee (viewed July 19, 2016). Given these facts, the

possibility of disrupting the administration of the August election is too great to require



http://www.gab.wi.gov/voters/absentee

42

the defendants to change the rules applicable to that election now. I realize that this will

cause some class members irreparable harm because they will be unable to vote in the

August primary, but under the balance of harms, the harm to the defendants and to the

public that would be caused by requiring implementation by August 9 outweighs the

harm to these class members. Accordingly, I will order the defendants to implement the

affidavit option in time for the November general election.

D.

Next, I address the plaintiffs’ request that the preliminary injunction require the

defendants to “send an individualized mailing to all registered voters who do not appear

in the DMV database as having acceptable photo ID, informing them about the voter ID

law and the affidavit option.” ECF No. 278-1 at 2. I am not convinced that

individualized notice to voters is required to prevent irreparable harm. The Elections

Commission is already planning an advertising campaign relating to the photo ID

requirement, Haas Decl. ¶¶ 30–35, and that campaign will now have to include

information about the affidavit option. The commission will also have to train elections

officials to inform voters about the affidavit option. While it might also be useful to send

individualized notice of the affidavit option to voters who might need it, I do not believe

that this step is necessary. At this point, I will leave it to the Elections Commission to

decide how best to publicize the affidavit option. Accordingly, the plaintiffs’ request for

an order requiring individualized notice will be denied.

E.

Finally, I must specify the form of the affidavit and other details concerning the

implementation of the affidavit option. I have modeled the form of the affidavit on North



43

Carolina’s “reasonable impediment declaration.” See Young Decl. Ex. 2, ECF No. 280-

2. The affidavit must contain the following language:

I declare under penalty of perjury that I am the individual identified below, and that I have been unable to obtain acceptable photo identification with reasonable effort. This is due to the following reason(s):

__ Lack of transportation

__ Lack of birth certificate or other documents needed to obtain photo ID

__ Work schedule

__ Disability or illness

__ Family responsibilities

__ Other (please identify): ______________________________________

The affidavit shall have a space for the voter to print his or her name, a space for the

voter’s signature, and a space for a date. The affidavit does not have to be notarized or

sworn before any officer. The Elections Commission may include spaces on the

affidavit that are to be completed by election officials for administrative purposes, such

as a space for identifying the polling location at which the affidavit was received.

The defendants shall ensure that copies of the affidavit are available at the polls

and also to those who vote by absentee ballot. Any voter who completes and submits

an affidavit shall receive a regular ballot, even if that voter does not show acceptable

photo identification. No person may challenge the sufficiency of the reason given by the

voter for failing to obtain ID. Finally, the defendants shall include the affidavit option in

any publicity materials related to the photo ID requirement, shall train poll workers to

inform voters who arrive at the polls without qualifying ID about the affidavit option, and

shall otherwise make reasonable efforts to ensure that voters are made aware of the

affidavit option.



44

V.

For the reasons stated, IT IS ORDERED that the plaintiffs’ motion for a

preliminary injunction (ECF No. 278) is GRANTED. All defendants and their officers,

agents, servants, employees, and attorneys, and all those acting in concert or

participation with them, or having actual or implicit knowledge of this order by personal

service or otherwise, are directed to implement the affidavit option, in the manner

specified in this opinion, in time for the general election on November 8, 2016, and all

elections that occur after that date, while this preliminary injunction is in force.

IT IS FURTHER ORDERED that the plaintiffs’ motion to file a supplemental

complaint (ECF No. 278) is GRANTED.

IT IS FURTHER ORDERED that the plaintiffs’ motion for class certification (ECF

No. 278) is GRANTED.

IT IS FURTHER ORDERED that the plaintiffs’ claims involving veterans’ ID cards

are DISMISSED as MOOT.

IT IS FURTHER ORDERED that the defendants’ motion to file confidential court

records under seal (ECF No. 289) is GRANTED.

IT IS FURTHER ORDERED that the defendants’ motion to strike (ECF No. 290)

is DENIED.

Dated at Milwaukee, Wisconsin, this 19th day of July, 2016.

s/Lynn Adelman LYNN ADELMAN District Judge



IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

ONE WISCONSIN INSTITUTE, INC.,

CITIZEN ACTION OF WISCONSIN EDUCATION

FUND, INC., RENEE M. GAGNER,

ANITA JOHNSON, CODY R. NELSON,

JENNIFER S. TASSE, SCOTT T. TRINDL,

MICHAEL R. WILDER, JOHNNY M. RANDLE,

DAVID WALKER, DAVID APONTE, and

CASSANDRA M. SILAS,

Plaintiffs,

v.

MARK L. THOMSEN, ANN S. JACOBS,

BEVERLY R. GILL, JULIE M. GLANCEY,

STEVE KING, DON M. MILLS,

MICHAEL HAAS, MARK GOTTLIEB, and

KRISTINA BOARDMAN,

all in their official capacities,

Defendants.

FINDINGS OF FACT &

CONCLUSIONS OF LAW

15-cv-324-jdp

Mrs. Smith has lived in Milwaukee since 2003.1 She was born at home, in Missouri,

in 1916. In her long life she has survived two husbands, and she has left many of the typical

traces of her life in public records. But, like many older African Americans born in the South,

she does not have a birth certificate or other documents that would definitively prove her

date and place of birth. After Wisconsin’s voter ID law took effect, she needed a photo ID to

vote. So she entered the ID Petition Process (IDPP) at the Wisconsin Department of Motor

Vehicles (DMV) to get a Wisconsin ID. DMV employees were able to find Mrs. Smith’s

record in the 1930 census, but despite their sustained efforts, they could not link Mrs. Smith

1 “Mrs. Smith” is not her real name, which I withhold to protect her privacy. The record of

her interaction with the DMV is PX421.

Case: 3:15-cv-00324-jdp Document #: 234 Filed: 07/29/16 Page 1 of 119Case: 16-3003 Document: 16-5 Filed: 08/01/2016 Pages: 119

2

to a Missouri birth record, so they did not issue her a Wisconsin ID. She is unquestionably a

qualified Wisconsin elector, and yet she could not vote in 2016. Because she was born in the

South, barely 50 years after slavery, her story is particularly compelling. But it is not unique:

Mrs. Smith is one of about 100 qualified electors who tried to but could not obtain a

Wisconsin ID for the April 2016 primary.

Wisconsin’s voter ID law is part of 2011 Wis. Act 23, enacted the year after

Wisconsin Republicans won the governorship and majorities in both houses of the legislature.

Act 23 was the first of eight laws enacted over the next four years that transformed

Wisconsin’s election system. Plaintiffs in this case challenge the voter ID law, the IDPP, and

more than a dozen other provisions in these new laws, none of which make voting easier for

anyone. Plaintiffs contend that the new voting requirements and restrictions were driven by

partisan objectives rather than by any legitimate concern for election integrity, that these

laws unduly burden the right to vote, and that they discriminate against minorities,

Democrats, and the young. Plaintiffs contend that the new election laws violate the First,

Fourteenth, Fifteenth, and Twenty-Sixth Amendments to the Constitution, and § 2 of the

Voting Rights Act.

This case was tried to the court in May. Over nine extended days, the court heard the

testimony of 45 live witnesses, including six experts, with additional witnesses presented by

deposition. The parties submitted lengthy post-trial briefs, and the court heard closing

arguments on June 30. The opinion that follows is the court’s verdict. It sets out in detail the

facts that the court finds and the legal conclusions that the court draws from those facts.

Because of the large number of claims asserted in this case, and the volume of evidence

submitted, the opinion is necessarily long, and few readers will endure to the end. But I will


3

try, in a few pages of introduction, to explain succinctly the court’s essential holdings and the

reasons for them.

I start with a word about my role. It is not the job of a federal judge to decide whether

a state’s laws are wise, and I certainly do not have free-floating authority to rewrite

Wisconsin’s election laws. My task here is the more limited one of pointing out where

Wisconsin’s election laws cross constitutional boundaries. The Constitution leaves important

decisions about election administration to the states. But election laws inevitably bear on the

fundamental right to vote, so constitutional principles come into play. The standards that I

must apply to plaintiffs’ claims require me to examine carefully the purposes behind these

laws, and sometimes to draw inferences about the motives of the lawmakers who enacted

them. I conclude that some of these laws cannot stand.

Wisconsin’s voter ID law has been challenged as unconstitutional before, in both

federal and state court. In the federal case, Frank v. Walker, the Seventh Circuit held that

Wisconsin’s voter ID law is similar, in all the ways that matter, to Indiana’s voter ID law,

which the United States Supreme Court upheld in Crawford v. Marion County Election Board.

The important takeaways from Frank and Crawford are: (1) voter ID laws protect the integrity

of elections and thereby engender confidence in the electoral process; (2) the vast majority of

citizens have qualifying photo IDs, or could get one with reasonable effort; and (3) even if

some people would have trouble getting an ID, and even if those people tend to be

minorities, voter ID laws are not facially unconstitutional. I am bound to follow Frank and

Crawford, so plaintiffs’ effort to get me to toss out the whole voter ID law fails.

If it were within my purview, I would reevaluate Frank and Crawford, but not because I

would necessarily reach a different conclusion. A well-conceived and carefully implemented


4

voter ID law can protect the integrity of elections without unduly impeding participation in

elections. But the rationale of these cases should be reexamined. The evidence in this case

casts doubt on the notion that voter ID laws foster integrity and confidence. The Wisconsin

experience demonstrates that a preoccupation with mostly phantom election fraud leads to

real incidents of disenfranchisement, which undermine rather than enhance confidence in

elections, particularly in minority communities. To put it bluntly, Wisconsin’s strict version

of voter ID law is a cure worse than the disease. But I must follow Frank and Crawford and

reject plaintiffs’ facial challenge to the law as a whole.

The most pointed problem with Wisconsin’s voter ID law is that it lacks a functioning

safety net for qualified electors who cannot get a voter ID with reasonable effort. The IDPP is

supposed to be this safety net, but as Mrs. Smith’s story illustrates, the IDPP is pretty much

a disaster. It disenfranchised about 100 qualified electors—the vast majority of whom were

African American or Latino—who should have been given IDs to vote in the April 2016

primary. But the problem is deeper than that: even voters who succeed in the IDPP manage

to get an ID only after surmounting severe burdens. If the petitioner lacks a birth certificate

and does not have one of the usual alternatives to a birth certificate, on average, it takes five

communications with the DMV after the initial application to get an ID. I conclude that the

IDPP is unconstitutional and needs to be reformed or replaced. Because time is short with

the fall elections approaching, I will issue an injunction targeted to the constitutional

deficiencies that I identify.

Judge Lynn Adelman for the U.S. District Court for the Eastern District of Wisconsin

has also concluded that the IDPP is likely unconstitutional, and he has issued a preliminary

injunction requiring Wisconsin to institute an affidavit procedure. This procedure would


5

allow an elector without an ID to vote by signing an affidavit stating that he or she is a

qualified elector but could not get a photo ID. Judge Adelman’s injunction provides one type

of safety net. But plaintiffs have not asked me to impose that solution, and I will not. The

state has already issued an emergency rule under which those who are in the IDPP will get

receipts valid for voting. Although that is not a complete or permanent solution, it blunts the

harshest effects of the IDPP. I will also order the state to publicize that anyone who enters

the IDPP will promptly get a receipt valid for voting. To address this problem over the longer

term, I will order the state to reform the IDPP to meet certain standards, leaving it to the

state to determine how best to cure its constitutional problems. I take this approach because

it respects the state’s decision to have a strict voter ID law rather than an affidavit system.

But Wisconsin may adopt a strict voter ID system only if that system has a well-functioning

safety net, as both the Seventh Circuit and the Wisconsin Supreme Court have held.

The heart of the opinion considers whether each of the other challenged provisions

unduly burdens the right to vote, in violation of the First and Fourteenth Amendments. This

analysis proceeds under what is known as the Anderson-Burdick framework, which sets out a

three-step analysis. First, I determine the extent of the burden imposed by the challenged

provision. Second, I evaluate the interest that the state offers to justify that burden. Third, I

judge whether the interest justifies the burden. Certain of Wisconsin’s election laws fail

Anderson-Burdick review. For reasons explained in the opinion, I conclude that the state may

not enforce:

most of the state-imposed limitations on the time and location for in-

person absentee voting (although the state may set a uniform rule

disallowing in-person absentee voting on the Monday before elections);

the requirement that “dorm lists” to be used as proof of residence include

citizenship information;


6

the 28-day durational residency requirement;

the prohibition on distributing absentee ballots by fax or email; and

the bar on using expired but otherwise qualifying student IDs.

The purported justifications for these laws do not justify the burdens they impose.

Plaintiffs also contend that the challenged laws intentionally discriminate on the basis

of race and age. This is a serious charge against Wisconsin public officials. I reject most of it,

applying the framework set out by the Supreme Court in Village of Arlington Heights v.

Metropolitan Housing Development Corporation. But applying that same framework, I find that

2013 Wis. Act 146, restricting hours for in-person absentee voting, intentionally

discriminates on the basis of race. I reach this conclusion because I am persuaded that this

law was specifically targeted to curtail voting in Milwaukee without any other legitimate

purpose. The legislature’s immediate goal was to achieve a partisan objective, but the means

of achieving that objective was to suppress the reliably Democratic vote of Milwaukee’s

African Americans. Thus, I conclude that the limits on in-person absentee voting imposed by

Act 146 fail under the Fifteenth Amendment, as well as under the Anderson-Burdick analysis.

In sum, Wisconsin has the authority to regulate its elections to preserve their

integrity, and a voter ID requirement can be part of a well-conceived election system. But, as

explained in the pages that follow, parts of Wisconsin’s election regime fail to comply with

the constitutional requirement that its elections remain fair and equally open to all qualified

electors.

One last point: I do not intend to disrupt the August 6, 2016 election. My decision

and the injunction will have no effect on that election.


7

Contents

Facts .......................................................................................................................................... 8

A. The challenged provisions ............................................................................................... 9

B. Parties and procedural history ...................................................................................... 11

Analysis ................................................................................................................................... 12

A. Standing ........................................................................................................................ 13

B. Facial challenges to Wisconsin’s voter ID law .............................................................. 18

1. Facial relief because of intentional discrimination ...................................................... 22

2. Facial relief because the IDPP has failed ..................................................................... 23

C. Intentional discrimination ............................................................................................ 29

1. Race discrimination ...................................................................................................... 29

2. Age discrimination ........................................................................................................ 45

D. Partisan fencing claim ................................................................................................... 49

E. First and Fourteenth Amendment claims for undue burdens on the right to vote ....... 53

1. Limiting in-person absentee voting .............................................................................. 55

2. Requiring documentary proof of residence and eliminating corroboration............... 63

3. Changing how students can use “dorm lists” to register ............................................ 67

4. Eliminating statewide SRDs and eliminating SRDs and registration locations

at high schools ............................................................................................................... 69

5. Preempting Madison’s landlord ordinance .................................................................. 72

6. Increasing the durational residency requirement ........................................................ 74

7. Establishing a zone for election observers ................................................................... 79

8. Eliminating straight-ticket voting ................................................................................ 82

9. Prohibiting clerks from sending absentee ballots by fax or email .............................. 84

10. Limiting when clerks can return absentee ballots to voters........................................ 87

11. The IDPP ....................................................................................................................... 89

12. Cumulative effect .......................................................................................................... 91

F. Voting Rights Act claims ............................................................................................... 93

1. Disparate burdens ......................................................................................................... 94

2. Caused by or linked to social and historical conditions ........................................... 105

G. Fourteenth Amendment claims for disparate treatment of voters .............................. 111

Conclusion and Remedies ..................................................................................................... 115

Order ..................................................................................................................................... 118


8

FACTS

Although extensive evidence has been presented in this case, material factual disputes

few and quite circumscribed. The parties sharply dispute plaintiffs’ allegations that any of the

challenged laws were motivated by improper purposes, particularly intentional race and age

discrimination. The parties also dispute the effect of the challenged laws on voter turnout,

and whether these effects are felt more heavily by minorities and other groups of voters. But

much is undisputed.

The parties have stipulated to a set of background facts, most of which describe the

challenged provisions and how they operate. See Dkt. 184. The court adopts these facts and

recounts them below, along with other facts about Wisconsin’s election system before the

challenged provisions went into effect. The court also adopts the facts found by Judge

Adelman concerning the history and operation of the IDPP, which he based substantially on

the evidence presented in this case. Frank v. Walker, No. 11-cv-1128, 2016 WL 3948068

(E.D. Wis. July 19, 2016). The court will incorporate the rest of its factual findings in the

analysis section of this opinion.

Historically, Wisconsin has had a well-respected election system, and the state has

consistently had turnout rates among the highest in the country. Presidential elections were

close in Wisconsin: the 2000 and 2004 elections were decided by less than one-half of one

percentage point. In 2008, however, President Obama won Wisconsin by almost 14

percentage points. Two years later, Republicans took control of both houses of the state

legislature, and voters elected a Republican governor. Since then, Wisconsin has

implemented a series of election reforms. These laws covered almost every aspect of voting:

registration, absentee voting, photo identification, and election-day mechanics.


9

A. The challenged provisions

On May 25, 2011, Wisconsin enacted 2011 Wis. Act 23. That legislation made the

following changes to Wisconsin election law:

It imposed a voter ID requirement.

It reduced the window of time during which municipalities could offer in-

person absentee voting from a period of as much as 30 days that ended on

the day before election day to a period of 12 days that ended on the Friday

before election day.

It eliminated “corroboration” as a means of proving residence for the

purpose of registering to vote.2

It mandated that any “dorm list” provided to a municipal clerk to be used

in connection with college IDs to prove residence for the purpose of

registering to vote include a certification that the students on the dorm list

were United States citizens.

It increased the in-state durational residency requirement for voting for

offices other than president and vice president from 10 days to 28 days

before an election and required individuals who moved within Wisconsin

later than 28 days before an election to vote in their previous wards or

election districts.

It eliminated straight-ticket voting on official ballots.

It eliminated the authority of the Government Accountability Board (GAB)

to appoint special registration deputies (SRDs) who could register voters on

a statewide basis.

On November 16, 2011, Wisconsin enacted 2011 Wis. Act 75, which prohibited

municipal clerks from faxing or emailing absentee ballots to absentee voters other than

overseas and military voters.

2 Corroboration allows a registered voter to sign a statement verifying the residence of

another person, which allows that person to register to vote.


10

On April 6, 2012, Wisconsin enacted 2011 Wis. Act 227, which prohibited municipal

clerks from returning an absentee ballot to an elector unless the ballot was spoiled or

damaged, had an improperly completed certificate, or had no certificate.

Also on April 6, 2012, Wisconsin enacted 2011 Wis. Act 240, which eliminated the

requirements that SRDs be appointed at public high schools; that, in certain circumstances,

SRDs be appointed at or sent to private high schools and tribal schools; and that voter-

registration applications from enrolled students and members of a high school’s staff be

accepted at that high school.

In August 2012, the GAB directed election officials to accept electronic versions of

documents that could be used to prove residence for the purpose of registering to vote.

On March 20, 2013, Senate Bill 91 was introduced in the Wisconsin State Senate.

This bill would have permitted municipalities to open multiple in-person absentee voting

locations (under existing law, municipalities were limited to only one location). The bill failed

to pass.

On December 12, 2013, Wisconsin enacted 2013 Wis. Act 76. This legislation had

the effect of overturning a city ordinance in Madison that required landlords to provide

voter-registration forms to new tenants.

On March 27, 2014, Wisconsin enacted 2013 Wis. Act 146, which reduced the

window during which municipalities could offer in-person absentee voting. This law

eliminated the option of offering in-person absentee voting on weekends and on weekdays

before 8 a.m. or after 7 p.m.

On April 2, 2014, Wisconsin enacted 2013 Wis. Act 177, which required that

observation areas at polling places be placed between three and eight feet from the location


11

where voters signed in and obtained their ballots and from the location where voters

registered to vote.

Also on April 2, 2014, Wisconsin enacted 2013 Wis. Act 182, which required all

voters, other than statutory overseas and military voters, to provide documentary proof of

residence when registering to vote. Before the passage of this legislation, the requirement that

a voter provide documentary proof of residence when registering to vote applied only to those

who registered after the third Wednesday preceding (i.e., 20 days before) an election.

B. Parties and procedural history

The plaintiffs in this case include two organizations and several individuals. One

Wisconsin Institute, Inc. is a nonprofit corporation with a mission “to advance progressive

values, ideas, and policies through strategic research and sophisticated communications.”

Dkt. 141, ¶ 4. Citizen Action of Wisconsin Education Fund, Inc. is also a nonprofit

corporation focused on pursuing social and economic justice. The individual plaintiffs are

Renee Gagner, Anita Johnson, Cody Nelson, Jennifer Tasse, Scott Trindl, Michael Wilder,

Johnny Randle, David Walker, David Aponte, and Cassandra Silas. They all allege that the

challenged provisions injure their rights to vote, register to vote, register others to vote, or

vote for Democratic candidates.

The initial defendants in this case were the members of the GAB and two of its

officers. Plaintiffs have added and removed some defendants along the way, and the list now

includes: Mark Thomsen, Ann Jacobs, Beverly Gill, Julie Glancey, Steve King, and Don Mills,

the members of the Wisconsin Elections Commission; Michael Haas, the administrator of the

Wisconsin Elections Commission; Mark Gottlieb, the secretary of the Wisconsin Department


12

of Transportation (DOT); and Kristina Boardman, the administrator of the DMV. Plaintiffs

have sued all defendants in their official capacities.

Plaintiffs filed this suit in May 2015, alleging that the challenged provisions were

unconstitutional, violated the Voting Rights Act, and resulted from intentional

discrimination by the Wisconsin legislature. The court granted defendants’ motion to dismiss

plaintiffs’ challenge to the voter ID law, as well as some of their Equal Protection challenges

to other provisions. Dkt. 66. But the court later permitted plaintiffs to partially reinstate

their claims regarding the voter ID law, based on evidence that defendants produced during

discovery. Dkt. 139. A few months later, the court substantially denied defendants’ motion

for summary judgment, Dkt. 185, and the case proceeded to trial.

ANALYSIS

The court will structure its analysis as follows:

First, standing. The court concludes that plaintiffs have standing to challenge each of

the provisions at issue, and that the corporation plaintiffs can pursue claims under the Voting

Rights Act.

Second, plaintiffs’ facial challenges to Wisconsin’s voter ID law. This law has already

been upheld after extensive litigation in the federal courts. The court concludes that

invalidating the entire voter ID law would not be appropriate in this case.

Third, plaintiffs’ claims of intentional discrimination. Plaintiffs have proven by a

preponderance of the evidence that the legislature passed the provisions limiting the hours

for in-person absentee voting at least partially with the intent to discriminate against voters

on the basis of race. But the court concludes that the remaining provisions do not violate the


13

Fifteenth Amendment. The court also concludes that none of the challenged provisions

violate the Twenty-Sixth Amendment.

Fourth, plaintiffs’ “partisan fencing” claims. Although plaintiffs allege a separate claim

for partisan fencing, the court concludes that their constitutional claim provides an adequate

framework for analyzing these allegations.

Fifth, plaintiffs’ First and Fourteenth Amendment claims for unduly burdening the

right to vote. The court concludes that some, but not all, of the challenged provisions are

unconstitutional because the state’s justifications for them do not outweigh the burdens that

they impose.

Sixth, plaintiffs’ Voting Rights Act claims. The court concludes that one of the

challenged provisions violates the Voting Rights Act.

Seventh, plaintiffs’ Fourteenth Amendment Equal Protection claim. The court

concludes that defendants have failed to articulate a rational basis for the state’s decision to

exclude expired student IDs as acceptable forms of voter ID.

A. Standing

The court begins with standing. At summary judgment, the court rejected defendants’

justiciability arguments, including arguments related to standing. Defendants now renew

some of these arguments, contending that no plaintiff has standing to challenge the voter ID

law. Defendants also contend that plaintiffs lack standing to challenge almost all of the other

provisions that are at issue. For plaintiffs’ Voting Rights Act claims, defendants contend that

no plaintiff qualifies as an “aggrieved person” able to pursue claims under the act.

“[T]he ‘irreducible constitutional minimum’ of standing consists of three elements.

The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the


14

challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable

judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citation omitted), as

revised, (May 24, 2016). Defendants contend that plaintiffs have not proven the first of these

elements: a cognizable injury in fact. As the parties invoking this court’s jurisdiction,

plaintiffs bear the burden of establishing that they have standing. Id. But only one plaintiff

needs to have standing to challenge a given provision because the complaint seeks only

injunctive relief. Crawford v. Marion Cty. Election Bd., 472 F.3d 949, 951 (7th Cir. 2007), aff’d,

553 U.S. 181 (2008).

Of the 10 individual plaintiffs in this case, 6 received qualifying IDs from the DMV

and 4 received receipts through the IDPP. DX022; PX445. Defendants want to stop there,

arguing that none of the individual plaintiffs are harmed by the voter ID law because they all

currently have qualifying IDs. But there are several problems with this argument. The most

obvious problem is that under the DMV’s current rules, the receipts that four of the

individual plaintiffs received will expire after two automatic renewals, which means 180 days

after issuance. Although these plaintiffs will be able to vote in the upcoming August and

November elections, there is essentially no plan in place for them after they use their two

renewals. Without a valid ID, these plaintiffs will not be able to vote. Thus, they have

“suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and

‘actual or imminent, not conjectural or hypothetical.’” Spokeo, 136 S. Ct. at 1548.

Even setting aside the plaintiffs who will lack acceptable IDs and be unable to vote

after the November 2016 election, the voter ID law also injures the remaining individual

plaintiffs. At summary judgment, the court concluded that having to present an ID at the polls

was a sufficient injury for purposes of conferring Article III standing. Dkt. 185, at 10 (citing


15

Frank v. Walker, 17 F. Supp. 3d 837, 866 (E.D. Wis.), rev’d, 768 F.3d 744 (7th Cir. 2014),

cert. denied, 135 S. Ct. 1551 (2015), and Common Cause/Georgia v. Billups, 554 F.3d 1340,

1351-52 (11th Cir. 2009)). The court also concluded that the plaintiffs who have IDs will

have to renew them or acquire other forms of identification once their current IDs expire,

which would be another injury that confers standing. Id.

Defendants do not substantively engage these issues; they simply assert that “[t]his

Court was wrong when it held that voters who have a qualifying ID have Article III standing

to challenge the voter photo ID law.” Dkt. 206, at 13. If defendants want to preserve the

issue for appeal, then they have done so. But they have not identified reasons for the court to

depart from its earlier conclusion that plaintiffs have standing to challenge the voter ID law.

As for the other provisions at issue, the corporation plaintiffs have standing to

challenge these laws. “An organization may establish an injury to itself sufficient to support

standing to challenge a statute or policy by showing that the statute or policy frustrates the

organization’s goals and necessitates the expenditure of resources in ways that would not

otherwise be required.” 15 James Wm. Moore et al., Moore’s Federal Practice § 101.60[1][f]

(3d ed. 2015) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)); see also

Crawford, 472 F.3d at 951 (“[T]he new law injures the Democratic Party by compelling the

party to devote resources to getting to the polls those of its supporters who would otherwise

be discouraged by the new law from bothering to vote.”). To establish standing, an

organization must point “to a ‘concrete and demonstrable injury to its activities,’ not ‘simply

a setback to the organization’s abstract social interests.’” Spann v. Colonial Vill., Inc., 899 F.2d

24, 27 (D.C. Cir. 1990) (alterations omitted) (quoting Havens Realty Corp., 455 U.S. at 379).


16

At trial, plaintiffs adduced evidence that One Wisconsin and Citizen Action each

devoted money, staff time, and other resources away from their other priorities to educate

voters about the new laws. For example, Analiese Eicher, One Wisconsin’s program and

development director, testified that she researched all but one of the challenged provisions.

Tr. 5p, at 145:12-17.3 The purpose of this research was to allow One Wisconsin to educate

its supporters, its partners, and the press. Id. at 145:18-25. Eicher also testified that had she

not been researching the legislation, she would have been working on other programs or

initiatives for One Wisconsin. Id. at 147:4-16. Eicher would have been advocating for other

voting-related changes, such as automatic voter registration, online registration, and felony

reenfranchisement. Id. at 147:18-24. On an organizational level, One Wisconsin developed a

website to help voters navigate the registration process in an effort to remediate some of the

confusion surrounding the challenged provisions. Id. at 148:7-9, 149:3-8.

Likewise, Anita Johnson, an individual plaintiff and one of Citizen Action’s

community organizers, testified that her job responsibilities have “ballooned” over the last

few years as the laws have changed. Tr. 1p, at 4:16-5:1. Her presentations to community

groups now take longer, she has been able to register fewer people, and she has stopped

working on other issues for Citizen Action to focus exclusively on voting rights. Id. at 5:15-

16, 7:20-8:5, 11:7-25, 32:24-33:11.

Based on this evidence, the court finds that the corporation plaintiffs are not simply

redirecting their resources to litigation, which would not be an injury-in-fact that would

confer standing. See N.A.A.C.P. v. City of Kyle, 626 F.3d 233, 238 (5th Cir. 2010). Instead,

3 Citations to trial transcripts are by day, session, page, and line. Thus, “Tr. 5p, at 145:12-

17” refers to the transcript from the fifth day of trial, afternoon session, page 145, lines 12

through 17.


17

both corporations are devoting resources away from other tasks and toward researching, or

educating voters about, the challenged provisions. These expenditures are injuries that give

both corporations standing to challenge the provisions at issue in this case because the

corporations are counteracting what they perceive to be unlawful practices. Cf. Fla. State

Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1166 (11th Cir. 2008).

Defendants’ final justiciability challenge relates to the Voting Rights Act and whether

any plaintiff qualifies as an “aggrieved person” for purposes of bringing suit pursuant to 52

U.S.C. § 10302. The court rejected this challenge at summary judgment, adopting the

Eastern District of Wisconsin’s reasoning in Frank and concluding that the corporation

plaintiffs could assert claims under the Voting Rights Act. Dkt. 185, at 14-15. Once again,

defendants do not substantively confront this analysis. See Dkt. 206, at 15. In fact, the

authority on which defendants rely—Roberts v. Wamser, 883 F.2d 617 (8th Cir. 1989)—does

not actually support their assertion that corporations cannot file suit under the Voting Rights

Act. Roberts involved an unsuccessful political candidate whose alleged injury was the loss of

votes that he would have received but for the challenged voting practice. 883 F.2d at 621.

The Eighth Circuit held “that an unsuccessful candidate attempting to challenge election

results does not have standing under the Voting Rights Act.” Id. But the Eighth Circuit also

noted that the candidate was not suing on behalf of others who were unable to protect their

own rights, id., which is what the corporation plaintiffs are doing in this case. The court will

adhere to its earlier conclusion that One Wisconsin and Citizen Action can pursue claims

under the Voting Rights Act.


18

B. Facial challenges to Wisconsin’s voter ID law

Wisconsin’s voter ID law has been through the federal courts before. The Seventh

Circuit upheld the law in Frank v. Walker, 768 F.3d 744 (7th Cir. 2014), cert. denied, 135 S.

Ct. 1551 (2015), relying on the Supreme Court’s decision in Crawford v. Marion County

Election Board, 553 U.S. 181 (2008). Thus, this court will begin its consideration of the merits

by addressing plaintiffs’ contention that despite the holdings in Crawford and Frank,

Wisconsin’s voter ID law is facially unconstitutional and violates the Voting Rights Act.

Crawford considered a facial challenge to Indiana’s voter ID law. 553 U.S. at 185. The

critical holding in Crawford is that requiring a voter to show a photo ID before voting serves

the important governmental interest in ensuring the integrity of elections, particularly by

preventing in-person voting fraud, thereby engendering confidence in elections. Id. at 200-03.

Crawford also held that securing an Indiana photo ID, which required assembling certain vital

documents and going to the DMV to apply for the ID, imposed only modest burdens that

were not much greater than the effort ordinarily required to register and vote. Id. at 198.

Crawford upheld Indiana’s voter ID law against a facial challenge even though the burdens of

the law fell somewhat more heavily on minority voters, and even though some individual

voters might not be able to get a photo ID without surmounting more severe burdens.

In Frank, the Seventh Circuit considered a facial challenge to Wisconsin’s voter ID

law. 768 F.3d at 745. The district court had determined that there were factual distinctions

between Wisconsin’s law and Indiana’s law: most significantly, that there were many more

voters who did not have a qualifying photo ID in Wisconsin, and that those voters tended to

be minorities. The Seventh Circuit expressed skepticism about the evidence of how many

voters lacked ID, but concluded that, in any case, those distinctions were not material to the


19

facial challenge. The Seventh Circuit held that Wisconsin’s voter ID law was not materially

different from the Indiana law at issue in Crawford, and that under Crawford, Wisconsin’s

voter ID law was facially constitutional. Id.

It is hard to deny that a state and its citizens have a truly compelling interest in

maintaining election integrity. As the evidence in this case proved once again, voter fraud is

rare but not non-existent. The court credits the evidence of plaintiffs’ expert on the subject,

Dr. Lorraine C. Minnite, who testified and filed two expert reports. PX039; PX044. But the

more compelling evidence comes from Milwaukee County, the one county in the state that

has tried to systematically discover and track violations of election law. The county has an

assistant district attorney devoted full-time to the job, Bruce Landgraf. Based on Landgraf’s

testimony, and on other evidence discussed below, the court finds that impersonation fraud—

the type of fraud that voter ID is designed to prevent—is extremely rare. In most elections

there are a very few incidents in which impersonation fraud cannot be ruled out. But as

Crawford and Frank held, despite rarity with which election fraud occurs, it is nevertheless

reasonable for states to take steps to prevent it.

Any system that requires voters to get a credential will necessarily impose a burden on

them. But if the burden is a modest one, and if the credential meaningfully fosters integrity,

then the constitution is satisfied. Under Crawford and Frank, collecting the necessary records

and making a trip to the DMV to get an ID is a modest burden in light of the state interest

that it serves. Those cases probably reflected an unduly rosy view of DMV field offices, but

the evidence in this case confirms, yet again, that the vast majority of Wisconsin citizens

already have the necessary ID. And most citizens who do not have an ID can get one with

relative ease.


20

This court is, of course, bound to follow Crawford and Frank, which defendants

contend doom plaintiffs’ facial challenge to Wisconsin’s voter ID law. Defendants are correct.

But Crawford and Frank deserve reappraisal. The court is skeptical that voter ID laws

engender confidence in elections, which is one of the important governmental purposes that

courts have used to sustain the constitutionality of those laws.

The evidence in this case showed that portions of Wisconsin’s population, especially

those who live in minority communities, perceive voter ID laws as a means of suppressing

voters. This means that they undermine rather than enhance confidence in our electoral

system. Good national research suggests that voter ID laws suppress turnout, and that they

have a small, but demonstrable, disparate effect on minority groups. See PX072. At trial,

testimony of African American community leaders confirmed that voter ID laws engender

acute resentment in minority communities. See, e.g., Tr. 1p, at 131:21-24. And some of the

Wisconsin legislators who supported voter ID laws believed that they would have partisan

effects. Their willingness to publically tout the partisan impact of those laws deepens the

resentment and undermines belief in electoral fairness.

Underlying the philosophical debate is a fundamentally factual question: do voter ID

laws protect the integrity of elections? According to the Frank court, Crawford definitively

answered this question. 768 F.3d at 750 (“[W]hether a photo ID requirement promotes

public confidence in the electoral system is a ‘legislative fact’—a proposition about the state

of the world, as opposed to a proposition about these litigants or about a single state.”). The

primary integrity-based justification offered for voter ID laws is that they prevent voter fraud.

But that seems to be a dubious proposition. A voter ID requirement addresses only certain

types of election malfeasance; specifically, impersonation fraud, by which one person poses as


21

another and votes under his or her name. This happens from time to time by accident, when

a voter signs the poll book on the wrong line. That produces some frustration for voters and

poll workers, but it does not represent a fundamental threat to the integrity of elections

because it does not happen that often and because everyone ultimately gets to vote.

The real fear is multiple voting: that a committed but unethical partisan could cast

many votes for his or her candidate under different names. Yet there is utterly no evidence

that this is a systematic problem, or even a common occurrence in Wisconsin or anywhere in

the United States. PX039, at 2, 35. True, it is not unheard of: in one well-known case, a

Milwaukee man was so committed to Governor Walker’s re-election that he voted 14 times.

Tr. 8a, at 184:3-24. He was charged with and convicted of voter fraud (even without the

benefits of the voter ID law). Proponents of voter ID would say that there could be other

incidents of voter fraud that have gone undetected. But there is no evidence to support that

hypothesis. As many have pointed out, multiple voting is not a very effective way of

influencing an election, and few people would risk the penalties to do so. The bottom line is

that impersonation fraud is a truly isolated phenomenon that has not posed a significant

threat to the integrity of Wisconsin’s elections.

The same cannot be said for Wisconsin’s voter ID law, which has so far been

implemented in a rigorously strict form: the only way to vote is to secure a state-approved ID.

As part of Act 23, Wisconsin enacted a statute allowing citizens to receive free IDs to vote.

But it was not until the eve of trial in this case that the state started paying for the

underlying documents (e.g., birth certificates) that citizens needed to submit to obtain these

free IDs. Even now, citizens who lack vital records can obtain free IDs only after navigating

the complicated IDPP. Wisconsin’s strict implementation of its voter ID law has


22

disenfranchised more citizens than have ever been shown to have committed impersonation

fraud.

In theory, the well-designed and easy-to-use registration and voting system imagined

in Crawford and Frank facilitates public confidence without eroding participation in elections.

But in practice, Wisconsin’s system bears little resemblance to that ideal.

So where does that leave plaintiffs’ facial challenge to the voter ID law? Plaintiffs

contend that two aspects of the factual record of this case distinguish it from Crawford and

Frank, paving the way to a fresh facial challenge.

1. Facial relief because of intentional discrimination

First, plaintiffs assert that Wisconsin’s voter ID law was motivated, at least in part, by

racial animus. This is a serious allegation against the public officials of Wisconsin, but the

court cannot easily dismiss it here. There is manifest racial disparity in the operation of the

IDPP: of the 61 actual denials that the DMV had issued as of April 2016, 85 percent were to

African Americans or Latinos. PX475. And government witnesses concede that 60 of these

denials were issued to qualified electors entitled to vote, but who could not meet the IDPP’s

criteria for a state-issued ID. See Tr. 6, at 75:24-76:17 (DMV administrator); Tr. 8p, at

191:2-5 (investigations unit employee). The legislative history suggests that some of the

provisions challenged in this case were specifically intended to curtail voting in Milwaukee,

where 40 percent of the population is African American and 17.3 percent is Latino

(approximately two-thirds of the state’s minority population). Both sides agree that if the

court finds that the Wisconsin legislature enacted a voter ID law for the at least partially with

the intent to discriminate on the basis of race, then the law is constitutionally unsound and


23

cannot stand. The court will address this issue below, in discussing the intentional

discrimination claims that plaintiffs have alleged in this case.

2. Facial relief because the IDPP has failed

The second factual distinction concerns the IDPP, which plaintiffs contend imposes

severe and discriminatory burdens on some qualified Wisconsin electors. The IDPP was the

subject of a great deal of testimony at trial, and it has become a dominant issue in this case.

Plaintiffs contend that the IDPP demonstrates Wisconsin’s intentional race discrimination, is

unconstitutional under the Anderson-Burdick framework, and violates the Voting Rights Act.4

And because this constitutionally required safety net is not working, plaintiffs argue that the

court must strike down the entire voter ID law.

The context for, and history of, Wisconsin’s effort to implement the IDPP began with

Act 23, passed in 2011. Besides establishing voter ID, this legislation created Wis. Stat.

§ 343.50(5)(a)3., which provided that a voter could get a Wisconsin ID from the DMV for

free, if the voter requested it for voting. But voters who did not have their birth certificates

had to get copies, which typically required paying a fee to a government agency. Thus, getting

a free ID was not really free.

Many thought that the fees that voters had to pay for copies of their vital records

were tantamount to an unconstitutional poll tax. Indeed, that was the conclusion that the

Wisconsin Supreme Court reached in Milwaukee Branch of NAACP v. Walker, which relied on

Crawford to uphold Wisconsin’s voter ID law against a facial challenge. 2014 WI 98, ¶ 7, 357

Wis. 2d 469, 851 N.W.2d 262, reconsideration dismissed, 856 N.W.2d 177 (2014). The state

supreme court applied a savings construction to the Wisconsin Administrative Code to

4 The court will analyze the IDPP under these legal theories later in this opinion.


24

provide that the required vital documents were “unavailable” to a prospective voter if he or

she would have to pay a fee to get them. Id. ¶¶ 66-71. Thus, a person who had to pay to get a

birth certificate could use the DMV’s special petition process in Wis. Admin. Code DOT

§ 102.15 (i.e., the IDPP) to ask for a free ID on the grounds that a birth certificate was

unavailable. As the Seventh Circuit recognized in Frank, the availability of a truly free ID

provided a necessary safety net that preserved the constitutionality of Wisconsin’s voter ID

law. 768 F.3d at 747. But since then, effectuating the savings construction to provide free

photo IDs to voters who lacked the requisite vital records has proven to be difficult for the

DMV, to say the least.

For purposes of this opinion, the court does not need to retrace every detail of DOT’s

response to NAACP v. Walker; plaintiffs have set out the timeline in a chart appended to

their brief. Dkt. 207, at 253-57. In summary, the DOT instituted an emergency rule on

September 11, 2014 (the day before the appellate argument in Frank). PX456. The

emergency rule changed the definition of “unavailable,” following the Wisconsin Supreme

Court’s direction, and it reorganized the IDPP into a new subsection of Wisconsin’s

Administrative Code, DOT § 102.15(5m). The emergency rule also created a procedure that,

in essence, required the DMV to track down the birth record of any person who requested a

free voter ID, if the person did not have a copy of their birth record. The procedure was

complicated because the process required interaction between various divisions of the DMV,

the Wisconsin Department of Health Services, and agencies of other states. PX472. The

main task of investigating and evaluating petitions fell to the DMV’s Compliance and Fraud

Unit (CAFU), which, as its name implies, has staff members whose normal duties are to

investigate allegations of fraud.


25

Many people successfully navigated the IDPP. Out of 1,389 petitions for free IDs, the

DVM issued IDs to 1,132 petitioners. Of the petitioners who applied, 487 had to go through

“adjudication,” which included a full investigation by CAFU5 and a final decision from Jim

Miller, the head of the DMV’s Bureau of Field Services (a different unit from CAFU). 230 of

the petitioners who went through adjudication received IDs; 257 petitioners did not. DMV

records indicate that 98 of the petitioners who did not receive IDs after adjudication

cancelled their petitions.6

The petitioners in suspended or denied status were the ones who faced serious

roadblocks in the IDPP: their birth records did not exist, or those records did not perfectly

match their names or other aspects of their identities, such as Social Security records. The

problems arose because the DMV evaluated IDPP petitions for voting IDs by using the same

identification standards that it applied to applications for Wisconsin driver licenses and

standard IDs. To acquire any one of these products from the DMV, a person must prove

both their identity and their legal presence in the United States. Thus, the DMV refused to

issue IDs to IDPP petitioners until CAFU could confirm their identities with a match to a

5 Full investigation by CAFU commonly involved acquiring a CLEAR background report.

These reports contained a substantial amount of deeply personal information, including any

criminal records, judgments and liens, residence history, home and vehicle ownership history,

and a list of possible relatives and associates. The DMV witnesses testified that the DMV

never used CLEAR reports to the disadvantage of petitioners. But even assuming that CLEAR

reports were acquired only to connect petitioners to vital records, the court finds that having

DMV personnel acquire and review a compilation of personal information imposes a

substantial burden on the right to vote.

6 The DMV’s code for “customer initiated cancel” covers a wide range of results. For example,

petitions received this code when the petitioner died while the petition was pending.

Petitions also received this code if a petitioner simply gave up or if he or she found a birth

certificate and applied for a standard state-issued ID.


26

valid birth record, or to some equivalently secure alternative. Some petitioners simply could

not meet the DMV’s standard of proof, and so they could not obtain free IDs.

The lack of a valid birth record correlated strikingly, yet predictably, with minority

status. The evidence at trial demonstrated that Puerto Rico, Cook County, Illinois, and states

with a history of de jure segregation have systematic deficiencies in their vital records systems.

Voters born in those places were commonly unable to confirm their identities under the

DMV’s standards. For example, many African American residents in Wisconsin were born in

Cook County or in southern states. PX479. And many of the state’s Latino residents were

born in Puerto Rico. Id. As of April 2016, more than half of the petitioners who had entered

the IDPP were born in Illinois, Mississippi, or a southern state that had a history of de jure

segregation. PX478.

In June 2015, the DMV begin issuing denials to IDPP petitioners. By the time of trial

in this case, the DMV had issued 61 denials, 53 of which were to minority petitioners.7

Again, with one exception, the DMV had no reason to doubt that those who were denied a

photo ID were Wisconsin residents, United States citizens, at least 18 years of age, and

qualified to vote. Tr. 6, at 75:24-76:17. The sole exception was a Latina woman who

mistakenly believed that she had been naturalized.

Since the state first implemented the IDPP, another related problem has prevented

petitioners from successfully navigating the process. Until recently, the state had not

appropriated any funds to pay for petitioners’ vital records. Although no petitioner was asked

to pay for any vital record, the state did not acquire any vital record for which a fee was

7 Nine of the petitioners who received denial letters were able to track down vital records on

their own and receive free IDs without using the IDPP. See Dkt. 207, at 69 (discussing

examples). The DMV re-coded these denials to “customer-initiated cancellations.”


27

required. The result was that some petitioners fell into limbo: the DMV did not deny their

petitions, but the petitioners could not confirm their identities. These petitioners ended up in

“suspend” status, with the DMV essentially waiting either for the petitioner to turn up new

records, or for enough time to pass that the DMV could officially deny the petition.

On March 7, 2016, DMV officials and state legal counsel met to discuss the state’s

failure to pay for vital records. At some point after the meeting, the DMV received funds,

and during the second week of trial in this case, the DMV made its first payment to acquire a

vital record for a petitioner. Tr. 7p, at 111:2-17.

On May 10, 2016, a week before the trial in this case began, the governor approved

another emergency rule modifying the IDPP. PX452. The new rule acknowledged that

emergency rulemaking was required to ensure that qualified electors could get a photo ID

with reasonable effort in time for the next elections:

This emergency rulemaking [was] also necessary to preserve the

integrity of the verification process utilized by the Department

in issuing an identification card while still preserving the public

welfare by ensuring that qualified applicants who may not be

able to obtain acceptable photographic identification for voting

purposes with reasonable effort will be able to obtain

photographic identification before the next scheduled elections.

PX453, at 14. The rule ameliorated some of the deficiencies of the IDPP: it established

procedures and standards for evaluating petitions; it provided a means to surmount common

impediments such as minor mismatches between a birth record and other aspects of a

petitioner’s identity; and it established “more likely than not” as the standard for evaluating

evidence of identity, birthdate, and citizenship.8 Perhaps most important, the emergency rule

8 At trial, DMV witnesses testified that the new emergency rule codified current practice.

Tr. 8p, at 190:7-193:7. This testimony was not credible. The testimony of CAFU employees

showed that petitioners were held to a much higher standard than “more likely than not.”


28

required the DMV to issue petitioners temporary identification card receipts that were valid

for voting purposes while their petitions were pending.

Defendants contend that the latest emergency rule fixes the problems with the IDPP,

and that because all petitioners still in the process have a receipt valid for voting, the dispute

over the IDPP is moot. The court disagrees for two reasons.

First, the receipts issued under the emergency rule are not permanent. Those who

hold them will be able to vote only so long as the receipts are renewed. But qualified electors

are entitled to vote as a matter of constitutional right, not merely by the grace of the

executive branch of the state government. The state has promised to renew the receipts for

180 days so that they will be good through the November 2016 election. But the state has

been utterly silent on what happens after that. As things stand now, after these receipts

expire, petitioners will once again find themselves in IDPP limbo. Thus, at best, the

emergency rule gives the state time to devise a new solution (but the court has not seen any

evidence to suggest that the state is actually working on a solution).

Second, even under the emergency rule, petitioners will have to convince the DMV to

exercise its discretion to issue them IDs. Although the emergency rule guides that discretion

and specifies that the applicable standard of proof is “more likely than not,” the process is

still far more arduous than collecting documents and making a trip to the DMV, as

envisioned in Crawford and Frank. Being investigated by CAFU, even under the newest

iteration of Wisconsin’s emergency rule, still makes it unnecessarily difficult to obtain an ID.

The court finds that IDPP petitions were decided by a standard that was at least as rigorous

as “clear and convincing proof.”


29

For now, suffice it to say that the court agrees that the IDPP is a wretched failure: it

has disenfranchised a number of citizens who are unquestionably qualified to vote, and these

disenfranchised citizens are overwhelmingly African American and Latino. The IDPP violates

the constitutional rights of those who must use it, and so Wisconsin must therefore replace

or substantially reform the process. But that does not mean that the voter ID law is

unconstitutional in all of its applications. Because a targeted remedy can cure the

constitutional flaws of the IDPP (and thus, the entire voter ID law), facial relief is not

necessary or appropriate.

Crawford and Frank effectively foreclose invalidating Wisconsin’s voter ID law

outright. Based on the evidence presented at trial, the court has some misgivings about

whether the law actually promotes confidence and integrity. But precedent is precedent, and

so the court will deny plaintiffs’ request to invalidate the entire voter ID regime.

C. Intentional discrimination

Plaintiffs assert claims under the Fifteenth and Twenty-Sixth Amendments, alleging

intentional discrimination on the basis of race and on the basis of age. The legal standards for

evaluating these claims are substantially identical, and most of the pertinent evidence for

each claim is the same. With the exception of Wisconsin’s restriction on the number of hours

that municipal clerks can offer in-person absentee voting, the court concludes that plaintiffs

have failed to prove their claims of intentional discrimination.

1. Race discrimination

Plaintiffs contend that the Wisconsin legislature passed many of the challenged

provisions in violation of the Fifteenth Amendment. To succeed on these claims, plaintiffs

must demonstrate that the legislature intentionally discriminated against voters because of


30

their race. Rogers v. Lodge, 458 U.S. 613, 617 (1982); Village of Arlington Heights v. Metro. Hous.

Dev. Corp., 429 U.S. 252, 265 (1977). Discriminatory animus does not need to be the only

reason for Wisconsin’s new laws, or even the primary reason,but “official action will not be

held unconstitutional solely because it results in a racially disproportionate impact.” Arlington

Heights, 429 U.S. at 264-65. Nor do plaintiffs have to prove discriminatory intent with direct

evidence of racial animus. Rogers, 458 U.S. at 618.

Whether a law is motivated by racial discrimination is a difficult factual

determination, guided by sparse precedent. Arlington Heights provides the essential template:

“Determining whether invidious discriminatory purpose was a motivating factor demands a

sensitive inquiry into such circumstantial and direct evidence of intent as may be available.”

429 U.S. at 266. The starting point of the analysis is whether the law has had a disparate

impact. But unless there is a startling pattern, inexplicable on grounds other than race,

impact alone is not determinative. In that case, other evidence must support a finding of

discrimination. This evidence can include the historical background and context of the law

and the legislative history, especially any contemporaneous statements by the decision-

making body. See id. at 266-68.

Before turning to the Arlington Heights analysis, the court considers defendants’

evidentiary objection to one of plaintiffs’ experts, historian Allan Lichtman, PhD. At trial,

Dr. Lichtman testified that several of the challenged provisions were motivated by intentional

race discrimination. See Tr. 6, at 237:5-18. Defendants contend that Dr. Lichtman’s

testimony invaded the province of the court by offering an opinion on an ultimate issue in

the case, and that it was therefore not a proper topic for expert analysis. The court agrees.

Dr. Lichtman provided some useful factual background to the legislation at issue—


31

background that defendants did not dispute—but the court will not otherwise adopt his

analysis or opinions about the specific issue of the legislature’s intent in passing the

challenged provisions.

With these considerations in mind, the court turns to the merits of plaintiffs’

intentional race discrimination claim. The court will analyze this claim first in the context of

Wisconsin’s voter ID law, then in the context of the IDPP, and finally in the context of the

other challenged provisions.

a. The voter ID law

To analyze whether Wisconsin’s voter ID law violates the Fifteenth Amendment, the

court begins by summarizing the disparate impact that the law has had on racial minorities.

The question of how many people in Wisconsin have a driver license or a Wisconsin ID has

proved to be surprisingly hard to answer. The district court in Frank estimated that about

300,000, about 9 percent of the state’s registered voters, lacked a valid photo ID. 17 F. Supp.

3d at 854. The Seventh Circuit doubted this, partly because the district court in Crawford

estimated that only 43,000 lacked ID in Indiana, and partly because it just seems implausible

that 9 percent of the adult population could get by without a photo ID. 768 F.3d at 748.

To answer this question, both sides’ experts matched the statewide voter registration

database to the DMV database. Both sides recognize that the databases are not readily

matched, which makes errors likely. After identifying and correcting for errors, plaintiffs’

expert, Kenneth Mayer, PhD, estimated that 8.4 percent of registered voters lack a

Wisconsin ID. Defendants’ expert, M.V. Hood III, PhD, put the estimate at only 4.54

percent. The primary difference between the two experts is that Dr. Hood had the help of a

DMV programmer, Fred Eckhardt, who was able to match an additional 112,817 registered


32

voters to valid Wisconsin IDs. Tr. 4p, at 201:17-202:1. The court finds that Eckhardt’s work

was reliable, and that Dr. Hood’s estimate is therefore the more credible one as to the

number of registered voters without ID.

Unfortunately, Dr. Hood did not break those numbers down by race. Dr. Mayer did,

PX038, at 19 (Table 3), and he shows that African Americans and Latinos are more likely to

lack ID. But his starting point uses the inflated 8.4 percent of voters without ID. With some

of its own arithmetic to reconcile Dr. Mayer’s proportions to Dr. Hood’s base,9 the court

finds that approximately 4.5 percent of white voters lack ID; 5.3 percent of African American

voters lack ID; and 6.0 percent of Latino voters lack ID. The court notes that these numbers

say nothing about what proportions of voters lack the documentation that would allow them

to get a qualifying ID if they sought one.

Dr. Hood’s evidence shows that African Americans and Latinos make up a

disproportionate share of those seeking free IDs for voting. African Americans accounted for

35.6 percent of free IDs, whereas they make up only 5.6 percent of the citizen voting age

population. Latinos accounted for 8.3 percent of the free IDs, against only 3.3 percent of the

citizen voting age population. These numbers show very pronounced racial differences among

those who seek IDs. This, in turn, strongly suggests that a greatly disproportionate share of

African Americans and Latinos will have to go to the trouble of acquiring a qualifying ID to

vote. But most of those who seek free IDs are probably voters who have the documents

necessary to get a qualifying ID. Frank recognizes that this disparity could well have a

corresponding disparate effect on turnout because any procedural requirement will dissuade

9 The court also assumes that the errors corrected by Eckhardt are distributed evenly across

racial groups. Nothing in Eckhardt’s description of the errors that he found suggested that

they would correlate with race.


33

some voters. But under Frank, the burden of going to the DMV to get a free ID is not

constitutionally significant because it is a modest burden no greater than the ordinary

burdens involved in voting. Still, the evidence here shows that patterns of ID possession are

racially disparate, and that is likely to have a racially disparate effect on turnout. And some

proportion of those seeking IDs will lack the usual documentation and have to enter the

IDPP. Those individuals, too, tend to be minorities: 67.9 percent of those who entered the

IDPP were minorities. PX474.

The bottom line is that the evidence suggests that the vast majority of Wisconsin

voters have a qualifying ID or could get one. But both ID possession and the lack of

qualifying documentation correlate strongly with race.

Next, the court considers the historical background of the voter ID law. As plaintiffs

showed, before 2011, Wisconsin had an exemplary election system that produced high levels

of voter participation without significant irregularities. See PX036, at 23 (Lichtman report

discussing studies from the Pew Charitable Trusts ranking Wisconsin second best in the

nation in electoral performance in 2008 and fourth best in 2010). The court will not go so far

as to say that Wisconsin could not have improved its elections. But there was no evidence

that Wisconsin elections actually suffered from identifiable problems, despite

unsubstantiated allegations of fraud in the 2004 presidential election.

Plaintiffs contend that demographic shifts in Wisconsin made the minority vote

critical to the outcome of elections. For example, from 2010 to 2014, the white voting age

population in Wisconsin declined by 1.3 percent, while the African American population

increased by 3.5 percent, and the Latino population increased by 8.7 percent. Id. at 16-17.

Voting in Wisconsin is sharply polarized by race: in statewide elections over the last decade,


34

90 percent of African Americans and 63 percent of Latinos voted for Democratic candidates.

Because Wisconsin is a closely divided swing state, marginal differences in turnout can be

decisive in close elections. Plaintiffs contend that demographic and political considerations

combined to give Wisconsin Republicans a motive to discriminate against minorities in

voting laws.

The Wisconsin political environment changed dramatically in 2010: Republican Scott

Walker was elected governor, and Republicans won control of both houses of the legislature.

Although the recall elections in summer 2012 briefly shifted control of the state senate to

Democrats, Republicans regained control of the chamber a few months later. The legislature

and the governorship have been in Republican control since then. Plaintiffs contend that

sustained one-party control over the legislature and governorship gave Republicans the

opportunity to pass discriminatory election legislation.

Plaintiffs concede that there were no procedural irregularities in how Wisconsin’s

voter ID law, or any of the other challenged provisions, were passed. “Given unified

Republican control of the legislature and governorship . . . Republicans did not have to

violate procedural rules to enact many of the limitations on voting” that are at issue. Id. at

48. Nevertheless, plaintiffs contend that the bills were rushed through the legislature,

depriving the GAB of time to review them, and providing inadequate time for public input.

See PX084. This dovetails with plaintiffs’ contention that there were substantive irregularities

with the laws, by which plaintiffs mean that the laws were not well justified or consistent.

Defendants are correct that the legislature had no obligation to provide any rationale to

support a validly enacted law. But plaintiffs have a point: the challenged laws were passed by

a process that allowed limited public input and little actual debate. The legislative history


35

demonstrates that Democrats and members of the public voiced concerns about the

discriminatory impact of the laws, and that those concerns largely went unrebutted. Thus,

the court has little information about what actually prompted these bills and the reasons why

the legislature enacted them into law. Most of them were passed with only summary

statements of legislative purpose, typically invoking only generic concerns for election

integrity or consistency. See, e.g., PX058; PX216.

Plaintiffs would fill the gap in the official legislative record with extra-legislative

comments by Republican legislators and staffers, which plaintiffs contend strongly indicate

discriminatory intent. The court will not recapitulate all such statements in the record, but

plaintiffs have identified a few as particularly telling. First, plaintiffs cite to a recent comment

by former state senator Glenn Grothman (now a U.S. representative) that he thought that

Wisconsin’s voter ID law would help Republicans in the 2016 presidential election. PX068.

Second, plaintiffs cite to Grothman’s statements on the floor of the senate in 2014

concerning the need to limit the hours for in-person absentee voting in Milwaukee. PX022.

Third, plaintiffs cite to statements by former state senator Dale Schulz and by his staffer

Todd Albaugh. During a radio interview, Schultz indicated that the Republican leadership of

the legislature passed the voter ID law for partisan purposes, not out of any legitimate

concern for the integrity of Wisconsin elections. PX067. Albaugh testified that at the last

meeting of the Republican caucus before the vote on Act 23, the Republican leadership

insisted that Republicans get in line to support the bill because it was important to future

Republican electoral success. See Tr. 1a, at 84:1-24.10

10 At trial, defendants disputed Albaugh’s interpretation and evaluation of the meeting, and

they also objected to his testimony on hearsay grounds. The court overrules the hearsay

objection because Lazich’s out-of-court statements were not offered for their truth. The point


36

The parties have also stipulated to the admissibility of notes and correspondence from

the files of various Republican legislators. See Dkt. 184, at 3-4. Among other things, this

evidence includes senator Alberta Darling’s expressed opinion that had it been in effect, the

voter ID law would have made a difference in the November 2012 election, id. at 4, which

like Grothman’s more recent statement, shows that legislators believed that Act 23 would

have a partisan impact on elections.

The court may consider these statements under Arlington Heights. But ample authority

counsels skepticism, and the court will not simplistically assign discriminatory intent to the

legislature based on the comments of individual legislators. See Veasey v. Abbott, No. 14-

41127, 2016 WL 3923868, at *9 (5th Cir. July 20, 2016) (“While probative in theory, even

those (after-the-fact) stray statements made by a few individual legislators voting for SB 14

may not be the best indicia of the Texas Legislature’s intent.”). The comments that plaintiffs

have identified paint a consistent picture that resonates with the rest of the record,

particularly the lack of a verified problem with voter fraud, and the increasingly partisan

divisions in support for the law. The conclusion is hard to resist: the Republican leadership

believed that voter ID would help the prospects of Republicans in future elections. (And for

that matter, Democrats apparently thought that, too.)

As for other context surrounding Wisconsin’s voter ID law, the court notes that Act

23 was the first in a series of election reforms that the Republican-controlled legislature

passed between 2011 and 2014. None of these laws made registration or voting easier for

was not that the voter ID law would actually help Republicans in future elections. The point

was that Lazich thought they would, and that was part of her motive for encouraging support

for the voter ID law. Defendants offered no evidence to dispute the accuracy of Albaugh’s

recounting of what was said at the meeting.


37

anyone, but they had only minimal effect on less transient, wealthier voters. For reasons

explained more fully below, the stated rationales for many provisions of Act 23, and for the

election laws that followed it, were meager. Accordingly, in light of the record of the case as a

whole, the conclusion is nearly inescapable: the election laws passed between 2011 and 2014

were motivated in large part by the Republican majority’s partisan interests.

Against this background, the court turns to the more difficult question of whether Act

23 was motivated by racial animus. For the following reasons, the court finds that it was not.

First, the legislature passed the voter ID bill in 2011, three years after the Supreme

Court upheld a facial challenge to a similar voter ID law in Crawford. The Court had held that

voter ID laws served a legitimate government interest in election integrity, and that they did

not have an unduly disparate impact on racial minorities. Legislators would have been

entitled to embrace the rationale that the Supreme Court endorsed, even if other legislators

or members of the public contended that the law would have a disparate impact on

minorities.

Second, voter ID bills have a long history in Wisconsin and in the United States, and

that history does not suggest that such laws are inherently motivated by racial animus. In

2005, the Commission on Federal Election Reform, co-chaired by Jimmy Carter and James

Baker III, identified a voter ID system with photo ID as one of five pillars of a reformed U.S.

election system. Commission on Federal Election Reform, Building Confidence in U.S. Elections

(September 2005), http://www.eac.gov/assets/1/AssetManager/Exhibit%20M.PDF. That same

year, the Wisconsin legislature passed a photo ID bill that was ultimately vetoed by Governor

Doyle, a Democrat. Although Democrats tended to oppose that bill, it garnered significant


38

bipartisan support. This history shows that legislators and politicians with no motive to

discriminate against minorities have nevertheless supported voter ID laws.

Third, even though there is scant evidence of actual voter fraud in Wisconsin, the

concern for election integrity provides a valid, non-discriminatory reason for supporting a

voter ID law. To be sure, there is a legitimate countervailing concern that voter ID

requirements impede access to the polls. But the existence of a robust, non-discriminatory

rationale in favor of voter ID makes it hard to draw the inference that support for voter ID

must be racially motivated.11

Plaintiffs nevertheless contend that the strict version of voter ID enacted in 2011

suggests a discriminatory motive. But by then, the potential for a voter ID requirement to

have a racially disparate impact had long been recognized. See, e.g., id. at 20 (“The

introduction of voter ID requirements has raised concerns that they may present a barrier to

voting, particularly by traditionally marginalized groups, such as the poor and minorities,

some of whom lack a government issued photo ID.”) Democrats, private citizens, and the

GAB repeatedly raised these types of concerns to the legislature. See, e.g., PX014; PX084;

PX263; PX299.The legislature passed the voter ID bill anyway, and the governor signed it.

Plaintiffs contend that the legislature’s apparent willful blindness to Act 23’s disparate

effects is strong evidence of discrimination. But the legislature did not entirely ignore these

11 Dr. Lichtman points out that in 2015, during consideration of a bill to require photo IDs

for the Food Share program, the Wisconsin Assembly rejected an amendment that would

have allowed Food Share IDs to be used for voting. PX036, at 36-37. According to Dr.

Lichtman, if the legislature were sincerely interested in election integrity, it would accept

Food Share IDs for voting because they are every bit as secure as Wisconsin IDs. The refusal

to accept Food Share IDs is, therefore, evidence of discriminatory intent. The argument

would be persuasive, if it were contemporaneous with Act 23, the voter ID law. The force of

the argument is also blunted because the Food Share ID bill has not been enacted.


39

concerns. Act 23 created Wis. Stat. § 343.50(5)(a)3., which required the DMV to provide a

free ID to any citizen over the age of 18 who requested one for voting. Since the introduction

of the IDPP in 2014, the profound difficulty of providing traditional DMV-issued IDs to

some voters has become apparent, and the state has been painfully reluctant to address these

problems. But in 2011, to the legislature that passed Act 23, the free ID seemed like a

reasonable response to the concerns that opponents raised. C.f. Building Confidence in U.S.

Elections, at 20 (“Part of these concerns are addressed by assuring that government-issued

photo identification is available without expense to any citizen.”).

In sum, the court concludes that plaintiffs have not proven by a preponderance of the

evidence that the voter ID provision of Act 23 was motivated, even in part, by racial animus.

Wisconsin’s voter ID law therefore does not violate the Fifteenth Amendment.

b. The IDPP

The racial imbalances among IDPP petitioners, and among the results of the process,

are striking. Minorities make up only 11 percent of Wisconsin’s citizen voting age

population, but they make up 55 percent of the voters who have received free IDs since Act

23 was passed. DX265. As of April 2016, two-thirds of those who entered the process were

minorities; African Americans alone represented 55.9 percent of IDPP petitioners. PX474.

Worse yet, African Americans and Latinos represented 85 percent (52 out of 61) of all IDPP

denials. PX475.

Plaintiffs contend that these numbers present the kind of striking pattern that is

inexplicable as anything but intentional discrimination. They argue that the court should find

the IDPP to be unconstitutional on that basis alone, relying on decisions such as Gomillion v.


40

Lightfoot, 364 U.S. 339 (1960) (allegations of extreme gerrymandering, if proven, would be

tantamount to a “mathematical demonstration” of discrimination).

The court is not persuaded that statistics about the petitioners who have used the

IDPP, or been denied free IDs, compel a finding of intentional race discrimination. And the

reasoning is simple: the free ID procedure and the IDPP were designed to blunt the potential

for disenfranchisement that might arise from Wisconsin’s voter ID law. The potential for

disenfranchisement, as all recognized, fell more heavily on minorities. Thus, it is no surprise

that those who sought free IDs, or who entered the IDPP because they lacked vital records,

were predominantly minorities. It is also no surprise that minorities foundered at high rates

in a process that required documentary proof of identity, birthdate, and citizenship.

Make no mistake: the IDPP as it currently exists has failed to fulfill its constitutional

purpose. But plaintiffs have not shown that it is the result of intentional race discrimination.

As plaintiffs’ counsel repeatedly reiterated to the DMV witnesses, plaintiffs do not allege that

DMV employees intended to discriminate against anyone. And as the court observed during

trial, some CAFU employees undertook nearly heroic efforts to track down documents to

prove petitioners’ identities and birthdates. The court finds that DMV employees, especially

CAFU employees, undertook their duties in good faith, trying as best they could under the

governing regulations to get IDs into the hands of as many petitioners as possible.

Another reason why the court cannot find that the legislature intentionally

discriminated on the basis of race is that the legislature did not design or implement the

IDPP. The fault lies with the executive branch, which let the IDPP grind on until plaintiffs in

this litigation exposed its many flaws. But plaintiffs have not shown that anyone in the

executive branch knew that the IDPP was disenfranchising voters and ignored the problem.


41

The flaws would not have been hard to find, and Wisconsin should have done better. But

based on the evidence presented at trial, the court cannot find that members of the executive

branch acted with racial animus in creating or implementing the IDPP.

c. Other challenged provisions

The court now turns to the other provisions that plaintiffs challenge under the

Fifteenth Amendment. Setting aside the provisions relating to in-person absentee voting,

plaintiffs contend that the legislature enacted the following regulations, at least in part, with

the intent to discriminate against African Americans and Latinos: (1) eliminating

corroboration; (2) requiring documentary proof-of-residence; (3) eliminating statewide SRDs;

(4) increasing the durational residency requirement; (5) changing the location for election

observers; and (6) eliminating straight-ticket voting.

Plaintiffs contend that each of these changes in Wisconsin’s voting laws particularly

disadvantage minorities, who tend to be poorer, less educated, and more transient. But

disparate impact alone is not enough to show intentional discrimination. Arlington Heights,

429 U.S. at 264-65. These regulations are all facially neutral, and the extra burdens that they

impose would fall on anyone who is poorer, less educated, or more transient, regardless of

race. As explained in other parts of this opinion, some of these regulations are not justified by

significant government interests, which puts their legitimacy under Anderson-Burdick in doubt.

But plaintiffs give the court no reason to find that any of these regulations were targeted at

minority voters or that the legislature was racially motivated in passing any of them.

Accordingly, the court concludes that plaintiffs have not shown by a preponderance of the

evidence that any of these changes in Wisconsin’s voting laws were motivated, even in part,

by racial animus.


42

As for the one-location rule, plaintiffs proved that forcing all municipalities to offer

only one location for in-person absentee voting imposed greater burdens on voters in large

municipalities like Milwaukee than it did on voters in smaller towns. And because Milwaukee

has a predominantly minority population, the one-location rule was all but guaranteed to

have a disparate impact. But this provision has been in effect since 2005, long before the

legislature enacted the restrictions to the hours for in-person absentee voting. See Wis. Stat.

§ 6.855(1). Thus, the legislative history and other contextual evidence discussed above does

not bear on the issue of whether the legislature passed the one-location rule with the intent

to discriminate. Indeed, plaintiffs have not offered any evidence addressing the legislature’s

intent in enacting this statute. The court therefore concludes that plaintiffs have failed to

prove that the one-location rule violates the Fifteenth Amendment.

That leaves the provisions that reduce the days and hours in which in-person absentee

voting is allowed. Plaintiffs have adduced evidence that weekend and evening voting is

particularly important for socioeconomically disadvantaged voters, and that, in Wisconsin

and nationwide, African American and Latino voters have made particularly good use of

various forms of early voting. See, e.g., PX036, at 42; PX047. Early voting in groups on

Sundays—including church-supported “Souls to the Polls” efforts—is a widespread practice

among African American voters, in Wisconsin and nationwide. Tr. 1p, at 134:6-135:1;

PX245, at 38. But again, a disparate impact, without more, does not prove intentional

discrimination.

But plaintiffs have more. Statements by legislators show that Act 146 reduced the

hours allowed for in-person absentee voting specifically to curtail voting in Milwaukee, and,

secondarily, in Madison. Senator Grothman made repeated statements objecting to the


43

extended hours for in-person absentee voting in Milwaukee and Madison, indicating that

hours for voting needed to be “reined in.”12 On the floor of the senate, he said, “I want to nip

this in the bud before too many other cities get on board.” PX022, at 5. Senate Majority

Leader Scott Fitzgerald made similar comments. Id. at 12. As he put it, “But the question of

where this is coming from and why are we doing this and why are we trying to disenfranchise

people, I mean, I say it’s because the people I represent in the 13th district continue to ask

me, ‘What is going on in Milwaukee?’” Id. at 16.

Defendants contend that Grothman and Fitzgerald were simply trying to achieve a

measure of statewide uniformity because smaller towns were unable to afford the extended

hours that Milwaukee was offering. That explanation is hard to credit. Under Act 146, the

legislature still tolerates disparities in voting hours among Wisconsin municipalities. Each

municipality can set its own hours for in-person absentee voting. Larger cities can still outdo

smaller municipalities by having their full-time clerks hold office hours that cover the full

work week, while smaller towns with part-time clerks will hold limited hours, sometimes as

little as an afternoon a week. Thus, rather than achieving uniformity, the provisions

governing the hours for in-person absentee voting preserved great disparities from town-to-

town. The legislative record shows that Act 146 was uniformly opposed by municipal clerks.

PX216. Its only supporter of record was the Republican election activist Ardis Cerny. Id. And

12 Plaintiffs have adduced evidence that might suggest personal bias on Grothman’s part.

PX078 (statements about Martin Luther King, Jr. Day); PX073 (about Milwaukee voters

who would not be able to vote on weekends: “[A]nybody who can’t vote with all these

options, they’ve really got a problem. I really don’t think they care that much about voting in

the first place, right?”). The court does not ascribe Grothman’s personal antagonism toward

minority voters to the legislature.


44

Governor Walker partially vetoed the bill as too extreme a reduction in opportunities to vote.

PX058.

The acknowledged impetus for this law was the sight of long lines of Milwaukee

citizens voting after hours. Yet instead of finding a way to provide more access to voters in

small towns, the legislature responded by reining in voters in Milwaukee, the state’s most

populous city, where two-thirds of its African American citizens live. At trial, Kevin Kennedy,

director of the GAB, confirmed that the purpose of reducing the hours for in-person absentee

voting was to restrain voting in Milwaukee:

Clearly in the recall election, the City of Milwaukee opened its

in-person absentee voting for Memorial Day, which was the day

before the gubernatorial recall election, and that did not sit well

with the Republican majority. They thought that was designed

purposely . . . to allow more Democratic voters, even though it

could also be said it was designed to facilitate the needs of the

unique voters in Milwaukee. But that was not lost on the

Legislature that the largest city made that choice whereas other

municipalities wouldn’t make that choice.

Tr. 5a, at 109:21-110:5.

The legislature’s ultimate objective was political: Republicans sought to maintain

control of the state government. But the methods that the legislature chose to achieve that

result involved suppressing the votes of Milwaukee’s residents, who are disproportionately

African American and Latino. The legislature did not act out of pure racial animus; rather,

suppressing the votes of reliably Democratic minority voters in Milwaukee was a means to

achieve its political objective. But that, too, constitutes race discrimination. Ketchum v. Byrne,

740 F.2d 1398, 1408 (7th Cir. 1984) (“We think there is little point for present purposes in

distinguishing discrimination based on an ultimate objective of keeping certain incumbent

whites in office from discrimination borne of pure racial animus.”); see also Rogers, 458 U.S. at


45

617 (“[M]ultimember districts violate the Fourteenth Amendment if ‘conceived or operated

as purposeful devices to further racial discrimination’ by minimizing, cancelling out or

diluting the voting strength of racial elements in the voting population.”).

Based on the evidence that plaintiffs have presented, the court finds that Wisconsin’s

restrictions on the hours for in-person absentee voting have had a disparate effect on African

Americans and Latinos. The court also finds that the legislature’s justification for these

restrictions was meager, and that the intent was to secure partisan advantage. Finally, the

court finds that the legislature specifically targeted large municipalities—Milwaukee in

particular—intending to curtail minority voting. Combined, these findings lead the court to

further find that the legislature passed the provisions restricting the hours for in-person

absentee voting motivated in part by the intent to discriminate against voters on the basis of

race.

2. Age discrimination

Plaintiffs contend that some of the challenged provisions discriminate against younger

voters on the basis of age, in violation of the Twenty-Sixth Amendment. The Twenty-Sixth

Amendment provides that “[t]he right of citizens of the United States, who are eighteen

years of age or older, to vote shall not be denied or abridged by the United States or by any

State on account of age.”

The federal courts that have considered Twenty-Sixth Amendment claims recognize

that there is “a dearth of guidance on what test applies to Twenty-Sixth Amendment claims.”

N.C. State Conference of the NAACP v. McCrory, No. 13-cv-658, 2016 WL 1650774, at *165

(M.D.N.C. Apr. 25, 2016), rev’d, No. 16-1468 (4th Cir. July 29, 2016)13; see also Walgren v.

13 The court has reviewed the Fourth Circuit’s decision invalidating North Carolina’s voter ID


46

Bd. of Selectmen of Amherst, 519 F.2d 1364, 1367 (1st Cir. 1975) (“[W]e are still without the

assistance of any precedents guiding us in evaluating the impact of the Twenty-sixth

Amendment.”); Nashville Student Org. Comm. v. Hargett, No. 15-cv-210, 2015 WL 9307284,

at *6 (M.D. Tenn. Dec. 21, 2015) (“As the parties note in their briefing, there is no

controlling caselaw from the Sixth Circuit or the Supreme Court regarding the proper

interpretation of the Twenty-Sixth Amendment or the standard to be used in deciding claims

for Twenty-Sixth Amendment violations based on an alleged abridgment or denial of the

right to vote.”).

The text of the Twenty-Sixth Amendment is patterned on the Fifteenth Amendment,

which prohibits the denial or abridgement of the right to vote on the basis of race. This

suggests that Arlington Heights provides the appropriate framework for evaluating plaintiffs’

claims of intentional age discrimination. Indeed, other courts have taken this approach when

confronted with similar allegations. See, e.g., Lee v. Va. State Bd. of Elections, No. 15-cv-357,

2016 WL 2946181, at *26 (E.D. Va. May 19, 2016). Although the district court in North

Carolina State Conference of the NAACP expressed doubt that the Twenty-Sixth Amendment

was intended to operate just like the Fifteenth Amendment, the court followed an Arlington

Heights-style analysis for the purposes of its decision. 2016 WL 1650774, at *165.

Anderson-Burdick provides a framework through which the court could evaluate the

burdens that fall on younger voters and the state’s justification for those burdens. But “[i]t is

difficult to believe that [the Twenty-Sixth Amendment] contributes no added protection to

that already offered by the Fourteenth Amendment, particularly if a significant burden were

law on the grounds that it was motivated by an intent to discriminate on the basis of race.

The decision relies on factual considerations unique to North Carolina, and, accordingly, it

has no bearing on this case.


47

found to have been intentionally imposed solely or with marked disproportion on the exercise

of the franchise by the benefactors of that amendment.” Walgren, 519 F.2d at 1367. Thus,

for plaintiffs’ age discrimination claims, the court will apply the Arlington Heights framework,

beginning by considering whether plaintiffs have shown that the challenged provisions have

had a disparate impact on younger voters. All of the challenged provisions are facially neutral,

but plaintiffs have offered anecdotal evidence that some of them disproportionately affect

younger voters. See generally Dkt. 207, at 236-41 (discussing trial evidence). As a class,

younger voters are poorer and less established. They are therefore less likely to have a driver

license and documentary proof of residence. They are also more transient, and thus will likely

face the burden of registration more often.

But this evidence falls short of showing that young people are more likely to face

burdens that they cannot overcome with reasonable effort. Young people may be more likely

to lack a driver license. But that does not show that they are more likely to lack the

credentials that one needs to get a Wisconsin ID. Young people may move more often, and

they may be more likely to conduct their affairs online. But that does not mean that they will

lack the documents needed to register, particularly because online documents can serve as

proof of residence. The court does not find strong evidence of a disparate impact, which puts

plaintiffs’ Twenty-Sixth Amendment claim on weak footing.

Plaintiffs have some evidence of anti-youth comments made by legislators, particularly

those by Senate Majority Leader Mary Lazich. Before the vote on Act 23, Lazich told the

senate Republican caucus that they should support the bill because of what it “could mean

for the neighborhoods of Milwaukee and the college campuses across this state.” Tr. 1a, at

84:1-24. As the court has already concluded, the Republican majority was motivated, in part,


48

by partisan objectives. But without more, this type of evidence did not establish

discrimination on the basis of race, and it does not establish discrimination on the basis of

age either.

Much of plaintiffs’ evidence concerns the restrictions that the legislature placed on the

use of college IDs. The rationale for these restrictions is not as weak as the rationale for the

reduction in hours for in-person absentee voting. Under Anderson-Burdick, the court will

evaluate whether these restrictions impose burdens that are warranted in light of the interests

that they serve. But in the context of intentional age discrimination, the question is more

limited: were these restrictions so baseless as to suggest purposeful discrimination against

young voters? The court concludes that the answer is “no.” The restrictions served a

legitimate interest in election integrity because many college students have documentation of

two residences: their school addresses, and their permanent home addresses. The legislature

had a legitimate interest in ensuring that students registered in only one place. See, e.g.,

PX229 (legislative note expressing interest in tightening up registration requirements so that

out-of-state students would have to declare residency in Wisconsin to vote in the state). The

court will review the state’s rationales for the other challenged restrictions later in this

opinion. For the purposes of plaintiffs’ age discrimination claim, however, it is sufficient to

say that these rationales are not so feeble as to suggest intentional discrimination.

One last point. College students may use any of the means of identification or proof

of residence that are available to all citizens generally. The legislature also extended to

students the additional ability to use their college IDs, albeit under certain restrictive

conditions. As a practical matter, these restrictions meant that the standard student IDs that

many University of Wisconsin campuses issue were not valid for voting. But some


49

universities have provided workarounds in the form of special university-issued voting IDs.

This seems like an unwarranted rigmarole, but the end result is that college students have

more ID options than other citizens do.

The court concludes that plaintiffs have not proven by a preponderance of the

evidence that the challenged provisions were motivated by intentional age discrimination.

D. Partisan fencing claim

At the heart of this case is plaintiffs’ contention that the Wisconsin legislature passed

the challenged provisions with the intent to suppress Democratic votes to gain a partisan

advantage in future elections. Plaintiffs contend that to accomplish this objective, the

legislature identified groups of voters who would likely vote for Democrats and then passed

measures to frustrate those voters’ access to the ballot box. Put differently, the legislature

targeted minorities, younger citizens, and citizens in urban areas like Milwaukee, not

necessarily because of racial or age-based animus, but because it believed that these groups

tended to vote for Democrats. Plaintiffs bundle these allegations into a “partisan fencing”

claim. Dkt. 141, ¶¶ 197-99.

This is not the first time that a group of plaintiffs in a voting rights case has asserted a

partisan fencing claim. See, e.g., Lee v. Virginia State Bd. of Elections, No. 15-cv-357 (E.D. Va.

filed June 11, 2015); Ohio Org. Collaborative v. Husted, No. 15-cv-1802 (S.D. Ohio filed May

8, 2015). But the legal theory is still a novel one, and neither party directs the court to

precedent—binding or otherwise—that definitively establishes a framework for analyzing

partisan fencing claims. Plaintiffs extrapolate that their partisan fencing claim is essentially a

claim for intentional discrimination, relying on statements in various Supreme Court

decisions. They therefore urge the court to consider their evidence of partisan motivation by


50

using the Arlington Heights framework, which would lead the court to invalidate any election

qualification that was motivated, even in part, by partisan objectives. Defendants contend

that a partisan fencing claim is really just a unique species of an undue burden claim, for

which the Anderson-Burdick framework is appropriate.

Plaintiffs derive the term “partisan fencing” from Carrington v. Rash, a case in which

the Supreme Court invalidated a Texas constitutional provision that prevented members of

the United States armed forces from voting if they moved to Texas during their service. 380

U.S. 89, 89 (1965). The Court held that “‘[f]encing out’ from the franchise a sector of the

population because of the way they may vote is constitutionally impermissible.” Id. at 94. But

the Court decided Carrington well before Anderson v. Celebrezze, 460 U.S. 780 (1983), and

Burdick v. Takushi, 504 U.S. 428 (1992), the two namesake cases for the Anderson-Burdick

framework that courts now apply to evaluate whether voting regulations burden First and

Fourteenth Amendment rights. Moreover, Carrington dealt with an outright prohibition on

voting—service members who moved to Texas during their military service could not vote

while they were in the armed forces. Id. at 89. And cases applying Carrington tend to involve

outright prohibitions on the right to vote. See, e.g., Evans v. Cornman, 398 U.S. 419, 419-20

(1970) (Maryland citizens who lived on a federal reservation prohibited from voting because

they were not residents of Maryland); Cipriano v. City of Houma, 395 U.S. 701, 702 (1969)

(per curiam) (“[O]nly ‘property taxpayers’ [had] the right to vote in elections called to

approve the issuance of revenue bonds by a municipal utility.”). Here, none of the challenged

provisions categorically bar any citizen of Wisconsin from voting. For these reasons,

Carrington is not directly on point here.


51

Looking toward more recent cases, at least one Justice of the Supreme Court has

suggested that there would be First Amendment implications for state restrictions on voting

that place burdens on voters because of their political views. See Vieth v. Jubelirer, 541 U.S.

267, 315 (2004) (Kennedy, J., concurring) (“If a court were to find that a State did impose

burdens and restrictions on groups or persons by reason of their views, there would likely be a

First Amendment violation, unless the State shows some compelling interest.”). Several years

later, a unanimous Court noted that this suggestion was “uncontradicted by the majority in

any of our cases.” Shapiro v. McManus, 136 S. Ct. 450, 456 (2015). But these decisions

involved gerrymandering, which is not at issue in this case.

The import of these cases is that analyzing a partisan fencing claim involves a

balancing analysis under the First Amendment. And that is exactly what the Anderson-Burdick

framework provides. The framework requires the court to identify the nature and severity of

the burden that a given voting regulation creates and then weigh that burden against the

state’s justification for it. Common Cause Ind. v. Individual Members of the Ind. Election Comm’n,

800 F.3d 913, 917 (7th Cir. 2015). Thus, Anderson-Burdick appears to fit the bill for

plaintiffs’ partisan fencing claim.

Two federal district courts that have confronted this question reached the same

conclusion. In Ohio Organizing Collaborative v. Husted, the Southern District of Ohio

concluded that Carrington does not “appear to create a separate equal protection cause of

action to challenge a facially neutral law that was allegedly passed with the purpose of fencing

out voters of a particular political affiliation.” No. 15-cv-1802, 2016 WL 3248030, at *48

(S.D. Ohio May 24, 2016). Instead, the court relied on the Anderson-Burdick framework as

“the proper standard under which to evaluate an equal protection challenge to laws that


52

allegedly burden the right to vote of certain groups of voters.” Id. Likewise, in Lee v. Virginia

State Board of Elections, the Eastern District of Virginia acknowledged that “[t]he term

‘partisan fencing’ is derived from Carrington . . . and is somewhat of an aberration.” 2016 WL

2946181, at *26. The court concluded that the term “has been rarely deployed in election

law litigation thereafter. It does not appear to create a separate cause of action but may be a

useful analytical tool in evaluating First Amendment and Equal Protection Clause cases.” Id.

The reasoning in these decisions is persuasive, and this court will follow their guidance.

The court will not adopt plaintiffs’ partisan fencing theory, but the theory is not

completely without basis. This case challenges state laws governing voter qualifications and

election mechanics; it is not a redistricting case. That distinction is important. The

redistricting process is inherently political through and through, and a gerrymandering claim

requires a court to decide how much partisan politics is too much. See generally League of

United Latin Am. Citizens v. Perry, 548 U.S. 399, 413-23 (2006). By contrast, voter

qualifications and election administration should not be political at all, and partisan gain can

never justify a legislative enactment that burdens the right to vote. So, plaintiffs argue, a state

should not be allowed to manipulate its election regime by imposing even slight burdens, if

the purpose is to suppress turnout to achieve a partisan advantage.

Despite the appeal of plaintiffs’ theory, Crawford and Frank foreclose the argument

that partisan fencing claims should be handled like claims of intentional race or age

discrimination, for which any discriminatory legislative intent is sufficient to invalidate a law.

See Frank, 768 F.3d at 755 (“‘[I]f a nondiscriminatory law is supported by valid neutral

justifications, those justifications should not be disregarded simply because partisan interests

may have provided one motivation for the votes of individual legislators.’” (quoting Crawford,


53

553 U.S. at 204)). Put differently, a provision is not unconstitutional if the legislators who

passed it were partly motivated by partisan gain, so long as there were sufficient valid

justifications. The Anderson-Burdick framework enables federal courts to undertake this type of

review.

In sum, the court rejects plaintiffs’ proposal to treat their partisan fencing claim as

distinct from their undue burden claims under the First and Fourteenth Amendments. As

explained below, the evidence of partisan motivation that plaintiffs have adduced is pertinent

to the legislature’s justifications for passing the challenged provisions. The court will

therefore consider this evidence as part of its Anderson-Burdick balancing analysis.

E. First and Fourteenth Amendment claims for undue burdens on the right to vote

Plaintiffs contend that each of the challenged provisions violates the First and

Fourteenth Amendments by impermissibly burdening the right of Wisconsin citizens to vote.

“A state election law, ‘whether it governs the registration and qualifications of voters, the

selection and eligibility of candidates, or the voting process itself, inevitably affects—at least

to some degree—the individual’s right to vote and his right to associate with others for

political ends.’” Common Cause Ind., 800 F.3d at 917 (quoting Anderson, 460 U.S. at 788). But

that is not to say that every voting-related law must survive strict scrutiny. Requiring states to

narrowly tailor their election regulations to advance only compelling interests “would tie the

hands of States seeking to assure that elections are operated equitably and efficiently.”

Burdick, 504 U.S. at 433. Federal courts must therefore apply a “more flexible standard”

when reviewing challenges to a state’s election laws. Common Cause Ind., 800 F.3d at 917.

Under the flexible Anderson-Burdick standard, “the rigorousness of [the] inquiry into

the propriety of a state election law depends upon the extent to which a challenged regulation


54

burdens First and Fourteenth Amendment rights.” Burdick, 504 U.S. at 434. The court must

undertake a three-step analysis for each of the challenged provisions. First, the court must

determine the nature and severity of the burden that a given provision imposes. Second, the

court must identify the state’s justification for the provision. Third, the court must weigh the

burdens against the state’s justifications for imposing them “and then make the ‘hard

judgment’ that our adversary system demands.” Crawford, 553 U.S. at 190.

For the first step in the Anderson-Burdick analysis, the court must focus on the burdens

that the challenged provisions place on eligible voters who cannot comply with the new

requirements (e.g., who lack registration documents, who need to vote during a different in-

person absentee voting period or at a different location, or who prefer to vote straight-ticket).

See id. at 198 (“The burdens that are relevant to the issue before us are those imposed on

persons who are eligible to vote but do not possess a current photo identification that

complies with the requirements of SEA 483.”). Just because the majority of Wisconsin voters

are able to comply with the state’s registration requirements, absentee voting procedures, and

miscellaneous election regulations does not mean that the burdens that these laws impose are

constitutionally insignificant. But just as important, the fact that a few Wisconsin voters have

difficulty complying with these laws is not enough to invalidate them across the board.

Crawford, 553 U.S. at 199-200 (“And even assuming that the burden may not be justified as

to a few voters, that conclusion is by no means sufficient to establish petitioners’ right to the

[facial] relief they seek in this litigation.”).

For the second step in the Anderson-Burdick analysis, the court must “consider the

precise interests put forward by the State as justifications for the burden imposed by its rule,

taking into consideration the extent to which those interests make it necessary to burden the


55

plaintiff’s rights.” Common Cause Ind., 800 F.3d at 921 (citations and internal quotation

marks omitted).

For the third step in the Anderson-Burdick analysis, the court must weigh the burdens

of a given provision against the state’s justification for it. When the state imposes a “severe”

restriction on the right to vote, then “the regulation must be narrowly drawn to advance a

state interest of compelling importance.” Burdick, 504 U.S. at 434 (citations and internal

quotation marks omitted). “But when a state election law provision imposes only ‘reasonable,

nondiscriminatory restrictions’ upon the First and Fourteenth Amendment rights of voters,

‘the State’s important regulatory interests are generally sufficient to justify’ the restrictions.”

Id. (quoting Anderson, 460 U.S. at 788).

With these considerations in mind, the court turns to the specific provisions that

plaintiffs challenge in this case.

1. Limiting in-person absentee voting

In 2005, Wisconsin enacted Wis. Stat. § 6.855, which limited municipalities to one

location for in-person absentee voting. At that time, the state did not limit the hours for in-

person absentee voting. But as a practical matter, in-person absentee voting could not begin

until municipal clerks received the ballots from the company that printed them, which was

usually three to five weeks before the election. Tr. 2, at 265:5-7; Tr. 4p, at 121:3-11; Tr. 7a,

at 114:9-15. Through Act 23, passed in 2011, and Act 146, passed in 2014, the legislature

narrowed the window for in-person absentee voting to 10 days and prohibited municipal

clerks from offering in-person absentee voting on weekends or on the Monday before an

election. The legislature also limited the hours available for in-person absentee voting to

between 8:00 a.m. and 7:00 p.m.


56

The court finds that the challenged in-person absentee voting provisions place a

moderate burden on the right to vote.

Wisconsin’s changes to its in-person absentee voting regime came amidst an increase

in the use of absentee voting, both nationally and in Wisconsin. About 60,000 voters cast in-

person absentee ballots on the Monday before the November 2008 general election. PX435,

at 13. As plaintiffs’ expert, Barry Burden, PhD, testified, absentee voting in Wisconsin (both

by mail and in-person) increased from 10.6 percent to 15.5 percent between the 2010 and

2014 midterm elections. PX037, at 23. For presidential elections, the increase was not as

significant: 21.1 percent in 2008 to 21.4 percent in 2012. Id. Defendants’ expert, Dr. Hood,

reached similar conclusions. Tr. 8a, at 32-41; DX001, at 11.

In spite of these trends, plaintiffs contend that the one-location rule and hour limit

stifled in-person absentee voting in Wisconsin. Their theory is that if the legislature had not

passed the challenged provisions, then in-person absentee voting would have increased even

more, particularly among minorities and young voters, who tend to vote for Democrats. The

court agrees with Dr. Hood that it would be nearly impossible to directly prove this theory—

there is no way to redo the 2012 and 2014 elections without the in-person absentee

provisions in place. Tr. 8a, at 44:3-6. Neither side had compelling statistical evidence that

African Americans in Wisconsin had made disproportionate use of in-person absentee voting.

But plaintiffs had good anecdotal and circumstantial evidence that the in-person

absentee laws impose burdens for certain voters by demonstrating that the changes had

profound effects in larger municipalities like Madison and Milwaukee. These cities are home

to populations of voters who disproportionately lack the resources, transportation, or flexible

work schedules necessary to vote in-person absentee during the decreased timeframe. PX037,


57

at 26-27. At trial, clerks from both cities testified that the new laws forced them to drastically

cut back on the amount of time that they could offer in-person absentee voting. For example,

before the November 2012 elections, Madison offered in-person absentee voting until 8:00

p.m. on weekdays, and for a few hours on Saturdays and Sundays. Tr. 2, at 265:16-20. Up to

1,200 voters a day would use in-person absentee voting. Id. at 266:1-6. As for Milwaukee,

defendants’ own expert summarized how the changes have similarly affected the availability

of in-person absentee voting since 2008.

DX001, at 9. Voters in both municipalities took advantage of the opportunities available

before the state limited in-person absentee voting, particularly weekend voting. PX206.

In Wisconsin, voters in larger cities experience disadvantages in education, income,

employment, and access to transportation. PX036, at 5-15; PX037, at 26-27. Several lay

witnesses testified that these pre-existing disadvantages interact with the new laws to make it

more difficult for these voters to vote during the shorter period for in-person absentee voting.

For example, eliminating weekend voting and reducing the number of days on which a clerk’s

office can accept in-person absentee ballots is problematic for a person whose job or class


58

schedule is less flexible. Tr. 1p, at 14:13-15:8, 75:8-25, 144:19-25; Tr. 3p, at 31:2-5.

Combined with the one-location rule, limiting hours leads to longer lines at clerk’s offices,

which in turn requires voters to be prepared to devote more time to voting. Tr. 1p, at 92:18-

96:3; Tr. 2, at 266:7-16. Having only one location creates difficulties for voters who lack

access to transportation.

Eliminating weekend voting also prevented groups from holding voting drives like

“Souls to the Polls”—an initiative that encouraged church congregations to vote in-person

absentee after church on Sunday. Tr. 1p, at 134:20-135:1; Tr. 2, at 183:14-17. But these

types of collateral effects only indirectly burden voters; impediments for groups trying to get

individuals to vote do not necessarily implicate the First Amendment. Cf. Voting for Am., Inc.

v. Steen, 732 F.3d 382, 388-96 (5th Cir. 2013) (“[W]e are unpersuaded that the smorgasbord

of activities comprising voter registration drives involves expressive conduct or conduct so

inextricably intertwined with speech as to require First Amendment scrutiny.”); Coal. for

Sensible & Humane Sols. v. Wamser, 771 F.2d 395, 400 (8th Cir. 1985) (acknowledging the

claim that “refusal to appoint qualified volunteers as deputy registrars restricts the

accessibility of voter registration facilities and thus indirectly constitutes an unconstitutional

infringement of the right to vote,” but refusing to “agree that there is a constitutional right to

greater access to voter registration facilities per se”).

The challenged provisions do not categorically bar individuals from voting. The state

has shrunk the window in which municipalities can offer in-person absentee voting, but it has

not closed that window completely. If the shortened period is not convenient for certain

voters, then they can vote using mail-in absentee voting or vote on election day. Regardless,

both sides’ evidence confirms that in-person absentee voting is still widely used, and its use


59

has increased over the last several years. As noted above, plaintiffs argue that without the

challenged provisions, in-person absentee voting would be increasing more. But their

anecdotal evidence is not sufficient to prove this assertion.

Before turning to step two of the Anderson-Burdick analysis, the court will address

defendants’ preliminary argument that there is no constitutionally protected right to cast an

absentee ballot. Defendants invoke Griffin v. Roupas, a case in which a group of working

mothers challenged Illinois’s refusal to let them vote absentee because they did not satisfy

any of the statutory prerequisites (out of the county, physical incapacity, religious

observance, etc.). 385 F.3d 1128, 1129 (7th Cir. 2004). The Griffin court rejected the idea

“that the Constitution requires all states to allow unlimited absentee voting,” id. at 1130,

which defendants implicitly contend should end the discussion. But this case is not about

Wisconsin’s outright refusal to allow in-person absentee voting. Rather, plaintiffs allege that

the state is denying them the opportunity to exercise a right that they already have. Put

differently, plaintiffs contend that by choosing to give its citizens the privilege of in-person

absentee voting, the state must administer that privilege evenhandedly. See Zessar v. Helander,

No. 05-cv-1917, 2006 WL 642646, at *6 (N.D. Ill. Mar. 13, 2006) (“[O]nce [states] create

such a regime, they must administer it in accordance with the Constitution.” (citing Paul v.

Davis, 424 U.S. 693, 710-12 (1976))). The court therefore rejects defendants’ argument that

plaintiffs’ challenge to the in-person absentee voting provisions does not implicate their

constitutional rights.

Defendants advance four justifications for the challenged in-person absentee voting

provisions. First, they contend that shortening the timeframe for in-person absentee voting

will allow the state to conduct uniform, orderly elections. Municipal clerks can better control


60

the process and manage staffing. Clerks can also guarantee that absentee ballots will be

available once in-person absentee voting starts (ballots are delivered at different times, which

means that a clerk’s office might have them available four weeks before an election one year,

but only two weeks before that same election in a different year).

Second, defendants contend that municipal clerks are busy during election season.

With the reduced window for in-person absentee voting, clerks have more time for other

tasks, such as conducting voting at residential care facilities, mailing absentee ballots, and

entering voter registrations. Clerks also have non-election-related duties, and it becomes

difficult to attend to them during business hours once in-person absentee voting begins. The

reduced window allows them to take care of other responsibilities before turning their

exclusive attention to voting.

Third, defendants contend that limiting in-person absentee voting to one location

saves money. More locations mean more staff, supplies, and security. Clerks are also able to

directly supervise the entire process because it is occurring in one location rather than across

the municipality.

Fourth, defendants contend that limiting in-person absentee voting to one location

avoids voter confusion by creating uniformity. Their concern is that voters might accidentally

believe that because they can vote in-person absentee at multiple locations, they can also vote

at multiple polling locations on election day.

With one exception, these interests do not justify the moderate burdens that the

challenged provisions impose. Alleviating the workload for clerks could be a sufficient reason

to limit the hours for in-person absentee voting. But the laws that the challenged provisions

replaced did not require municipal clerks to offer in-person absentee voting during the now-


61

eliminated days and times or at multiple locations. A clerk who wanted to retain control over

the process, save money by using less staff, or reduce the hours to have time to attend to

other duties could have chosen to do so under the old laws. Thus, any burdens on clerks that

the state was purporting to address were voluntarily undertaken, which undermines the

state’s interest in alleviating those burdens.

Furthermore, the state’s interest in establishing uniform times for in-person absentee

voting does not make sense because clerks can currently set whatever hours and days they

want for in-person absentee voting, within the parameters of the statutes. Contrary to

defendants’ assertion, Dkt. 206, at 65, the new laws do not actually “provide[] a set date

when in-person absentee voting begins.” Municipal clerks are still free to start in-person

absentee voting at different times, so long as it is not before the window opens. Under the

new law, smaller towns with part-time clerks can still conduct in-person absentee voting by

appointment only or on just a few days a week, see, e.g., Tr. 7a, at 166:21-177:14; PX161,

while larger municipalities can offer in-person absentee voting from 8:00 a.m. to 7:00 p.m.,

Monday through Friday, for two weeks, see, e.g., Tr. 2, at 265:2-12. Thus, the challenged

provisions do not actually create any consistency in when individual clerk’s offices offer in-

person absentee voting.

Requiring all municipalities to have one location for in-person absentee voting may

have a superficial appeal. But uniformity for uniformity’s sake gets the state only so far. In

2014, the number of adults per municipality in Wisconsin ranged from 33 to 433,496.

PX037, at 26. The state’s one-location rule ignores the obvious logistical difference between

forcing a few dozen voters to use a single location and forcing a few hundred thousand voters

to use a single location. There is simply no evidence that a one-location rule prevents voter


62

confusion, or that any confusion would be as widespread or burdensome as the types of

difficulties that voters face when having only one location at which to vote in-person

absentee.

Evidence at trial suggested that one of the justifications for the challenged in-person

absentee provisions was to “rein in” the big cities in the state, principally for political

purposes. See generally PX022. State legislators were concerned that smaller municipalities

could not keep up with the cities that had the resources to provide 60 to 70 hours of in-

person absentee voting each week. Id. Ensuring equal access to the franchise is certainly a

valid state interest, probably even a compelling one. But stifling votes for partisan gain is not

a valid interest. And Wisconsin’s approach in this instance was backward: rather than

expanding in-person absentee voting in smaller municipalities, the state limited in-person

absentee voting in larger municipalities. By doing so, the state has imposed moderate burdens

on the residents of those larger municipalities.

The court concludes that most of the challenged in-person absentee voting provisions

violate the First and Fourteenth Amendments for three reasons: the moderate burdens that

they impose are not justified by the state’s proffered interests; local control addresses the

needs of the communities; and the purported consistency is illusory.

The one exception is the state’s decision to prohibit in-person absentee voting on the

Monday before an election. The Wisconsin Municipal Clerks Association advocated for this

provision, emphasizing that the day before an election is usually very busy. Tr. 4p, at 123:8-

124:12; Tr. 7a, at 158:22-160:9. The GAB advocated for this provision as well. Tr. 5a, at

102:2-4. The state’s interest in preventing clerks from incurring additional responsibilities on

the day before an election, even voluntarily, is considerably more important than during the


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weeks leading up to the election. Clerks cannot complete some of their preparation for

election day until all absentee ballots are cast, and so allowing in-person absentee voting right

up through the eve of the election necessarily prevents clerks from completing those tasks

until after hours. Prohibiting in-person absentee voting on the day before an election allows

clerks to focus on preparing for the election, go home at a reasonable hour, and be as sharp as

possible for election day, which will itself be a long day. The state’s interest in prohibiting in-

person absentee voting on the day before an election outweighs the moderate burdens that

this measure imposes. Thus, the court concludes that this one provision does not violate the

First and Fourteenth Amendments.

2. Requiring documentary proof of residence and eliminating corroboration

Wisconsin requires voters to provide documentary proof of residence when registering

to vote. Wis. Stat. § 6.34(2). Before Act 23, passed in 2011, voters could use corroboration

to prove their residence. And before Act 182, passed in 2014, voters needed to provide

documentary proof of residence only when registering to vote within 20 days before an

election. Plaintiffs challenge both the requirement of documentary proof of residence and the

elimination of corroboration. These are two aspects of an overall challenge to what Wisconsin

requires from voters who want to register. Plaintiffs contend that Wisconsin’s proof of

residence requirement burdens Wisconsin voters, particularly young voters who live with

their parents, elderly voters, economically disadvantaged voters who live with friends or

relatives, women voters whose residency documents are in their husbands’ names, and

minority voters who suffer from higher rates of residential instability.14

14 Plaintiffs also contend that Wisconsin’s registration requirements have effectively put an

end to voter registration drives. As explained above, the court’s primary task under Anderson-

Burdick is to evaluate the burden that a given provision places on voters. “[T]here is nothing


64

The court finds that the challenged registration provisions impose only slight burdens

on voters.

Between 2006 and 2012, about 35,000 Wisconsin citizens used corroboration to

register to vote. PX038, at 39. But plaintiffs have adduced only anecdotal evidence to

support their contention that the elimination of corroboration imposes a severe burden. They

have not proven that minorities, Democrats, or young voters experience any widespread or

insurmountable difficulties registering to vote on account of this change in the law. Indeed,

plaintiffs’ expert conceded that he did “not have specific data on how many people were

unable to register because they were no longer permitted to use corroborating witnesses to

prove residency.” Id. The same is true of plaintiffs’ evidence about voters who could not

provide documentary proof of residence: although plaintiffs have identified examples of

voters who were turned away at the polls, there is no evidence about how prevalent the

problem is, or about how many voters cannot obtain documentary proof of residence with

reasonable effort.

Voters in Wisconsin can satisfy the proof of residence requirement with a little

planning. For example, rather than trying to register on election day, voters can contact their

municipal clerk beforehand, when there is still time to update mailing addresses for bank

statements, utility bills, or other acceptable forms of proof of residence. See PX490, at 5-6

(voter tried to use corroboration at the polls); PX045, at 3 (same); PX059, at 1 (183 people

not able to register at polls because they did not have proof of residence). Wisconsin also

‘inherently expressive’ about receiving a person’s completed application and being charged

with getting that application to the proper place,” Voting for Am., Inc., 732 F.3d at 392

(citations omitted), which means that the First Amendment would not protect a group’s mere

desire to register voters. Plaintiffs’ evidence regarding voter registration drives is mostly

tangential to the main issues in this case.


65

allows voters to present electronic copies of their proof of residence documents (e.g., online

bank statements or utility bills), which eliminates the need to wait for a document to arrive

by mail.

At least some clerks have even identified a solution for voters who are simply unable

to obtain the necessary documentation. Under Wis. Stat. § 6.34(3)(a)11., a person can

register to vote by providing a document issued by a unit of government. Thus, if a voter

provides a municipal clerk with the address at which the voter wants to register, the clerk can

send the voter a letter and that letter then becomes a government document that the voter can

use to register. See, e.g., Tr. 1p, at 163-65; Tr. 2, at 301-02. This system is not much different

from the one that Wisconsin used to have. When a voter registered, the clerk’s office would

send him or her a postcard to confirm the registration address. If the card came back as

undeliverable, then the clerk’s office knew that there was a problem; if the card did not come

back, then the clerk’s office considered the registration verified. The current laws merely add

the step that a voter must return to the clerk’s office to verify receiving the document.

The lone context in which proof of residence requirements and the elimination of

corroboration can be more problematic is election day registration. An unregistered voter who

lacks easy access to documentary proof of residence and decides on election day that he or

she will vote may be unable to register without corroboration. The specific burdens on voters

who plan to register on election day are still slight. With a little advanced planning, even a

voter who lacks access to standard methods for proving residence can register to vote on

election day.

For many voters, registering to vote will not be a regular event: once registered, a voter

can continue voting under that registration until he or she moves. And even for voters who


66

move often, if they complete the registration process once, they will be prepared for it in the

future. Wisconsin law allows voters to choose from an array of documents to prove residence,

and this flexibility means that the loss of corroboration does not impose a severe burden on

the right to vote. It may be inconvenient to plan ahead to register at the polls on election

day, particularly without corroboration, and it may be cumbersome to update account

information with a bank or utility company. But these activities are no more burdensome

than those that the Supreme Court has already considered. See Crawford, 553 U.S. at 198

(“For most voters who need them, the inconvenience of making a trip to the BMV, gathering

the required documents, and posing for a photograph surely does not qualify as a substantial

burden on the right to vote, or even represent a significant increase over the usual burdens of

voting.”).

Defendants justify the registration requirements as ensuring that voters actually reside

in the municipalities where they register to vote. Asking for proof of residence, and not

accepting corroboration, also helps prevent fraud. Defendants adduced no actual evidence of

fraudulent use of corroboration though. See, e.g., Tr. 7a, at 118:20-119:6 (voter attempted to

pressure other voters to corroborate his residence but they all refused).

These interests justify the slight burdens that the challenged registration provisions

impose. Residence is a bona fide voter qualification. Plaintiffs are correct that defendants

have not adduced evidence of a genuine threat or history of registration-related fraud. But

“[l]egislatures . . . should be permitted to respond to potential deficiencies in the electoral

process with foresight rather than reactively, provided that the response is reasonable and

does not significantly impinge on constitutionally protected rights.” Munro v. Socialist Workers

Party, 479 U.S. 189, 195-96 (1986). Pursuant to Frank and Crawford, states can anticipate


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and guard against fraudulent voting, and public confidence in elections is a legitimate state

interest.15 Regardless, a voter’s residence in a particular municipality is a qualification for

voting in that municipality. The state has an interest in making sure that only qualified

voters are participating in elections, and the proof of residence requirement is directly linked

to that goal.

The court concludes that the challenged registration requirements do not violate the

First and Fourteenth Amendments.

3. Changing how students can use “dorm lists” to register

Before Act 23, college and university students could register to vote use their student

IDs and a “dorm list” that their institutions provided to municipal clerks.16 The legislature

has changed this provision by requiring that dorm lists also indicate whether students are

U.S. citizens. This change requires colleges and universities to provide information that the

Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, prevents them from

disclosing without consent. PX435, at 34-35.17 Rather than obtaining consent to provide this

information, most colleges and universities have stopped providing dorm lists to municipal

clerks. PX436, at 10.

15 Frank and Crawford dealt with the requirement of presenting ID at the polls on election

day. Presenting documentary proof of residence is the functional equivalent of a photo ID for

the registration side of elections.

16 A dorm list is “a certified and current list of students who reside in housing sponsored by

the university, college, or technical college.” Wis. Stat. § 6.34(3)(a)7.b.

17 FERPA permits colleges and universities to release only “directory information” without

parental consent. This information includes “the student’s name, address, telephone listing,

date and place of birth, major field of study, participation in officially recognized activities

and sports, weight and height of members of athletic teams, dates of attendance, degrees and

awards received, and the most recent previous educational agency or institution attended by

the student.” 20 U.S.C. § 1232g(a)(5)(A).


68

The court finds that the dorm list provision places only a slight burden on student

voters.

The dorm list provision is a special accommodation that allows college and university

students to prove their residences with student IDs. This option is in addition to the standard

options that all voters have. Act 23 pulls back only some of the special dispensation that the

legislature gave students. The challenged provisions do not deny students the ability to

register outright. Students can also register using a student ID and a fee receipt showing that

they paid tuition in the last nine months. See Wis. Stat. § 6.34(3)(a)7.a. And of course,

students can register by presenting any of the other listed documents to prove residence.

Plaintiffs did not present evidence showing how often students used dorm lists before Act 23,

or how many students are now unable to register without the option. Without this sort of

proof, plaintiffs cannot demonstrate that any burden on student voters is more than slight.

Act 23 nevertheless burdens student voters who want to use their student IDs as proof

of residence to register because it conditions their registration on proof of citizenship, which

is something that no other voter must present to register. When any voter registers in

Wisconsin, including a student voter, the voter must sign a statement certifying that he or

she is a U.S. citizen. See DX101. But that is it. Voters do not need to actually prove that they

are citizens. True, the primary burden that this provision imposes is on colleges and

universities, which must provide compliant dorm lists. But if colleges and universities are

unwilling to provide these lists, then for all practical purposes, Act 23 has taken away a

method through which students can register to vote.

Defendants justify the provision by arguing that U.S. citizenship is a qualification for

voting in Wisconsin, see Wis. Const. art. III, § 1, and so “it makes sense to confirm it.”


69

Dkt. 206, at 87.18 That is a weak justification for two reasons. First, none of the state’s other

methods for proving residence require voters to “confirm” their U.S. citizenship beyond

signing a citizenship certification on the registration form. Students sign this certification too.

Defendants do not explain how this certification procedure, which apparently satisfies the

state’s interest in confirming citizenship for the overwhelming majority of non-students who

register to vote, is insufficient in the context of student voters. Second, even if the state is

particularly worried about non-citizen students voting—and at trial, the state presented no

evidence of such a problem—the challenged provision does not allay that concern. Non-

citizen students could easily skirt the requirement of demonstrating citizenship by using one

of the other methods for proving residence.

Although the changes to using a dorm list to register impose only slight burdens, the

state has not offered even a minimally rational justification for the law. The court therefore

concludes that this provision violates the First and Fourteenth Amendments.

4. Eliminating statewide SRDs and eliminating SRDs and registration

locations at high schools

Plaintiffs challenge the provisions of Act 23, passed in 2011, that eliminated statewide

SRDs and the provisions of Act 240, passed in 2012, that eliminated the requirement that

high schools accept registrations from staff and enrolled students.

The court finds that the challenged SRD and high school registration provisions place

only slight burdens on voters.

18 Defendants also argue that students have other options for proving residence. But that is

not a justification for the law; as explained above, it is a reason for concluding that the law

imposes only slight burdens on student voters.


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Most of the burdens that plaintiffs identify from these laws do not fall directly on

voters. For example, plaintiffs contend that eliminating statewide SRDs hinders individuals

who register voters during off-site registration drives. See, e.g., Tr. 1p, at 7:20-8:25 (Citizen

Action employee cannot register voters outside the municipalities in which she is an SRD),

187:15-188:6 (college student cannot be a statewide SRD); Tr. 3a, at 101:1-102:21

(organizations cannot conduct voter-registration drives). Plaintiffs also contend that without

statewide SRDs, more voters will be forced to register at a municipal clerk’s office or at the

polls, which will cause congestion and additional work for clerks and poll workers. Tr. 2, at

327:14-20. The Anderson-Burdick framework does not focus on these burdens; rather, the

relevant issue is the nature and severity of the burdens that fall on voters and on the right to

vote.

The real burden for voters is the loss of potentially convenient options for registering

through a statewide SRD or at a high school. But plaintiffs have not adduced evidence of

how widespread or significant this problem is. No testimony or expert opinion established

how many voters want to register through statewide SRDs or at high schools and are unable

to do so. Nor did any testimony establish how many voters are unable to register at all

without these options. The closest that plaintiffs came was an anecdote about one

municipality not appointing any SRDs in 2011 and 2012, which meant that all voters had to

register through the clerk’s office those years. PX490, at 3. Yet that burden was principally

the result of that particular clerk refusing to appoint any SRDs. Plaintiffs do not argue that

all, or even many, other municipalities refuse to appoint SRDs.

Defendants justify these provisions by arguing that statewide SRDs make mistakes

that municipal clerks have to spend time correcting. Tr. 4p, at 133:3-20 (continuous


71

difficulties in municipalities across the state with untimely or incorrect registrations from

SRDs); Tr. 7a, at 121:2-7 (statewide SRDs submit incomplete forms, “which complicates

things and requires follow-up”), 170:6-19 (same); Tr. 8p, at 133:8-12 (GAB auditor had

problems with legibility and missing information from statewide SRDs). Defendants also

presented evidence that students and staff did not use high school registration locations that

frequently, and that high school SRDs also had problems submitting registrations. Tr. 4p, at

130:18-23 (problems with high school SRDs), 131:8-17 (less than 10 registrations per year

from a high school), 132:3-9 (high school students like to register on election day or in the

clerk’s office because “it’s a Facebook picture-taking time”); Tr. 7a, at 169: 11-19 (clerk has

never received a registration from a high school and has not heard complaints about

eliminating high schools as registration locations). Although this evidence was not conclusive

for every municipality in the state, it supported defendants’ assertion that voters did not use

high school registration locations that much.

Plaintiffs counter these concerns by pointing out that they came only from small

municipalities. Clerks from larger municipalities supported having statewide SRDs. Tr. 1p, at

88:3-8. Plaintiffs also argue that even if statewide SRDs make mistakes, these lead municipal

clerks to engage with voters to correct those mistakes, and so the net result is beneficial.

Plaintiffs’ criticisms are not persuasive: a state certainly does not have to stand by and watch

problems fester in smaller municipalities just because one or two larger municipalities do not

have, or can easily overcome, those same problems. The legislature was entitled to conclude

that the problems with statewide SRDs outweighed the benefits.


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Defendants also justify eliminating statewide SRDs on the grounds that it gave clerks

direct control over the SRDs in their municipalities.19 The state supervised statewide SRDs,

which made it difficult for municipal clerks to revoke or train SRDs when problems occurred.

Tr. 4p, at 132:10-24. The benefits of local control led the Wisconsin Municipal Clerks

Association to support eliminating statewide SRDs. Id. Now, clerks train and supervise each

SRD in their municipality, which allows them to address issues quicker and more efficiently.

The state’s interests in eliminating mistakes from high school and statewide SRDs,

and in giving municipal clerks the ability to directly manage the SRDs with whom they work,

justify the slight burdens that the challenged provisions impose. There is nothing stopping an

individual from registering to be an SRD in as many municipalities as he or she likes. And

alternative registration options alleviate virtually any inconvenience to voters who would

benefit from being able to register with a statewide SRD.

The court concludes that the challenged SRD and high school registration provisions

do not violate the First and Fourteenth Amendments.

5. Preempting Madison’s landlord ordinance

Act 76, passed in 2013, overrode an ordinance that Madison passed in July 2012

requiring landlords to distribute voter registration forms to new tenants. Plaintiffs contend

that the act burdens the right to vote by making it harder to register.

The court finds that the landlord provision imposes only a slight burden on voters.

19 The court notes that for this issue, the parties have switched sides on the importance of

local control. Plaintiffs—for whom local control was so important in the context of in-person

absentee voting—now appear to want statewide control, and defendants—for whom

uniformity was so important in the context of in-person absentee voting—now argue that

local control is vital.


73

There is some evidence that Madison’s ordinance was an effective tool for reaching

voters who rented their homes. See, e.g., Tr. 3a, at 24:17-25:4. In the short time that

Madison’s ordinance was in effect, Madison registered at least 500 voters who submitted the

forms that their landlords had given them. Id. at 168:4-9. That was right before the

November 2012 presidential election.20 Madison is also home to a large student population,

with many students renting their homes.

As with other challenged provisions, plaintiffs have not adduced evidence of a

significant or widespread burden. The state statute does not preclude landlords from

distributing materials; it just prevents municipalities from requiring that they distribute

materials. Even assuming that in practice the law means that no landlord will provide forms,

the only real burden that voters experience is having to obtain registration forms elsewhere—

the rest of the steps for registering are the same. At most, the state has denied Madison

voters a convenience. Plaintiffs have not adduced evidence of voters in Madison (or anywhere

in Wisconsin) who did not receive registration forms from their landlords and were unable to

register to vote.

Defendants justify the law on the grounds that requiring landlords to provide voting

materials creates the possibility for voter confusion. At trial, two municipal clerks opined that

landlords, who are not trained election officials, could distribute outdated materials or

inaccurate information. Tr. 4p, at 136:22-137:20; Tr. 7p, at 19:10-20:7. This testimony was

speculative; defendants did not introduce evidence that landlords have actually distributed

20 The municipal clerk could not remember if it was the 2010 or 2012 election. But the

ordinance went into effect in July 2012. See Madison, Wis., Code of Ordinances, § 32.06(5).


74

the wrong information. But the potential for confusion is at least plausible, which makes the

state’s interest in avoiding it a reasonable one.

The state has an interest in ensuring that voters receive the correct information about

where and how to register to vote. Here, the possibility that landlords will provide outdated

or inaccurate information seems minimal, and defendants’ justification for overriding

Madison’s ordinance is relatively weak. If the statute more than minimally burdened the

right to vote, then it probably would not withstand constitutional scrutiny. But defendants

have put forth a rational explanation for it, and that explanation is sufficient to justify the

slight burden that the law imposes.

The court concludes that the landlord provision does not violate the First and

Fourteenth Amendments.

6. Increasing the durational residency requirement

Act 23, passed in 2011, increased Wisconsin’s durational residency requirement from

10 days to 28 days. This means that residents who move within Wisconsin fewer than 28

days before an election have to vote in their former municipalities. And residents who move

into Wisconsin from out-of-state fewer than 28 days before an election cannot vote in

Wisconsin at all (except for the offices of president and vice president, pursuant to Wis. Stat.

§ 6.15(1)).

The court finds that the increased durational residency requirement imposes a

moderate burden on voters in Wisconsin, particularly for populations that tend to be more

transient or lack access to transportation.

“Durational residence requirements completely bar from voting all residents not

meeting the fixed durational standards. By denying some citizens the right to vote, such laws


75

deprive them of a fundamental political right, preservative of all rights.” Dunn v. Blumstein,

405 U.S. 330, 336 (1972) (citations, internal quotations, and alterations omitted). Plaintiffs

have adduced evidence from which the court can infer that a longer residency requirement

leads to increased difficulties for certain types of voters. That is an important consideration

because the court must evaluate the burdens that the law imposes on voters who cannot

comply with it. See Crawford, 553 U.S. at 198. Here, the burden is significant. A voter who

does not satisfy the durational residency requirement cannot vote unless he or she: (1) travels

back to his or her former municipality; or (2) votes absentee by mail. These options reduce

the burden that the law imposes, but they do not negate it entirely.

Plaintiffs seek a return to the old 10-day rule, presumably because the rule does not

impermissibly burden the right to vote. Thus, their contention is really that the increase from

10 days to 28 days burdens the right to vote. Given the specific burdens at issue, plaintiffs’

evidence of problems with the overall durational residency requirement, see e.g., Tr. 1p, at

44:19-45:6; PX055, at 2; PX059, at 1, is not particularly relevant.

Plaintiffs have not adduced direct evidence of the burdens that the change from 10

days to 28 days imposes. They have not identified how many voters would be able to comply

with a 10-day rule but not with a 28-day rule. See Tr. 1p, at 44:9-14 (Citizen Action

employee unable to identify how many voters were affected by the increase); Tr. 2, at

292:17-25 (municipal clerk testified to an unspecified “increase”); PX490, at 18 (one voter

affected by the increase).21 Nor could plaintiffs’ experts pin down how widespread the

problem is. For example, Dr. Lichtman presented 2010 census data to show that only 1.6

21 Defendants offered anecdotal evidence that not very many voters fall into the window

between 10 and 28 days. See, e.g., Tr. 7a, at 122:4-10, 172:22-173:6. But this evidence, too,

is inconclusive.


76

percent of the white population had moved into the state during the previous year, compared

2.1 percent of African Americans and 2.4 percent of Latinos. PX036, at 47. For in-state

moves, 12.5 percent of white residents had lived in a different house in the previous year,

compared to 26.2 percent of African Americans and 19.5 percent of Latinos. Id. at 41. But

this information covered the entire year and was not limited to eligible voters.

As with many of their other claims, plaintiffs attempted to indirectly prove the nature

and severity of the burdens that the increased durational residency requirement creates.

Voters who move more often have to confront residency requirements more often. Wisconsin

has a significant population of African American and Latino voters, who are more likely to be

transient than white voters are. PX036, at 40-41; PX037, at 27. Thus, the court can infer

that the durational residency requirement will impose considerable burdens on a class of

voters within the state that will have difficulty complying with the requirement.

For voters who move into Wisconsin from another state, the 28-day residency

requirement disenfranchises them from state and local elections in Wisconsin (although they

can vote for president and vice president). Voters who move within the state at least have the

option of voting in their former municipalities. But that option is realistically available only

to those who can travel. Although voting absentee by mail can alleviate some of the burden

for voters who cannot travel, that option presents its own obstacles. There is considerable

public distrust of voting absentee by mail, the process is cumbersome and difficult to

understand for some voters, and it presents added security challenges for municipal clerks.

Tr. 1p, at 76:13-77:24; Tr. 2, at 114:18-117:10; Tr. 4p, at 158:7-159:14.

On top of the burdens of actually voting in a former municipality, the durational

residency requirement presents unique registration problems as well. Voters who must


77

register in their former municipalities may no longer have documents to prove their

residence. Tr. 1p, at 79:16-22; Tr. 2, at 290:3-291:2. And even if a voter has adequate

documentation, the registration form requires signing a certification that the voter has

“resided at the [former] residential address for at least 28 consecutive days immediately

preceding this election, with no present intent to move.” DX101, at 1. Signing this

certification puts voters in an uncomfortable position because the form states that

“[f]alsification of information on this form is punishable under Wisconsin law as a Class I

felony.” Id.; see also Tr. 1p, at 79:7-15; Tr. 2, at 290:3-291:2. Also, for voters who sign the

form and are able to register, there may still be confusion when the municipal clerk sends a

confirmation postcard to confirm the new registration at the old address and the card is

returned as undeliverable. PX436, at 24.

Defendants justify the longer residency requirement as preserving election integrity,

safeguarding voter confidence, and avoiding voter confusion. Specifically, the requirement

serves these interests by preventing voter “colonization,” which “involve[s] voting by

nonresidents, either singly or in groups. The main concern is that nonresidents will

temporarily invade the State or county, falsely swear that they are residents to become

eligible to vote, and, by voting, allow a candidate to win by fraud.” Dunn, 405 U.S. at 345.

Defendants also contend that the requirement prevents “party raiding,” “whereby voters in

sympathy with one party designate themselves as voters of another party so as to influence or

determine the results of the other party’s primary.” Rosario v. Rockefeller, 410 U.S. 752, 760

(1973).

Defendants’ purported interests in the 28-day durational residency requirement do

not justify the severe burdens that the provision imposes for several reasons. First, defendants


78

did not introduce any evidence at trial of a genuine threat of colonization or party raiding.

Nor have defendants explained how a durational residency requirement prevents party

raiding, which is a problem that involves voters who are already registered.

Second, even if the threat of colonization motivated the state’s actions, defendants

failed to address the difference between a durational residency requirement in the abstract,

and increasing that requirement from 10 days to 28 days. The state’s interests certainly

justify some sort of residency requirement. See Marston v. Lewis, 410 U.S. 679, 680 (1973)

(per curiam) (upholding a 50-day rule and holding that “[s]tates have valid and sufficient

interests in providing for some period of time—prior to an election—in order to prepare

adequate voter records and protect its electoral processes from possible frauds”). But

defendants have not explained how a 28-day rule serves these interests better than a 10-day

rule does. The court is not persuaded that increasing a durational residency requirement by

18 days actually inhibits colonization, raiding, or fraud, at least not to the extent necessary to

justify the burdens that the increase imposes on otherwise-qualified voters. To the contrary,

the requirement appears to simply make it harder for otherwise eligible voters to vote. It is

also somewhat inconsistent with allowing election day registration, which lets voters decide to

vote at the last minute.

The state also advances a few practical points, which go toward avoiding voter

confusion. For example, a GAB official testified that “the justification put forward to support

the 28-day residency is partly that it was maybe more consistent with what some other states

had.” Tr. 8p, at 41:16-18. Indeed, 25 states and the District of Columbia have a durational

residency requirement, and the average length is 28.8 days. DX001, at 23. In 77 percent of

those states, the requirement is 30 days. Id. The shortest requirement is 20 days. Id. at 24.


79

Consistency with other states is a superficial rationale that does not justify burdening (or

completely disenfranchising) voters within the state who cannot comply with the

requirement. Nor did defendants present evidence that there were such persistent problems

with registration fraud (or any problems, for that matter) that the state needed to lengthen its

durational residency requirement.

Defendants also argue that the increased requirement allows voters more time to

gather documents and plan for voting. For example, a voter who moves to a new district 11

days before an election might not have enough time to obtain documentary proof of the new

residence, and a voter who moves 9 days before an election might not have enough time to

request an absentee ballot from his or her former municipality. Any such convenience is

utterly speculative—defendants did not identify a single voter who benefitted from the

increased time in which to gather registration documents. Regardless, the rule adds

considerable inconvenience. As one municipal clerk testified during trial, the rule is

cumbersome for a person who moves 20 days before an election and is able to gather the

necessary registration documents. Tr. 7a, at 140:16-142:1. Thus, defendants’ convenience-

based justification is not persuasive.

The court concludes that the state’s change to the durational residency requirement

violates the First and Fourteenth Amendments.

7. Establishing a zone for election observers

Act 177, passed in 2014, established a statutorily prescribed zone in which election

observers must stand at the polls to oversee voting on election day. The zone had to be

between three and eight feet away from the table at which voters announced their names or

registered to vote. Wis. Stat. § 7.41(2). This act overrode an existing GAB rule that allowed


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observers to be between 6 and 12 feet from the location where voters were announcing their

presence and registering to vote. Part of the impetus for Act 177 was that a select group of

election observers complained that officials were invoking the GAB’s rule to keep them too

far away to be able to hear and see events at polling places. See PX240; PX441, at 14-15.

Plaintiffs allege that the state burdened the right to vote by moving observers closer to voters

and facilitating harassment and intimidation.

The court finds that the provisions governing where election officials can position

election observers imposes only a slight burden on the right to vote.

Although the executive director for Milwaukee’s Election Commission confirmed that

“99.5% of election observers respect the state’s election observer rules,” Tr. 1p, at 112:16-18,

some municipalities have had problems with disruptive, harassing, and intimidating

observers. These problems are prevalent in high-minority areas like Milwaukee and Racine.

PX045, at 3; PX436, at 19. Besides intimidating voters, having observers close to poll

workers implicates voter privacy concerns: depending on the types of documents that a voter

presents for registering or as identification, an observer could be able to see financial

statements, social security numbers, or other personal information. Overly zealous election

observers also potentially slow down poll workers and cause delays at the polls. Plaintiffs

contend that these problems would not exist, or would at least not rise to the level of

constitutional violations, under the GAB’s former 6-to-12-foot rule.

Despite the evidence of problems with some observers, plaintiffs have not shown that

Act 177 imposes a significant burden on voters. The court does not doubt that election

observers can create consternation for many voters. But Wis. Stat. § 7.41(2) gives municipal

clerks and chief election inspectors discretion to create an observation area at each polling


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place; it does not require that they place observers closer than the GAB rule allowed. The

court is not persuaded that the statute imposes any significant burden on voters. Local

election officials have the discretion, under the statute, to manage the position of observers.

In the anecdotes that plaintiffs presented at trial, problems with election observers

occurred when poll workers or chief inspectors failed to exercise the authority that the state

gave them to control or even remove observers. Problems also occurred when observers were

closer than three feet, which was not a situation that the state even allowed, let alone

imposed on voters. See, e.g., Tr. 1p, at 85:4-6 (“Well, to be clear, that wasn’t related to the

space, the space issue; that was just related to the conduct of the observer.”). Also, plaintiffs’

evidence of problems consisted of incidents that occurred before the state passed Act 177,

which undermines their assertion that the new law burdens the right to vote.

Plaintiffs’ challenge to Wisconsin’s election observer law is essentially dissatisfaction

with the choices that clerks or chief inspectors have made, or with their failure to address

unruly observers. By establishing a range in which officials can place observers, the state has

arguably made it possible for others to impose burdens on voters. But plaintiffs have failed to

prove that election officials consistently exercise their authority under Wis. Stat. § 7.41(2) in

a way that impedes or intimidates voters. At most, then, the law imposes only a slight burden

on the right to vote.

Defendants offer a compelling justification for giving municipal clerks and chief

election inspectors discretion to establish an observation zone. “States may, and inevitably

must, enact reasonable regulations of parties, elections, and ballots to reduce election- and

campaign-related disorder.” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997).

Here, the state balanced the right that observers have to be present at the polls with the


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rights that voters have to keep their personal information private and with the flexibility that

poll workers need to conduct efficient and fair elections. Rather than setting a one-size-fits-all

rule, the legislature created guidelines to allow local municipalities to organize and control

their polling places. Flexibility is important because not all polling places can accommodate a

uniform distance. Tr. 2, at 286:17-289:22; Tr. 4p, at 139:18-140:2. And the range that the

legislature selected was not unreasonable: three feet may be necessary to accommodate

elderly observers or cramped polling places; eight feet allows observers to see and hear

without interfering with poll workers.

To be clear, the court does not condone harassment or intimidation by election

observers, at any distance from registration or announcement tables. The state would be well

served to impress upon municipal clerks and chief inspectors the importance of managing

election observers. And those election officials must in turn exercise their authority to protect

voters from unruly observers. As far as Act 177 is concerned, however, the state’s justification

for the act outweighs any burdens that it creates.

The court concludes that the challenged election observer provisions do not violate

the First and Fourteenth Amendments.

8. Eliminating straight-ticket voting

Act 23, passed in 2011, eliminated straight-ticket voting: voters must now select

individual candidates on their ballots. Plaintiffs contend that this burdens the right to vote,

particularly for voters with lower levels of educational attainment.

The court finds that this provision creates only a slight burden on the right to vote,

even among populations with lower levels of educational attainment or who have less time to

spend voting.


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The burdens that plaintiffs identify include longer lines at the polls (because voters

must mark an entire ballot) and increased confusion and likelihood of mistakes. But there

was limited evidence about whether the elimination of straight-ticket voting caused these

burdens and, if so, to what extent. Dr. Lichtman wrote in his report that “[t]he elimination of

straight-ticket voting in Act 23 also has an adverse impact on waiting time since it makes

voting lengthier for those who would otherwise use this option.” PX036, at 44. Yet

Dr. Lichtman did not identify evidence to support this assertion or indicate how much delay

the elimination of straight-ticket voting actually caused. As for lay witnesses, plaintiffs

elicited testimony that the lack of straight-ticket voting could confuse voters. See, e.g., Tr. 1p,

at 82:17-83:3. But the actual evidence of confusion involved voters who remembered having

the option in the past and asking about whether it still existed. PX490, at 22-23. Beyond

that, straight-ticket voting was mostly a convenience, and plaintiffs did not adduce evidence

that the lack of straight-ticket voting deterred anyone from voting.

Defendants’ first justification for eliminating straight-ticket voting is that it was

joining a national trend. As another district court recently explained, that argument does not

get the state very far. Mich. State A. Philip Randolph Inst. v. Johnson, No. 16-cv-11844, 2016

WL 3922355, at *8 (E.D. Mich. July 21, 2016) (“The fact that some other states do not

allow straight party voting changes none of the facts that are before this Court. Furthermore,

and more importantly, the behaviors of other states are irrelevant to the question of

constitutionality. If the Ohio Legislature successfully instituted poll-taxes and literacy tests

without challenge, it would not change the fact that poll-taxes and literacy tests are still

clearly unconstitutional burdens on the right to vote.” (original emphasis)).


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Defendants also argue that eliminating straight-ticket voting decreases the chance of a

voter selecting a straight-ticket option and then voting for candidates on the rest of the

ballot. This type of over-voting would invalidate some or all of a voter’s choices. Wis. Stat.

§ 7.50(1)(b). Defendants did not introduce evidence that these types of problems were

prevalent, although they seem no more or less likely than the confusion that some voters

might experience after not seeing a straight-ticket option that they are used to. Nevertheless,

defendants’ justification is reasonable.

Finally, defendants argue that eliminating straight-ticket voting encourages voters to

become more informed about candidates or issues, and it ensures that voters do not

accidentally overlook items on a ballot. Defendants did not introduce evidence of how often

these problems occur, but the danger is there: in elections with referenda or non-partisan

races, a voter who uses a straight-ticket option could overlook some items on a ballot. Tr. 7p,

at 20:8-21:23. This justification is reasonable.

The court concludes that the straight-ticket provision does not violate the First and


9. Prohibiting clerks from sending absentee ballots by fax or email

Act 75, passed in 2011, prevents municipal clerks from faxing or emailing absentee

ballots, except to military or overseas electors. Plaintiffs contend that this provision

unjustifiably burdens voters who are traveling but who do not qualify as overseas electors.

The court finds that this provision places a moderate burden on voters who are

traveling, particularly if they are outside of the country or in locations with unreliable mail

delivery.


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Before Act 75, some municipalities sent hundreds of ballots by fax or email. Tr. 1p, at

87:8-12; Tr. 2, at 332:11-22. Now, without the option for electronic ballots, absentee voters

must rely on mail service. This is particularly problematic for students or researchers who are

abroad in remote areas, but it also affects domestic travelers, especially for elections in which

ballots are not finalized until close to election day. Tr. 2, at 329:8-332:10; Tr. 7a, at 144:25-

145:23; PX491, at 6-9. In at least some cases, voters who cannot receive ballots by fax or

email are simply unable to vote. Although voters are able to request their ballots by fax or

email, that does them little good if the mailed ballot itself does not ever arrive, or if it arrives

too late for a voter to return it in time to be counted.

Defendants justify the law by contending that faxing or emailing ballots requires

significant time and energy from municipal clerks. They also contend that there is a higher

chance of human error because clerks have to re-create electronically returned ballots in paper

form on election day, and that this process invades the voter’s privacy because those officials

will see the voter’s selections. And a voter who receives an electronic copy of a ballot could

forward that ballot to other voters, who might incorrectly believe that they can vote with it.

According to defendants’ expert, Dr. Hood, these considerations supported the state’s

decision to do away with faxing and emailing ballots to most absentee voters. DX001, at 19.

As to the specific instances in which voters have had difficulty with receiving or sending

absentee ballots by mail, defendants contend that voters can overcome these difficulties with

planning, and they observe that electronic methods for sending ballots may not be any more

reliable than using mail.

Defendants’ justifications are not persuasive. Wisconsin already requires municipal

clerks to send ballots by fax or email to military voters and to voters who are permanently


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overseas, which undercuts most of defendants’ justifications. At trial, defendants principally

relied on the testimony of two municipal clerks to defend this law. See Tr. 4p, at 141:12-

142:25; Tr. 7a, at 116:11-118:8. These clerks testified that electronic ballots can create a

little more work before and on election day. Defendants did not present evidence of

widespread opposition to sending ballots by fax or email. Indeed, other election officials

could not see reasons for eliminating the practice, or testified that it did not create significant

logistical problems. Tr. 2, at 332:23-333:4 (“It took a few minutes to compile the email.”),

333:15-17; PX435, at 48. From a practical perspective, the court simply does not credit the

assertion that in the year 2016, printing a paper ballot and instructions, putting them into an

envelope, and physically sending the envelope overseas is less burdensome on municipal

clerks than compiling a PDF and sending an email. This is especially so because clerks are

already sending ballots electronically to military and overseas electors.

Defendants also overstate their concerns about privacy, security, and errors. A voter

who chooses to submit an absentee ballot electronically is voluntarily giving up some of the

privacy that a mailed ballot would have. That is the voter’s problem, not the state’s problem:

a voter who is concerned about privacy can simply avoid voting by fax or email. As for

defendants’ concern that voters may forward electronic copies of absentee ballots, they

presented only one example of this occurring. There is no reason to think that it is a

widespread problem. Even if it occurs regularly, a municipal clerk can correct the issue with

an email to the voter who submitted a forwarded ballot. Finally, even crediting defendants’

assertion that there is a higher chance for human error when re-creating an electronically

received ballot in paper form, that chance is minimal because two election officials perform


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the task together. Defendants did not adduce evidence that mistakes ever actually happened,

or that they happen with any frequency.

If the challenges of sending and receiving electronic ballots are as severe as defendants

make them out to be, then the state can make the practice optional instead of mandatory.22

But the state’s justifications for flatly prohibiting clerks from sending ballots by fax or email

do not outweigh the moderate burdens that the challenged provision places on voters who are

affected by it.

The court concludes that the provision prohibiting municipal clerks from sending

absentee ballots by fax or email violates the First and Fourteenth Amendments.

10. Limiting when clerks can return absentee ballots to voters

Act 227, passed in 2012, prevents clerks from returning a received absentee ballot to a

voter unless the ballot is damaged or has an incomplete certification. Plaintiffs contend that

these provisions place undue burdens on voters with lower levels of educational attainment,

who tend to be African Americans and Latinos.

The court finds that the provisions governing when clerks can return absentee ballots

to voters place only a slight burden on the right to vote.

After Act 227, municipal clerks cannot return absentee ballots to voters to correct

mistakes such as over-voting or improper marks. According to plaintiffs, minorities are more

likely to make these kinds of mistakes because they have lower levels of educational

attainment. PX036, at 9. Dr. Lichtman opined that “[t]his problem is especially acute for

Wisconsin Hispanics. According to the US Census American Community Survey 2010, 3-

Year Estimates, 33.2 percent of Hispanics in Wisconsin speak English ‘less than very well.’”

22 Before 2011, the statute was permissive, not mandatory.


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Id. at 48. The court does not give these opinions much value because Dr. Lichtman did not

link his conclusion to the voting context. He did not identify what percentage of minority

voters would have difficulty understanding a ballot, nor did he explain whether (and why)

absentee ballots would be a type of printed document that minority voters would struggle to

understand. Likewise, plaintiffs have not directed the court to any evidence demonstrating

that comprehension problems with absentee ballots actually occur. See Dkt. 207, at 67.

Defendants’ justification for this provision is straightforward and persuasive. Election

officials do not open absentee ballots until election day, when they feed the ballots through

counting machines. Thus, the only time that clerks would see the types of mistakes that

plaintiffs identify is when they are actually preparing to feed the ballots through the

machines. At that point, it is too late to return the ballot to the voter. In contrast, the errors

for which clerks are now allowed to return absentee ballots are visible without opening the

ballot envelope: “a spoiled or damaged absentee ballot,” Wis. Stat. § 6.86(5), and “an

absentee ballot with an improperly completed certificate or with no certificate,” id. § 6.87(9).

Beyond the procedural justification, defendants argue that permitting clerks to return

ballots to correct “mistakes”—as plaintiffs want—leaves clerks without any real guidance.

One clerk could determine that a voter made a mistake by not voting for each office on a

ballot, while a different clerk could determine that the same voter apparently did not want to

vote for each office. Preventing ambiguity and confusion serves the state’s interest in running

efficient and orderly elections.

The court concludes that the limits on when clerks can return absentee ballots to

voters do not violate the First and Fourteenth Amendments.


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11. The IDPP

Plaintiffs contend that the IDPP impermissibly burdens the right to vote. They seek

to invalidate the process not only for the petitioners who are currently trapped within it, but

also for future petitioners who use the IDPP to obtain a free ID for voting purposes.

The court finds that the IDPP imposes severe burdens on the right to vote.

At least 60 qualified electors—those whose petitions were denied—were

disenfranchised for the 2016 spring primary in Wisconsin. There were also 36 people in

“suspend” status who had not been issued IDs. There is no evidence that any of these people

were not qualified electors. And as defendants’ expert, Dr. Hood, acknowledged, there are

“undoubtedly” people who are discouraged from even entering the process because they lack

the documents or think that it is too cumbersome. Tr. 7p, at 199:11-200:8.

Even petitioners who succeed in navigating the IDPP do so only after enduring severe

burdens. Becky Beck, a CAFU research agent, indicated that once a petition gets to CAFU, it

typically takes five separate contacts between the investigator and the petitioner to verify the

petitioner’s identity, birthdate, and citizenship. Tr. 8p, at 159:12-16. CAFU’s Case Activity

Reports document many instances in which petitioners are repeatedly sent to family

members, hospitals, or schools to hunt for additional documentation, even when there is no

doubt that the person is a qualified elector. Sometimes these petitioners succeed—but only

after they have engaged in months of back-and-forth with CAFU—when the DMV finally

determines, in its discretion, that the petitioner has made a strong enough case to warrant

issuing an ID. Even when the effort is ultimately successful, the IDPP imposes burdens that

far exceed those contemplated in Crawford and Frank.


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Defendants invoke the same justifications that Crawford and Frank discuss. They

contend that Wisconsin’s voter ID law (which includes the IDPP) deters fraud, promotes

public confidence in elections, and promotes the orderly administration of elections. These

interests justify a voter ID law in general, but they do not justify the severe burdens that the

IDPP imposes. The Seventh Circuit has anticipated that such burdens could pose

constitutional problems for Wisconsin’s voter ID law; it noted in Frank that:

Milwaukee Branch of NAACP and the regulations leave much to

the discretion of the employees at the Department of Motor

Vehicles who decide whether a given person has an adequate

claim for assistance or dispensing with the need for a birth

certificate. Whether that discretion will be properly exercised is

not part of the current record, however, and could be the subject

of a separate suit if a problem can be demonstrated.

768 F.3d at 747 n.1.

The evidence presented at trial confirms that the IDPP disenfranchises otherwise

qualified voters. And even when confronted with lawsuits in two different federal courts, the

state has utterly failed to devise a workable solution for getting these voters IDs. The state’s

most recent emergency rule allows the petitioners who are currently in the IDPP to vote in

the November 2016 election. But there is no plan in place for after the petitioners’ current

receipts expire. Kicking the problem down the road does not alleviate the severe burdens that

these petitioners must endure, nor does it prevent any future petitioners from suffering the

same severe burdens. In short, many IDPP petitioners face insurmountable obstacles that

serve no important interest because the government concedes that these petitioners are

qualified electors. These justifications, such as they are, do not outweigh the burdens that the

IDPP imposes.


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The court concludes that the current version of the IDPP violates the First and


12. Cumulative effect

Plaintiffs contend that the cumulative effect of the challenged provisions in this case

imposes an undue burden on the right to vote. According to plaintiffs, even if individual

provisions comport with the First and Fourteenth Amendments, the court must still consider

the overall effect of Wisconsin’s election system on voters, particularly on Democratic voters.

To prove this aspect of their case, plaintiffs rely heavily on the “calculus of voting” theory

that Dr. Burden explained in his expert report. PX037, at 4-5. Under this theory, a voter’s

likelihood of voting is essentially the result of a formula that reflects a cost-benefit analysis. A

person will vote if his or her probability of determining the outcome of the election,

multiplied by the net psychological benefit of seeing his or her preferred candidate win, is

greater than the “cost” of voting (i.e., the effort needed to become informed, and the time

and resources needed to register to vote and cast a ballot). Id.

Plaintiffs argue that Wisconsin has imposed a series of independently minor burdens

that, collectively, increase the cost of voting enough to deter voters who tend to vote for

Democrats. As explained above, plaintiffs did not present compelling statistical evidence of

the deterrent effects that the challenged provisions have. But the nature of the challenged

provisions, none of which facilitate voting or registration, makes it reasonable to infer that

there will be some such effect. And as the Seventh Circuit recognized in Frank, “any

procedural step filters out some potential voters.” 768 F.3d at 749 (original emphasis). But a

deterrent effect alone, especially one that is not reliably quantified, does not render the

cumulative effect somehow unconstitutional.


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The Anderson-Burdick framework requires the court to evaluate “the precise interests

put forward by the State as justifications for the burden imposed by its rule.” Burdick, 504

U.S. at 434. This requirement is difficult in the context of “cumulative effects” because the

state can have different justifications for different rules, each with varying levels of

persuasiveness. Plaintiffs do not propose a legal framework for evaluating a “cumulative

effects” claim under Anderson-Burdick. But even looking broadly at the laws that they

challenge in this case, the court’s analysis of the individual provisions already addresses the

problematic aspects of Wisconsin’s election system.

Take the challenged registration provisions: the court agrees that aspects of

Wisconsin’s registration requirements burden the right to vote, particularly for voters who are

more likely to move (which includes minority and younger voters, and thus, Democratic

voters) and for voters who lack convenient access to documentary proof of residence (again,

minority and younger voters, and thus, Democratic voters). But the state’s interests in

preempting fraud, avoiding confusion, and ensuring that only qualified voters register to vote

are compelling enough to justify at least some of the burdens that the challenged provisions

collectively impose. Removing the restrictions on using dorm lists and reducing the

durational residency requirement will ease the burdens of Wisconsin’s registration laws, at

least to a degree that the state’s interests can justify.

Likewise, the principal problem with Wisconsin’s in-person absentee system is that it

addresses inequality across municipalities by suppressing voting in larger cities rather than by

enabling increased voting in smaller cities. Invalidating that approach not only addresses the

burdens on in-person absentee voting, but it also alleviates burdens in other aspects of

Wisconsin’s election system. A voter who is intimidated by election observers or who is


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concerned about long lines at the polls because there is no straight-ticket voting, for example,

may be able to vote in-person absentee and avoid those concerns altogether.

In short, although plaintiffs press a separate claim for the cumulative effects of the

challenged provisions, the court concludes that they are entitled to no broader relief than the

invalidation of the specific provisions that the court has identified as constitutionally infirm.

A remedy directed at the diffuse cumulative effects of Wisconsin’s election regime would

invite, essentially, a rewrite of the state’s election laws. That would be an unwarranted

intervention by a federal court into an area reserved to the state legislature.

F. Voting Rights Act claims

Plaintiffs challenge the following provisions under § 2 of the Voting Rights Act: the

reductions to in-person absentee voting; the one-location rule for in-person absentee voting;

the elimination of corroboration; the requirement of documentary proof of residence; the

elimination of statewide SRDs; the increased durational residency requirement; the zone for

election observers; and the elimination of straight-ticket voting. Plaintiffs contend that these

provisions disparately burden African Americans and Latinos.

Section 2 of the Voting Rights Act prohibits states and political subdivisions from

implementing any “voting qualification or prerequisite to voting or standard, practice, or

procedure . . . in a manner which results in a denial or abridgement of the right of any citizen

of the United States to vote on account of race or color.” 52 U.S.C. § 10301(a). Plaintiffs can

establish a violation of § 2 by showing that, based on the totality of the circumstances,

Wisconsin’s election process is “not equally open to participation by members of a class of

[protected] citizens . . . in that its members have less opportunity than other members of the

electorate to participate in the political process and to elect representatives of their choice.”


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Id. § 10301(b). Plaintiffs do not need to adduce proof of discriminatory intent to prevail on

their Voting Rights Act claims. Chisom v. Roemer, 501 U.S. 380, 394-95 (1991).

Most case law applying § 2 of the Voting Rights Act pertains to so-called “vote

dilution” claims, which generally involve gerrymandering. Plaintiffs in this case bring claims

over voting and registration requirements, which are “vote denial” claims for which Voting

Rights Act law is less developed. In Frank, the Seventh Circuit endorsed a two-step inquiry for

reviewing vote-denial challenges to voting qualifications under the Voting Rights Act:

First, the challenged standard, practice, or procedure must

impose a discriminatory burden on members of a protected

class, meaning that members of the protected class have less

opportunity than other members of the electorate to participate

in the political process and to elect representatives of their

choice.

Second, that burden must in part be caused by or linked to

social and historical conditions that have or currently produce

discrimination against members of the protected class.

768 F.3d at 754-55 (citations and internal quotation marks omitted). But the Seventh

Circuit also cautioned that “§ 2(a) does not condemn a voting practice just because it has a

disparate effect on minorities.” Id. at 753. “It is better to understand § 2(b) as an equal-

treatment requirement (which is how it reads) than as an equal-outcome command.” Id. at

754. The court must therefore analyze whether plaintiffs have proven that: (1) the challenged

provisions impose disparate burdens on African Americans and Latinos; and (2) under the

totality of the circumstances, these burdens are linked to the state’s historical conditions of

discrimination.

1. Disparate burdens

Two threshold issues affect how the court evaluates plaintiffs’ evidence of disparate

burdens. First, defendants contend that the Voting Rights Act requires plaintiffs to couch


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their evidence in terms of a departure from an “objective benchmark,” rather than a

departure from what Wisconsin’s laws used to be. Dkt. 206, at 114. The Supreme Court has

indicated that a different baseline is part of what distinguishes § 2 claims from § 5 claims:

In § 5 preclearance proceedings—which uniquely deal only and

specifically with changes in voting procedures—the baseline is the

status quo that is proposed to be changed: If the change

“abridges the right to vote” relative to the status quo,

preclearance is denied, and the status quo (however

discriminatory it may be) remains in effect. In § 2 or Fifteenth

Amendment proceedings, by contrast, which involve not only

changes but (much more commonly) the status quo itself, the

comparison must be made with a hypothetical alternative: If the

status quo “results in [an] abridgement of the right to vote” or

“abridge[s] [the right to vote]” relative to what the right to vote

ought to be, the status quo itself must be changed.

Reno v. Bossier Par. Sch. Bd., 528 U.S. 320, 334 (2000) (original emphasis).

But Reno and the other cases on which defendants rely are vote dilution cases; this is a

vote denial case. The few other federal courts that have considered how to evaluate burdens in

vote denial cases have determined that this distinction is important. Relying on the text of

the Voting Rights Act, the Southern District of Ohio recently concluded that “the relevant

benchmark is inherently built into § 2 claims and is whether members of the minority have

less opportunity than other members of the electorate to participate in the political process

and elect representatives of their choice.” Ohio Org. Collaborative, 2016 WL 3248030, at *39;

see also Ohio State Conference of N.A.A.C.P. v. Husted, 768 F.3d 524, 556 (6th Cir. 2014)

(“Section 2 vote denial claims inherently provide a clear, workable benchmark. . . . under the

challenged law or practice, how do minorities fare in their ability ‘to participate in the

political process’ as compared to other groups of voters?” (original emphasis) (quoting 42 U.S.C.

§ 1973(b), which has been transferred to 52 U.S.C. § 10301)), vacated on other grounds,

No. 14-3877, 2014 WL 10384647 (6th Cir. Oct. 1, 2014). The reasoning in these cases is


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persuasive, and the court rejects defendants’ argument that plaintiffs must identify an

objective benchmark to prevail on their Voting Rights Act claims.

Part of determining whether minority voters have less opportunity to participate than

other members of the electorate may involve comparing the challenged provisions with the

laws that they replaced. See League of Women Voters of N.C. v. North Carolina, 769 F.3d 224,

241-42 (4th Cir. 2014), cert. denied, 135 S. Ct. 1735 (2015); Ohio Org. Collaborative, 2016

WL 3248030, at *40 (“[A]n analysis of whether a change in law results in a decreased

opportunity of minorities to vote as compared to other voters is exactly the type of analysis

required by § 2 claims.”). But that is not to say that a given provision would violate the

Voting Rights Act just because it leaves minority voters worse off than a prior law. The

appropriate inquiry at this first step is whether the challenged provision burdens minority

voters more than other voters. See Frank, 768 F.3d at 753.

The second threshold issue concerns the type of evidence that the parties have

presented to prove (or disprove) that African Americans and Latinos have suffered disparate

burdens under the challenged provisions. Experts on both sides have presented extensive

statistical evidence derived from election turnout data in Wisconsin over time. Given the

information available about Wisconsin’s elections, turnout rates may be the best that the

parties can offer. But raw turnout statistics reveal very little about the disparate burdens that

a state’s election system imposes. For example, defendants tout the high turnout numbers for

the April 2016 election—the first statewide election in which the voter ID law and other

challenged provisions were in effect—as evidence that minorities are not suffering disparate

burdens under Wisconsin’s election laws. Tr. 1a, at 60:8-17. But turnout in a given election

depends on many factors, ranging from which offices are on the ballot to the amount of


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money spent on campaigning and the contentiousness of the races. The April 2016

Wisconsin involved unusually sharply contested primaries on both sides, which undoubtedly

contributed to the higher-than-average turnout for an April election. Tr. 2, at 42:10-43:9.

One cannot infer from the high overall turnout that Wisconsin’s election laws have no

impact, or that they have no differential impact on minorities.

That is not to say that turnout statistics are utterly useless. Plaintiffs’ expert,

Dr. Mayer, used the statewide voter database, correlated to a separate database of

demographic and political information, to track several cohorts of voters across the 2010 and

2014 elections (i.e., before and after some of the challenged provisions went into effect).

Both sides’ experts agreed that comparing midterm elections, rather than presidential

elections, made sense, because Barack Obama’s presence on the ballot in 2008 and 2012

would likely skew minority turnout. And, although the usual constellation of factors affected

voting in 2010 and 2014, a change in election law regime was one significant difference

between those elections, and no one was aware of any other major factor likely to affect

turnout. Dr. Mayer also opined that, based on survey research, in 2014 most voters believed

that the voter ID law was in effect, even though it was actually still enjoined. Thus,

Dr. Mayer was of the view that the 2014 election would be a good test of the impact of the

laws challenged in this case.

Dr. Mayer used statistical regression analysis to isolate some of the variables that

contribute to a voter’s likelihood of voting. Based on this analysis, Dr. Mayer concluded that

African Americans, Latinos, and those who lived in student wards, were slightly less likely to

vote in the 2014 election than the average voter was. PX043, at 14 (updated Table 8). By

contrast, in the 2010 election, African Americans and those in student wards were actually


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more likely to have voted. For Latinos, the difference between 2010 and 2014 was small

(though slightly in the opposite direction; they were slightly less likely to vote in 2010).

Plaintiffs contend that Dr. Mayer’s analysis shows that they challenged the provisions

decreased likelihood that minorities will vote. These conclusions are in line with other

national studies, which conclude that voter ID laws tend to suppress minority turnout at

elections. See PX072.

Defendants’ expert, Nolan McCarty, PhD, criticized Dr. Mayer’s conclusions because

Dr. Mayer does not account for “roll-off” in the statewide voter database. That database

provides a “snapshot” in that it includes voting records only for those voters who are

registered as of the date the report of the database is generated, which in Dr. Mayer’s case

was September 24, 2015. Thus the September 24, 2015 database does not include the voting

records of any voter who was not registered as of that date, even though that voter might

have been registered for the 2010 or 2014 elections. Dr. McCarty surmises that minority

voters would have been more likely to rolloff, so that Dr. Mayer’s turnout rates for 2010 were

too high, and thus the difference between those rates and the 2014 rates would be smaller.

DX005, at 9. Dr. Mayer response is that despite the roll-off effect, his conclusions are sound,

because he finds the effect even among the cohort of committed voters (because they stayed

registered from 2010 to 2015 without rolling off the database). The court finds that, despite

Dr. McCarty’s criticism, Dr. Mayer’s regression analysis supports the conclusion that the

probability of an African American voting, relative to an average voter, was less in 2014 than

it was in 2010. The court finds that Dr. Mayer’s conclusions about those who live in student

wards are not informative, because his definition of those who live in student wards does not

include only students. The bottom line is that Dr. Mayer’s analysis lends some support to the


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plaintiffs’ claim that the challenged provisions tend to reduce African American voting by

some modest amount. But nothing presented by either side demonstrated that the challenged

laws had a striking impact on turnout overall or among any class of voters.

And even with the support of other empirical evidence, Dr. Mayer’s conclusions,

without more, are not enough to carry the day for plaintiffs. “It is better to understand § 2(b)

as an equal-treatment requirement (which is how it reads) than as an equal-outcome

command.” Frank, 768 F.3d at 754. At the end of the day, turnout statistics report outcomes,

not the burdens of the election regulations that might have influenced those outcomes. Thus,

the court must look for specific evidence demonstrating that the challenged provisions fall

disparately on minorities.

a. Registration provisions

Plaintiffs challenge three registration-related provisions under the Voting Rights Act:

proof of residence, elimination of corroboration, and elimination of statewide SRDs.

Plaintiffs contend that these provisions impose disparate burdens on minority voters, who are

more likely to move than white voters are. The court accepts plaintiffs’ expert evidence that

minority populations are more transient. PX036, at 47. If those populations register at the

same rate that white populations do, then they would need to complete registration more

often. For minority voters who do not have convenient access to proof of residence, this

requirement could be disparately burdensome, as could the elimination of corroboration.

Wisconsin’s registration requirements apply to all voters, regardless of race. The fact

that voters must register after they move does not itself impose a disparate burden. Instead,

plaintiffs must demonstrate that it is categorically more difficult for African American or

Latino voters to comply with the registration requirements, and that registering more often


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therefore forces these populations to confront those difficulties more often. Plaintiffs have

failed to make this showing.

Even acknowledging that minorities are more likely to lack driver licenses or state-

issued IDs, those are only 2 of the 12 options for proving residence that Wis. Stat.

§ 6.34(3)(a) authorizes. Dr. Lichtman indicates that minorities are more likely to be

unemployed, id. at 7-8, which could mean that they would lack access to paychecks. But that

still leaves residential leases, utility bills, bank statements, and documents issued by any unit

of government. Indeed, as discussed above, municipal clerks have devised a strategy for

sending letters to voters and then letting them use those letters to register. See, e.g., Tr. 1p, at

163-65; Tr. 2, at 301-02. Plaintiffs therefore cannot demonstrate that the documentary proof

of residence requirement burdens minorities for purposes of § 2. Cf. Frank, 768 F.3d at 752-

53 (“[P]ersons who rely on the waiver procedure still must apply for it, which means that on

average black and Latino residents must file more paperwork than white residents. Although

these findings document a disparate outcome, they do not show a ‘denial’ of anything by

Wisconsin, as § 2(a) requires.”).

As for corroboration, plaintiffs’ evidence of a disparate burden substantially consists of

anecdotes and lay observations. See, e.g., Tr. 1p, at 78:7-20 (corroboration is useful to people

who are transient or in poverty); Tr. 3a, at 88:15-20 (corroboration facilitates participation

by homeless or marginally housed voters). This testimony does not establish a verifiable

disparate effect. And although some voters have been unable to register at the polls because

corroboration is no longer an option, plaintiffs do not identify a racial slant to this problem.

In fact, Dr. Lichtman expressly acknowledged that statistics about the use of corroboration


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by race are not available. PX036, at 40. This leaves plaintiffs unable to prove that the

elimination of corroboration disparately prevents minorities from registering to vote.

In the abstract, African Americans and Latinos could have more difficulties presenting

documentary proof of residence, particularly without corroboration. But plaintiffs have not

actually proven that the challenged burdens disparately burden minorities. There is no

persuasive evidence that minorities who want to register are systematically unable to comply

with the requirement that they present proof of residence. The challenged provision violates

the Voting Rights Act only if it gives “members of the protected class . . . less opportunity

than other members of the electorate to participate in the political process.” Frank, 768 F.3d

at 755 (citations and internal quotation marks omitted). Given the number of documents

that voters can use to prove their residence, African American and Latino voters do not have

“less opportunity” to participate in elections just because they are less likely to be able to use

certain types of documents. Cf. Ohio Org. Collaborative, 2016 WL 3248030, at *40

(prohibiting officials from sending unsolicited applications for absentee ballots does not

create a burden for § 2 purposes).

Plaintiffs also argue that minority voters are more likely to register through SRDs at

voter-registration drives than white voters are. But plaintiffs’ only citation for this

proposition is a website. See Dkt. 207, at 204. Plaintiffs did not introduce the website as

evidence at trial, and they do not direct the court to other evidence admitted at trial that

supports this contention. The court therefore concludes that plaintiffs have failed to prove

that the elimination of statewide SRDs has had a disparate effect on minorities.


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The court concludes that the challenged provisions requiring documentary proof of

residence, eliminating corroboration, and eliminating statewide SRDs do not disparately

burden African Americans or Latinos.

b. Durational residency provision

In the context of plaintiffs’ constitutional challenge, the court concluded that the

increased durational residency requirement imposes disparate burdens on African Americans

and Latinos. For substantially the same reasons, the court concludes that this provision also

disparately burdens minorities for purposes of the plaintiffs’ Voting Rights Act claims.

Wisconsin’s minority populations are much more transient than its white population

is, in terms of both moving into the state and moving within the state. PX036, at 47. Unlike

the methods for proving residence, there is no flexibility in the durational residency

requirement: a voter either satisfies the requirement or does not satisfy it. Voters who have

not been in a municipality for at least 28 days must either return to their former

municipalities (if they moved within Wisconsin) or be disenfranchised. Because African

Americans and Latinos are also more likely to lack access to transportation and to have less

flexible work schedules, traveling to another municipality is not always feasible. On top of

these burdens, voters who first have to register in their former municipalities must complete

the awkward process of certifying that they have “resided at the [former] residential address

for at least 28 consecutive days immediately preceding this election, with no present intent to

move.” DX101, at 1.

The court concludes that the durational residency provision disparately burdens

African Americans and Latinos.


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c. In-person absentee voting provisions

In the context of plaintiffs’ constitutional challenge, the court concluded that

Wisconsin’s in-person absentee voting provisions burden the right to vote, particularly for

minority populations in larger municipalities. For substantially the same reasons, the court

concludes that these provisions also disparately burden minorities for purposes of plaintiffs’

Voting Rights Act claims.

Wisconsin’s rules for in-person absentee voting all but guarantee that voters will have

different experiences with in-person absentee voting depending on where they live: voters in

large cities will have to crowd into one location to cast a ballot, while voters in smaller

municipalities will breeze through the process. And because most of Wisconsin’s African

American population lives in Milwaukee, the state’s largest city, the in-person absentee

voting provisions necessarily produce racially disparate burdens. Moreover, plaintiffs have

demonstrated that minorities actually used the extended hours for in-person absentee voting

that were available to them under the old laws. PX036, at 43.

The court concludes that the in-person absentee voting provisions disparately burden

African Americans and Latinos.

d. Election observer and straight-ticket voting provisions

Plaintiffs contend that African Americans and Latinos are disparately affected by the

state’s rules governing where election observers can stand at polling places and by the state’s

elimination of straight-ticket voting.

Problems with election observers are more prevalent in high-minority areas like

Milwaukee and Racine. But, as with plaintiffs’ constitutional challenges to this provision, the

problem for plaintiffs’ Voting Rights Act claims is that municipal clerks and chief election


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inspectors decide where observers stand, not the state. The individual decisions that election

officials make may lead to increased harassment at certain polling places. But that is not the

same as saying that the state has imposed a disparate burden on minorities just by defining a

range in which to position observers.

Plaintiffs rely exclusively on anecdotal evidence to prove that observers intimidate or

harass African Americans and Latino voters more often than white voters. This evidence is

insufficient to prove a violation of the Voting Rights Act, and most of it is not directly

relevant. Plaintiffs have not presented evidence—expert or otherwise—that minorities

disparately suffer burdens when election observers stand close to them, or that the state’s

zone for election observers leads election officials to place observers closer to voters in

minority-heavy municipalities. Indeed, plaintiffs’ anecdotal evidence does not address the

distances at which observers have caused problems, except to suggest that many observers

were closer than three feet. That is not a result of Act 177—the state prohibited election

officials from allowing observers to be closer than three feet. Thus, plaintiffs cannot attribute

these problems to the state for purposes of proving a disparate burden.

This leaves plaintiffs’ evidence that problems are more prevalent in Milwaukee and

Racine. These problems occurred under the GAB’s rule, not under the statute that replaced

it, which undermines plaintiffs’ assertion that Act 177 disparately burdens minorities. But

even inferring that problems are more common in these municipalities under the new rule,

the burden that minorities experience still comes from election officials not using the

authority that the state has given them to control election observers. Plaintiffs have not

proven that the state has imposed a disparate burden on African Americans or Latinos by


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giving election officials discretion to designate zones for election observers that are

appropriate for their polling locations.

As for the elimination of straight-ticket voting, the court has already found that this

provision imposes only slight burdens on the right to vote. For substantially similar reasons,

the court concludes that the provision does not create a disparate burden for purposes of

plaintiffs’ Voting Rights Act claims. Again, plaintiffs’ evidence is entirely anecdotal and

mainly establishes only that African Americans and Latinos would prefer to use straight-ticket

voting. The elimination of straight-ticket voting applies to all voters, regardless of race.

Plaintiffs have failed to prove that this provision gives minorities less opportunity to vote

than other voters.

The court concludes that the challenged provisions governing election observers and

straight-ticket voting do not disparately burden African Americans or Latinos.

e. The IDPP

As explained above, the IDPP imposes a discriminatory burden on racial minority

groups, meaning that their members have less opportunity than others do to participate in

the political process. Plaintiffs have made a more than ample showing on this element.

The court concludes that the IDPP disparately burdens African Americans and

Latinos.

2. Caused by or linked to social and historical conditions

The second step in analyzing a claim under the Voting Rights Act is to consider

whether a discriminatory burden is “in part . . . caused by or linked to social and historical

conditions that have or currently produce discrimination against members of the protected

class.” Frank, 768 F.3d at 755. Having concluded that Wisconsin’s durational residency


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requirement, provisions for in-person absentee voting, and IDPP disparately burden African

Americans and Latinos, the court now considers whether those burdens are linked to social

and historical conditions of discrimination.

Plaintiffs contend that the court should apply the so-called Gingles factors to analyze

their Voting Rights Act claims. The Supreme Court has endorsed these factors, at least in the

context of vote dilution cases. See Thornburg v. Gingles, 478 U.S. 30, 44-45 (1986). But the

Seventh Circuit has found them to be “unhelpful in voter-qualification cases,” Frank, 768

F.3d at 754, and so the court will not organize its analysis by factor. Nevertheless, the Voting

Rights Act requires courts to examine “the totality of circumstances,” 52 U.S.C. § 10301(b),

which essentially comprises the same inquiries that the Gingles factors address. Thus,

plaintiffs’ evidence about Wisconsin’s history of discrimination and about the effects of past

discrimination that minority groups suffer is relevant to their Voting Rights Act claims.

Wisconsin has a relatively scant history of state-sanctioned discrimination. When

Wisconsin became a state in 1848, its constitution did not extend the right to vote to African

Americans; they obtained that right after the measure was passed at a statewide election in

1849. But the effect of the election remained in doubt until 1866, when the Wisconsin

Supreme Court clarified that African Americans had the right to vote. See generally Gillespie v.

Palmer, 20 Wis. 544 (1866).

Other statewide policies (or lack thereof) have disparately affected minorities to some

degree, even if they were not facially discriminatory. For example, from 1913 to 2006, only

municipalities with more than 5,000 residents had to register voters. In other municipalities,

voters did not have to register. According to Dr. Burden, the result of this practice was that

“98% of blacks and 91% of Latinos lived in municipalities where registration was required. In


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contrast, only 68% of whites lived in these municipalities.” PX037, at 11. Thus, until 2006,

minorities in Wisconsin disproportionately faced more impediments to voting than white

citizens faced.

Few municipalities outside of Milwaukee provide election-related materials in

languages other than English, despite the fact that the GAB makes these forms available for

clerks to use, and no other municipality provides ballots in Spanish. Id. Given the significant

percentages of Spanish-speaking voters in municipalities across the state, id.; PX036, at 48,

Wisconsin’s failure to address the issue is significant.

Plaintiffs’ other evidence of historical conditions of discrimination concerns

Milwaukee. This makes sense, given that Milwaukee is home to most of the state’s minority

population. Along with other large cities in the state, Milwaukee is where the disparate

burdens that the challenged provisions impose are most prevalent. But under the Voting

Rights Act, “units of government are responsible for their own discrimination but not for

rectifying the effects of other persons’ discrimination.” Frank, 768 F.3d at 753. Thus,

defendants have argued in this case that Milwaukee’s history of discrimination, which is

technically not the state’s own discrimination, cannot give rise to liability under the Voting

Rights Act.

Drawing such a rigid distinction for purposes of plaintiffs’ Voting Rights Act claims

would undermine the purposes of the law. See Chisom, 501 U.S. at 403 (“Congress enacted

the Voting Rights Act of 1965 for the broad remedial purpose of ridding the country of racial

discrimination in voting. . . . [T]he Act should be interpreted in a manner that provides the

broadest possible scope in combating racial discrimination.” (citations, internal quotation

marks, and alterations omitted)). But even assuming that the Voting Rights Act does not


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impose liability on the state for a municipality’s discrimination—a questionable

assumption—the act certainly prevents a state from enacting laws that interact with a

municipality’s history of discrimination to impose disparate burdens. See Frank, 768 F.3d at

754 (“We are not saying that, as long as blacks register and vote more frequently than

whites, a state is entitled to make changes for the purpose of curtailing black voting. Far from

it; that would clearly violate § 2 [of the Voting Rights Act].”).

Beginning with the in-person absentee provisions, there is evidence that the state

legislature passed these laws, at least in part, to specifically address what it perceived to be a

problem with larger municipalities, like Milwaukee. Legislators were concerned that these

municipalities offered residents more opportunities to vote than smaller municipalities

offered. For example, during a floor session in the state senate, proponents of limiting the

window for in-person absentee voting specifically referred to nipping Milwaukee and

Madison’s practices “before too many other cities get on board.” PX022, at 6. Even if the

state was not directly responsible for creating the socioeconomic disparities that exist in

Milwaukee and other larger cities, the in-person absentee provisions impose burdens because

of those disparities. For these reasons, the court concludes that evidence of discrimination in

Milwaukee is relevant to the causation element of plaintiffs’ Voting Rights Act claims.

During the 1960s and 1970s, Milwaukee experienced considerable white flight.

Although the city’s Common Council passed an open housing law, discriminatory housing

practices continued to limit housing choices for African Americans, confining them to the

inner city. PX037, at 12. Zoning regulations in the municipalities surrounding Milwaukee

further reinforced the segregation. As a result, two-thirds of Wisconsin’s African American


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residents now live in Milwaukee, which remains one of the most segregated cities in the

country. Id. at 13.

Coupled with segregated housing practices, Milwaukee has also had a difficult history

with discrimination in education. In 1976—more than 20 years after Brown v. Board of

Education—a federal judge concluded that Milwaukee’s schools were illegally segregated. Amos

v. Bd. of Sch. Dirs. of Milwaukee, 408 F. Supp. 765 (E.D. Wis.), aff’d sub nom., Armstrong v.

Brennan, 539 F.2d 625 (7th Cir. 1976), vacated, 433 U.S. 672 (1977). The case settled after

going to the Supreme Court. But the results of educational inequality have persisted. In

2015, high school graduation rates in Wisconsin were 66 percent for blacks, 78 percent for

Latinos, and 93 percent for whites.23 PX037, at 16.

Most of the rest of plaintiffs’ expert evidence does not link to the disparate burdens

that the in-person absentee provisions create. For example, Dr. Burden catalogs other

instances of racial disparities in incarceration rates, income, and health. Id. at 15-18.

Although this evidence is credible, it is only tangentially relevant to plaintiffs’ Voting Rights

Act claims. Likewise, Dr. Burden’s analysis of other Gingles factors (i.e., racially polarized

voting, race-based appeals in political campaigns, minority members elected to public office)

does not bear directly on the disparate burdens that the court has found.

Disparities in housing, education, and employment, have left minority groups

condensed into high-density urban areas, which makes them particularly vulnerable to

Wisconsin’s rules for in-person absentee voting. With only one location for in-person

absentee voting, voters must travel farther than they would otherwise have to travel if

municipalities could establish more locations. And basic math confirms that one location in a

23 Although these are statewide statistics, the problem is likely just as prevalent in Milwaukee.


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larger municipality will have to contend with a larger volume of voters than one location in a

smaller municipality will have to confront. Lower levels of educational attainment and

employment decrease the flexibility that minority populations will have to spend time waiting

in line to vote in-person absentee, which makes the reduced hours problematic as well. The

court therefore finds that the burdens that Wisconsin’s in-person absentee provisions impose

are linked to historical conditions of discrimination. These provisions are invalid under the

Voting Rights Act.

As for durational residency, African Americans and Latinos will have to deal with this

requirement more often than white voters will because they move more often. These

populations are also more likely to lack access to transportation, meaning that if they do not

satisfy the durational residency requirement, they will be less able to travel back to vote in

their former municipalities. But plaintiffs have not persuasively explained how these burdens

are linked to the historical conditions of discrimination described above. “Section 2(a)

forbids discrimination by ‘race or color’ but does not require states to overcome societal

effects of private discrimination that affect the income or wealth of potential voters.” Frank,

768 F.3d at 753. The court therefore finds that the burdens that Wisconsin’s durational

residency requirement imposes are not linked the historical conditions of discrimination.

These provisions do not violate the Voting Rights Act.

Finally, based on the evidence adduced at trial, the court cannot conclude that the

burdens that the IDPP imposes are linked to historical conditions of discrimination in

Wisconsin. Most of the problems that petitioners have had with getting through the IDPP

relate to their inability to provide vital records to the DMV or to CAFU. But those failures

tend to result from historical conditions of discrimination in the petitioner’s home state or


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country. Under Frank, it is not clear that the Voting Rights Act authorizes the court to hold

Wisconsin accountable for these conditions. See 768 F.3d at 753 (“The judge did not

conclude that the state of Wisconsin has discriminated in any of these respects. That’s

important, because units of government are responsible for their own discrimination but not

for rectifying the effects of other persons’ discrimination.”). It would be up to the Seventh

Circuit, not this court, to clarify the scope of the inquiry under § 2.

Plaintiffs contend that this is an excessively narrow reading of the Voting Rights Act,

because it would allow Wisconsin to ignore rank discrimination by other states. They may be

right, but the result appears to follow from Frank. Because the IDPP is manifestly

unconstitutional under the Anderson-Burdick framework, the court will invalidate the IDPP

regardless of its status under the Voting Rights Act.

G. Fourteenth Amendment claims for disparate treatment of voters

Plaintiffs initially challenged three of the provisions at issue under the Fourteenth

Amendment, alleging that the legislature lacked a rational basis for: (1) implementing a 28-

day durational residency requirement; (2) eliminating straight-ticket voting; and

(3) excluding technical college, out-of-state, and other expired IDs as qualifying forms of

voter ID. Dkt. 19, ¶¶ 164-69. The court dismissed the claims concerning Wisconsin’s

durational residency requirement and straight-ticket voting. Dkt. 66, at 5-9. At summary

judgment, plaintiffs dropped their challenge to excluding technical college IDs, and the court

granted summary judgment to defendants on most of the rest of plaintiffs’ remaining rational

basis claim. Dkt. 185, at 20-24. The court denied defendants’ motion for summary judgment

with regard to plaintiffs’ challenge that the state lacked a rational basis for excluding expired

college or university IDs from the list of qualifying forms of voter ID.


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In their post-trial brief, plaintiffs purport to “continue to challenge the rational basis

of excluding three forms of ID: 1) out-of-state driver’s licenses, 2) driving receipts issued

under Wis. Stat. § 343.11, and 3) state ID card receipts.” Dkt. 207, at 128. Plaintiffs are free

to pursue these issues on appeal, but the court has already entered summary judgment for

defendants on these aspects of plaintiffs’ rational basis claims.

Plaintiffs also note that at summary judgment, the court “ruled that excluding expired

college or university IDs lacked a rational basis.” Id. at 128 n.32. That is incorrect. In

denying defendants’ motion, the court did not affirmatively conclude that the state lacked a

rational basis for excluding expired college or university IDs. As the pertinent section of the

summary judgment opinion stated: “[a]t this point, defendants have failed to identify a

rational basis for the legislature’s decision to exclude expired student IDs. The court will deny

this aspect of defendants’ motion for summary judgment.” Dkt. 185, at 24. The court

essentially concluded that defendants’ proffered justifications for excluding expired student

IDs were insufficient, and that defendants would have to do better at trial if they wanted to

overcome plaintiffs’ rational basis challenge.

Ultimately, plaintiffs’ misreading of the summary judgment decision is immaterial

because rational basis review focuses on the state’s justification for its actions, rather than on

plaintiffs’ disagreement with those actions. “[A] classification neither involving fundamental

rights nor proceeding along suspect lines is accorded a strong presumption of validity.” Heller

v. Doe, 509 U.S. 312, 319 (1993). The court will uphold the state’s decision to exclude

expired college or university IDs if defendants identify “a rational relationship between the

disparity of treatment and some legitimate governmental purpose.” Id. at 320. Defendants

did not need to produce evidence at trial to support the rationality of the state’s decision, nor


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are they limited to the justifications that the legislature had in mind at the time that it passed

the challenged provisions—any rational justification for the laws will overcome an equal

protection challenge. Id. at 320-21.

The state’s approach to college and university IDs is somewhat inconsistent. The state

purports to have given students the flexibility and convenience to choose how to verify their

identities at the polls. In addition to the other forms of acceptable ID that are available to

citizens generally, students have the unique option of using the IDs that they receive from

their schools. But that option is not as convenient as it appears. College or university IDs are

acceptable only if they expire within two years after issuance. Wis. Stat. § 5.02(6m)(f). The

standard ID that the University of Wisconsin-Madison—the state’s flagship university—

issues does not comply with this requirement. Tr. 1p, at 173:2-174:18; Tr. 3a, at 44:13-21.

Instead, UW-Madison offers a second, voting-specific ID to its students who want to use

university-issued IDs to vote. Tr. 3a, at 45:15-46:19. Thus, in practice, the option to use a

college or university ID does not provide much flexibility or convenience.

The state has also taken considerable pains to limit the use of college or university IDs

to current students only. The three requirements in Wis. Stat. § 5.02(6m)(f) are redundant:

(1) the ID card itself must be unexpired; (2) the card must have an expiration date that is no

more than two years after its date of issuance; and (3) the voter must present proof of current

enrollment. If each of these requirements provided some additional level of protection against

former students using their IDs to vote, then those requirements might be rational. But as it

stands, defendants have not explained why any requirement beyond proof of current

enrollment is necessary to protect against fraudulent voting with a college or university ID.


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Nevertheless, plaintiffs’ rational basis claim challenges only the requirement that the ID card

be unexpired when a voter presents it at the polls.

Defendants argue that it is rational to require voters to present unexpired college and

university IDs because voters can use these IDs only in conjunction with proof of enrollment.

See Wis. Stat. § 5.02(6m)(f). According to defendants, the state reasonably has presumed

that anyone with an expired ID is probably no longer enrolled at the issuing college or

university. Thus, it makes no sense to allow a voter to use an expired college or university ID

because that voter will not be able to also provide proof of enrollment. This is a circular

argument. Worse, it is the exact argument that defendants presented at summary judgment.

The court concluded that this argument was not persuasive for two reasons:

First, defendants apparently make no room for the possibility

that a student could be enrolled at an institution but have an

expired student ID. If incoming freshmen at four-year

universities receive student IDs that expire two years after

issuance, then any junior or senior who fails to obtain a new

student ID would have to find a different way to prove his or

her identity. Second, unlike receipts for driver licenses and ID

cards, expired student IDs are not later replaced with entirely

different documents. Defendants therefore cannot rely on the

same arguments about simplifying elections by eliminating

unnecessary duplicative forms of ID.

Dkt. 185, at 24. Repetition has not made defendants’ argument any more persuasive.

At a macro level, the state’s concern with ensuring that only current students vote

with student IDs may be rational. But Wis. Stat. § 5.02(6m)(f) adequately addresses that

concern by requiring a voter to present proof of enrollment with the student ID. Adding the

requirement that a voter’s college or university ID be unexpired does not provide any

additional protection against fraudulent voting. If anything, this measure prevents otherwise

qualified voters from voting simply because they have not renewed their IDs since beginning


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school. Thus, even under an exceedingly deferential rational basis review, the state has failed

to justify its disparate treatment of voters with expired IDs. The court concludes that

requiring unexpired college or university IDs violates the Fourteenth Amendment.

To be clear, the court is not concluding that voters have carte blanche to use expired

college or university IDs at the polls; they must still comply with the other requirements of

Wis. Stat. § 5.02(6m)(f). Plaintiffs have not directed their rational basis challenge to the

requirement that a voter with a college or university ID also present proof of enrollment at

the issuing institution. Nor have plaintiffs challenged the rational basis for permitting only

IDs that expire no more than two years after issuance.24 These requirements still apply. The

only thing that will change is that the ID card that a college or university student actually

presents at the polls can be expired.

CONCLUSION AND REMEDIES

The court has identified several constitutional and statutory violations, and the court

will grant declaratory and injunctive relief accordingly.

For the challenged provisions relating to in-person absentee voting, Wisconsin’s

statutes establishing a one-location rule, Wis. Stat. § 6.855-.86, violate the First and

Fourteenth Amendments and § 2 of the Voting Rights Act. Likewise, the sections of Act 146

amending Wis. Stat. §§ 6.86(1)(b) to limit the days and times for in-person absentee voting

violate the Fifteenth Amendment. These provisions, along with the sections of Act 23 that

24 Without the requirement that a voter present an unexpired college or university ID, it

seems unnecessary to regulate the ID’s expiration date. But that is outside the scope of

plaintiffs’ challenge, and so the court will leave it to the state to determine whether this

provision is still necessary.


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limit the hours for in-person absentee voting, also violate § 2 of the Voting Rights Act and

the First and Fourteenth Amendments, except with regard to preventing municipal clerks

from holding hours for in-person absentee voting on the Monday before an election.

For the challenged provisions relating to registering to vote, the sections of Act 23

amending Wis. Stat. § 6.34(3)(a)7. to require dorm lists to include proof of a student’s

citizenship violate the First and Fourteenth Amendments. Likewise, the sections of Act 23

amending Wis. Stat. §§ 6.02, .10(3), and .15 to increase the durational residency

requirement from 10 days to 28 days violate the First and Fourteenth Amendments.

For the challenged provisions relating to election procedures, the sections of Act 75

amending Wis. Stat § 6.87(3)(d) to prohibit municipal clerks from emailing or faxing

absentee ballots to voters violate the First and Fourteenth Amendments.

For the challenged provisions relating to voter ID, the statutes and administrative

rules that create and govern the IDPP that voters can use to obtain free IDs for purposes of

voting violate the First and Fourteenth Amendments.

Plaintiffs seek a permanent injunction. Dkt. 207, at 244. They must therefore

demonstrate that: (1) they have succeeded on the merits; (2) no adequate remedy at law

exists; (3) they will suffer irreparable harm without injunctive relief; (4) the irreparable harm

suffered without injunctive relief outweighs the irreparable harm that Wisconsin will suffer if

the injunction is granted; and (5) the injunction will not harm the public interest. Old

Republic Ins. Co. v. Emp’rs Reinsurance Corp., 144 F.3d 1077, 1081 (7th Cir. 1998). Based on

the court’s conclusion that several of the challenged provisions violate the Constitution or the

Voting Rights Act, or both, the court finds that plaintiffs have made the requisite showing


117

and injunctive relief is appropriate. With the exception of the IDPP, the court will

permanently enjoin defendants from enforcing the invalid provisions.

The IDPP does not require wholesale invalidation. As described in the introduction to

this opinion, another federal court has already issued a preliminary injunction against

enforcing the IDPP. That injunction imposes an affidavit-based solution, essentially allowing

voters to sign a form instead of presenting an ID at the polls. Plaintiffs have not asked for

that type of relief here, and the court will not grant it. Nothing would prevent the state from

complying with both Judge Adelman’s injunction and the one that this court will impose.

This court will require that the IDPP be reformed to satisfy two criteria. First,

Wisconsin cannot make it unreasonably difficult for voters to obtain a free ID. Once a

petitioner has submitted materials sufficient to initiate the IDPP, the DMV must promptly

issue a credential valid for voting, unless readily available information shows that the

petitioner is not a qualified elector entitled to such a credential. Second, the state must

inform the general public that those who enter the IDPP will promptly receive a credential

valid for voting, unless readily available information shows that the petitioner is not a

qualified elector entitled to such a credential.

For further clarification: the credentials issued under this procedure need not be valid

for any purpose other than voting; the court is not ordering the state to issue Wisconsin IDs

to all those who enter the IDPP. But the credentials issued are not temporary: petitioners and

the public must be informed that these credentials have a term equivalent to that of a driver

license or Wisconsin ID, and that they will be valid for voting until they expire or are revoked

for good cause. Good cause is shown if the petitioner is not a qualified elector; the failure to

provide additional information or communication to the DMV is not good cause. The


118

receipts issued under the most recent Emergency Rule would meet these requirements, with

the exception of the currently stated term of expiration.

ORDER

IT IS ORDERED that:

1. The IDPP as implemented is unconstitutional under the First and Fourteenth

Amendments to the United States Constitution;

2. 2013 Wis. Act 146 is unconstitutional under the Fifteenth Amendment to the

United States Constitution;

3. The restriction limiting municipalities to one location for in-person absentee

voting is unconstitutional under the First and Fourteenth Amendments to the

United States Constitution;

4. The state-imposed limits on the time for in-person absentee voting, with the

exception of the prohibition applicable to the Monday before election day, are

unconstitutional under the First and Fourteenth Amendments to the United

States Constitution;

5. The requirement that “dorm lists” to be used as proof of residence include

citizenship information is unconstitutional under the First and Fourteenth

Amendments to the United States Constitution;

6. The increase of the durational residency requirement from 10 days to 28 days is



7. The prohibition on distributing absentee ballots by fax or email is unconstitutional

under the First and Fourteenth Amendments to the United States Constitution;

8. The prohibition on using expired, but otherwise qualifying, student IDs is



9. Plaintiffs’ request for a permanent injunction is GRANTED, and defendants are

permanently enjoined from enforcing any of the provisions held unlawful in

sections 1 through 8 of this ORDER;

10. Defendants, and their officers, agents, servants, employees, attorneys, and all those

acting in active concert or participation with them, or having actual or implicit

knowledge of this order, are further ORDERED to:


119

a. Promptly issue a credential valid as a voting ID to any person who

enters the IDPP or who has a petition pending;

b. Provide that any such credential has a term of expiration equivalent to

that of a Wisconsin driver license or photo ID and will not be cancelled

without cause;

c. Inform the general public that credentials valid for voting will be issued

to persons who enter the IDPP;

d. Further reform the IDPP so that qualified electors will receive a

credential valid for voting without undue burden, consistent with this

opinion;

11. Provisions 10.a. through 10.d. are to be effectuated within 30 days so that they

will be in place and available for voters well before the November 8, 2016,

election.

12. The court retains jurisdiction to oversee compliance with the injunction;

13. The court intends this ruling to be immediately appealable; for the avoidance of

doubt, the court grants permission to any party to file an interlocutory appeal if

this order is not final for appeal purposes.

Entered July 29, 2016.

BY THE COURT:

/s/

________________________________________

JAMES D. PETERSON

District Judge


UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN

RUTHELLE FRANK, et al., on behalf of themselves and all others similarly situated, Plaintiffs, v. SCOTT WALKER, in his official capacity as Governor of the State of Wisconsin, et al., Defendants.

Civil Action No. 2:11-cv-01128 (LA) ORAL ARGUMENT REQUESTED

PLAINTIFFS’ MOTION FOR PERMANENT INJUNCTION, CLASS CERTIFICATION, AND JUDGMENT ON REMAINING AS-APPLIED CLAIMS

Plaintiffs, through their counsel, respectfully move this Court to grant Plaintiffs’ pending

motion for class certification with respect to Classes 1, 3, 4, and 6, enter judgment in favor of

Plaintiffs on their claims asserted on behalf of such classes, and enter judgment and a permanent

injunction requiring Defendants and their agents to:

(1) Accept the following photo identification documents for purposes of voting:

a. A photo identification card issued by the U.S. Department of Veterans Affairs;

b. An unexpired photo identification card issued by a “technical college,” as that term is defined in Wis. Stat. § 38.001, that is accredited as defined in Wis. Stat. § 39.30(1)(2), that contains the date of issuance and signature of the individual to whom it is issued and that contains an expiration date indicating that the card expires no later than 2 years after the date of issuance if the individual establishes that he or she is enrolled a student at the technical college on the date that the card is presented; and

c. An operator’s license issued by any state that is unexpired or if expired has expired after the date of the most recent general election.

1



(2) Permit electors without the required forms of photo identification to vote on the same

terms as electors with such identification if the elector executes an affidavit that

affirms their identity, states that he or she lacks one of the required proofs of

identification, states that he or she has a reasonable impediment to obtaining ID and

identifies which impediment that is from a list included on the affidavit form;

(3) Send individualized, mailed notice to each registered voter listed in the Statewide

Voter Registration System database, and inform them clearly and in language

appropriate for persons with limited education about Act 23’s requirements, how they

can obtain ID if necessary, this Court’s injunction, and any exemptions that might

apply; and

(4) Send individualized, mailed notice to each registered voter currently or previously

listed on a permanent absentee list and to each facility, including but not limited to

nursing homes and group homes, and inform them clearly that they (or their residents)

may be exempt from Act 23 and how to vote if they are exempt, and also how they

can obtain ID if they are not exempt.

In support of this Motion, Plaintiffs concurrently submit a Memorandum of Law in

support of the Motion and a Proposed Order, which are hereby incorporated within this Motion

by reference.

Dated this 26th day of March 2015,

Respectfully submitted, /s/ Sean J. Young DALE E. HO

2



SEAN J. YOUNG SOPHIA LIN LAKIN American Civil Liberties Union Foundation, Inc. 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2693 [email protected] [email protected] [email protected] LAUGHLIN MCDONALD American Civil Liberties Union Foundation, Inc. 230 Peachtree Street, Suite 1440 Atlanta, GA 30303 (404) 523-2721 [email protected] KARYN L. ROTKER State Bar No. 1007719 LAURENCE J. DUPUIS State Bar No. 1029261 American Civil Liberties Union of Wisconsin Foundation 207 East Buffalo Street, Suite 325 Milwaukee, WI 53202 (414) 272-4032 [email protected] [email protected] NEIL A. STEINER Dechert LLP 1095 Avenue of the Americas New York, NY 10036 (212) 698-3822 [email protected] CRAIG G. FALLS Dechert LLP 1900 K Street NW Washington, DC 20006 (202) 261-3373 [email protected]

3



mailto:[email protected]



ANGELA M. LIU Dechert LLP 77 West Wacker Drive, Suite 3200 Chicago, IL 60601 (312) 646-5816 [email protected] TRISTIA BAUMAN National Law Center on Homelessness & Poverty 2000 M Street NW, Suite 210 Washington, DC 20036 (202) 638-2535 [email protected]

4




UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN

RUTHELLE FRANK, et al., on behalf of themselves and all others similarly situated, Plaintiffs, v. SCOTT WALKER, in his official capacity as Governor of the State of Wisconsin, et al., Defendants.

Civil Action No. 2:11-cv-01128 (LA) ORAL ARGUMENT REQUESTED

MEMORANDUM OF LAW IN SUPPORT OF

PLAINTIFFS’ MOTION FOR PERMANENT INJUNCTION, CLASS CERTIFICATION, AND JUDGMENT ON REMAINING AS-APPLIED CLAIMS



TABLE OF CONTENTS

PROCEDURAL BACKGROUND ................................................................................................. 3

ARGUMENT .................................................................................................................................. 5

I. THE SEVENTH CIRCUIT’S MANDATE DID NOT RESOLVE PLAINTIFFS’ OUTSTANDING, AS-APPLIED CLAIMS ............................................................................... 5

II. ACT 23 VIOLATES THE EQUAL PROTECTION CLAUSE AS APPLIED TO VETERANS BY ARBITRARILY EXCLUDING THE USE OF VETERANS’ ID FOR VOTING ..................................................................................................................................... 9

III. ACT 23 VIOLATES THE EQUAL PROTECTION CLAUSE AS APPLIED TO TECHNICAL COLLEGE STUDENTS BY ARBITRARILY OBSTRUCTING USE OF TECHNICAL COLLEGE ID FOR VOTING .......................................................................... 10

IV. ACT 23 IMPOSES AN UNCONSTITUTIONAL POLL TAX ON VOTERS WITH OUT-OF-STATE DRIVER LICENSES BY REQUIRING THEM TO SURRENDER THESE LICENSES IN ORDER TO VOTE .......................................................................................... 13

V. ACT 23 IMPOSES UNCONSTITUTIONAL BURDENS ON CLASS 1 VOTERS BY FAILING TO PROVIDE A NARROW EXEMPTION FOR THOSE VOTERS .................... 16

CONCLUSION ............................................................................................................................. 20

1



Plaintiffs respectfully submit this memorandum of law in support of their motion for a

permanent injunction, class certification, and judgment on their remaining as-applied claims,

which are now ripe for adjudication.

This Court previously entered judgment in favor of Plaintiffs and enjoined the

enforcement of Wisconsin’s voter ID law based solely on Section 2 of the Voting Rights Act and

the invalidity of Act 23 in its entirety under the Anderson-Burdick framework. (Dkt. #195 at 38-

39, 68.) See Anderson v. Celebrezze, 460 U.S. 780, 788-89 (1983); Burdick v. Takushi, 504 U.S.

428, 434 (1992); Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008). The Court

explicitly stated that it was not ruling on Plaintiffs’ remaining claims, including several narrower

as-applied challenges to Act 23’s photo identification provisions (hereinafter “Act 23”), and their

corresponding motion for class certification. (Dkt. #195 at 2, 69.) The Court of Appeals for the

Seventh Circuit subsequently reversed, finding error solely with respect to the claims that were

adjudicated by this Court. Frank v. Walker, 768 F.3d 744 (7th Cir. 2014) (“Frank II”). The

United States Supreme Court denied certiorari, and the mandate issued on March 25, 2015.

(Dkt. #221.)

Now that the case has returned to this Court, the claims left unresolved are ripe for

adjudication. Plaintiffs thus respectfully request that the Court certify Plaintiffs’ proposed

putative classes and enter judgment in favor of Plaintiffs on certain remaining as-applied claims,

which have already been fully tried before this Court. First, this Court should find Defendants

liable on the claims brought by veterans, technical college students, and voters with out-of-state

driver’s licenses, who possess forms of photo identification that Defendants should be required

to accept as identification for voting purposes. Second, this Court should find Defendants liable

2



on the claims brought by voters who lack photo identification and face legal or significant

practical barriers to obtaining photo identification. With respect to remedy, Plaintiffs do not seek

to enjoin Act 23’s photo identification provisions entirely. Rather, Plaintiffs seek limited relief

that is narrowly tailored to each of the ways in which Act 23 is unconstitutional as applied to

these classes of voters.

PROCEDURAL BACKGROUND

This case challenges the manner in which Act 23 discriminates against certain vulnerable

classes of citizens, by requiring that they present one of a few limited forms of photo

identification in order to vote. Throughout the course of this litigation, Plaintiffs have vigorously

pursued several distinct and independent claims in challenging the lawfulness of Act 23. These

claims included not only those under Section 2 of the Voting Rights Act and the Fourteenth

Amendment, but also as-applied constitutional challenges on behalf of narrow classes of citizens

harmed by the law, including: veterans with secure photo identification issued by the U.S.

Veterans’ Administration; technical college students with photo identification that otherwise

complies with the student ID card requirements of Act 23; eligible Wisconsin voters with out-of-

state driver’s licenses; and certain eligible voters who lack photo identification but face legal or

systemic practical barriers to obtaining ID. Class certification was sought for each of these

putative classes. (Dkt. #63, #194 at 92-106.) Plaintiffs sought to enjoin Act 23 in its entirety on

their Section 2 and Fourteenth Amendment claims, and, in the alternative, requested more

limited relief for each of the specific classes, such as expanding the types of photo ID deemed

acceptable for voting and providing an affidavit exception for voters unable to obtain ID. (Dkt.

#194 at 90-92.)

3



On April 29, 2014, this Court entered judgment in Plaintiffs’ favor and enjoined Act 23

in its entirety. Recognizing the principle that courts should generally refrain from reaching

constitutional questions unless it becomes necessary (see Dkt. #195 at 2), the Court “only

address[ed] two of the plaintiffs’ claims—the . . . claim that Act 23 places an unjustified burden

on the right to vote and the claim . . . that Act 23 violates Section 2 of the Voting Rights Act.”

(Dkt. #195 at 2.) The Court specifically noted, “I do not address the Frank plaintiffs’ remaining

claims, which are all constitutional claims.” (Id.) In addition, the Court declined to rule on

Plaintiffs’ motion for class certification, concluding that it was “moot because, as the defendants

concede, all members of the proposed classes will benefit from the permanent injunction whether

or not classes are certified.” (Id. at 69.) Because the Court invalidated the entire statute, it was

also unnecessary for the Court to explicitly distinguish between “facial” and “as-applied”

challenges under Crawford. Accordingly, the Court did not address Plaintiffs’ alternative

requested forms of relief, such as expanding the list of acceptable IDs, or establishing an

affidavit exception, all of which would have satisfied the state’s tenuous interest in deterring

voter impersonation fraud without disenfranchising vulnerable voters in the process.

“[B]y not addressing all constitutional claims,” this Court expressly acknowledged that it

was “leaving the door open to successive appeals.” (Dkt. #195 at 3.) It recognized that should

its judgment be reversed, “the remaining constitutional claims do not overlap substantially with

the Section 2 claim and could more easily be addressed in separate proceedings.” (Id.) The

Seventh Circuit subsequently reversed and vacated this Court’s injunction. The United States

Supreme Court denied certiorari, and the mandate has issued, returning the case to this Court.

Plaintiffs’ remaining claims are now ripe for adjudication.

4



ARGUMENT

I. THE SEVENTH CIRCUIT’S MANDATE DID NOT RESOLVE PLAINTIFFS’ OUTSTANDING, AS-APPLIED CLAIMS

This Court’s initial decision focused solely on Plaintiffs’ claims under the Anderson-

Burdick framework and their claim under Section 2 of the Voting Rights Act, and it enjoined Act

23 in its entirety based on those claims. Thus, at that time, it was unnecessary for the Court to

address Plaintiffs’ remaining claims, though the Court correctly observed that reversal would

necessitate further action. (Dkt. #195 at 3.) In light of the Seventh Circuit’s reversal,

adjudication of Plaintiffs’ remaining claims is now required.

As an initial matter, the Seventh Circuit mandate does not address all of Plaintiffs’

claims. Once a mandate issues, district courts must carefully “determine the scope of [the]

appellate mandate”—which includes both “a certified copy of the judgment” and “a copy of the

court’s opinion,” Fed. R. App. P. 41(a)—“as well as issues not decided expressly or impliedly by

the Court.” Fort Gratiot Sanitary Landfill, Inc. v. Mich. Dept. of Nat. Res., 71 F.3d 1197, 1202

(6th Cir. 1995); see, e.g., Samirah v. Gonzales, No. 03 C 1298, 2006 WL 516580, at *1 (N.D. Ill.

Feb. 28, 2006) (following reversal, noting, “we must only determine whether the Seventh Circuit

dismissed all counts in the complaint, effectively terminating the case, or if it reversed on a

narrow ground”). As the Federal Circuit has explained:

“[A]n appellate mandate governs only that which was actually decided . . . . [E]very appellate court judgment vests jurisdiction in the district court to carry out some further proceedings. . . . Frequently, . . . the disposition of a case in the court of appeals will require the district court to undertake more significant proceedings. In either case, the nature of the district court's remaining tasks is discerned not simply from the language of the judgment, but from the judgment in combination with the accompanying opinion.

5



Exxon Chem. Patents, Inc. v. Lubrizol Corp., 137 F.3d 1475, 1478 & 1483 (Fed. Cir. 1998), cert.

denied, 525 U.S. 877 (1998); see also, e.g., U.S. v. Tranowski, 702 F.2d 668, 671 (7th Cir. 1983),

cert. denied, 468 U.S. 1217 (1984) (“reversal” of judgment of conviction did not necessarily

preclude a new trial given the reasoning of the prior appellate opinion).

Here, the Seventh Circuit’s mandate, as expressed through its opinion, was limited to

Plaintiffs’ claims under Section 2 of the Voting Rights Act; and while it also ruled on Plaintiffs’

Fourteenth Amendment claim, the panel explicitly made a distinction between “facial” versus

“as-applied” challenges under Crawford and then addressed the challenge solely to the extent

that it was a facial attack. See Frank II, 768 F.3d at 751-55 (Section 2), 747 (discussing

Crawford “challenge to Act 23 as written (‘on its face’), rather than to its effects (‘as applied’)”).

The Seventh Circuit also went so far as to equate the Fourteenth Amendment claim it was

addressing with the facial attack that was at issue in Crawford itself. See id.; see also Crawford,

553 U.S. at 188-89 (“We are, however, persuaded that the District Court and the Court of

Appeals correctly concluded that the evidence in the record is not sufficient to support a facial

attack on the validity of the entire state statute . . . .” (emphasis added)). Consistent with that

limitation, the Seventh Circuit focused on Act 23’s impact on the voting population as a whole,

repeatedly emphasizing its belief that nearly all voters should be able to obtain photo

identification without tremendous difficulty, and not on the burden placed on specific groups of

voters. See, e.g., Frank II, 768 F.3d at 749 (“if 22% of the eligible population does not perform

even the easiest step, registration, it is difficult to infer from the fact that 9% have not acquired

photo ID that that step is particularly difficult”); id. (“for most eligible voters not having a photo

ID is a matter of choice rather than a state-created obstacle”). As the Seventh Circuit concluded,

6



“‘[t]he application of the statute to the vast majority of Indiana voters is amply justified by the

valid interest in protecting ‘the integrity and reliability of the electoral process.’ That is true of

Wisconsin as well.” Frank II, 768 F.3d at 755 (quoting Crawford, 553 U.S. at 204) (emphasis

added).

Because the Seventh Circuit addressed and rejected Plaintiffs’ Fourteenth Amendment

claims only to the extent that they were an attack on the validity of the entire statute, Plaintiffs’

remaining as-applied claims, including their corresponding motion for class certification, were

“not decided expressly or impliedly by the [appellate] Court,” Fort Gratiot Sanitary Landfill,

Inc., 71 F.3d at 1202, and should now be adjudicated by this Court. See, e.g., Wisconsin Right to

Life, Inc. v. FEC, 546 U.S. 410 (2006) (per curiam) (where prior Supreme Court decision upheld

law against facial attack, district court erred by construing the decision as precluding an as-

applied challenge). Plaintiffs’ as-applied challenges on behalf of certain classes focus on

“discrete and well-defined instances” in which Act 23 imposes unconstitutional burdens that

require judicial resolution. Gonzales v. Carhart, 550 U.S. 124, 167 (2007) (quotations and

citation omitted).1 In addition, they seek remedies narrowly tied to the specific harms alleged by

each as-applied claim, as opposed to invalidation of the entire law. See Ctr. for Individual

Freedom v. Madigan, 697 F.3d 464, 475 (7th Cir. 2012) (while “facial challenges and as-applied

challenges can overlap conceptually[,] . . . there is a difference: Where the claim and the relief

that would follow reach beyond the particular circumstances of the plaintiffs, they must satisfy

1 See also Ezell v. City of Chicago, 651 F.3d 684, 697 (7th Cir. 2011) (“[i]n a facial constitutional challenge, individual application facts do not matter. Once standing is established, the plaintiff’s personal situation becomes irrelevant. It is enough that we have only the statute itself and the statement of basis and purpose that accompanied its promulgation.” (citations, quotations, and internal alterations omitted)).

7



the standards for a facial challenge to the extent of that reach.” (citations, quotations, and internal

quotations omitted)). The fact that Plaintiffs did not succeed on their challenges to the validity

of the entire statute on appeal, moreover, is not dispositive on the merits of their as-applied

challenges. See, e.g., Gonzales, 550 U.S. at 168 (rejecting challenge to the validity of the entire

statute but noting that “[t]he Act is open to a proper as-applied challenge in a discrete case”).2

For these reasons, this Court may, and should, act upon Plaintiffs’ remaining claims,

which have been fully tried before this Court. As discussed below, this Court should first find

that Act 23 unconstitutionally prevents veterans with secure photo identification issued by the

U.S. Veterans’ Administration, technical college students with photo identification that

otherwise complies with the student ID card requires of Act 23, and eligible Wisconsin voters

with out-of-state driver’s licenses from using their respective forms of photo identification to

vote. These photo identification cards are materially indistinct from the forms of identification

accepted under Act 23, and there is no adequate justification for their exclusion; this Court

should order Defendants to accept these forms of identification for voting purposes. Second, this

Court should find that Act 23 unconstitutionally fails to provide an exception for voters who lack

photo identification and face legal or systemic practical barriers to obtaining them, and should

order a limited remedy that will prevent these voters from being disenfranchised.

2 See, e.g., Flying J, Inc. v. Van Hollen, 621 F.3d 658, 666 (7th Cir. 2010) (“Our disposition of this facial challenge does not preclude a future plaintiff . . . from bringing an as-applied challenge to the Act . . . .”); Lee v. Keith, 463 F.3d 763, 769-70 (7th Cir. 2006) (despite previously upholding statute requiring independent candidates to file signatures before partisan primaries, court could invalidate statute in subsequent case, because “historical record” demonstrated that early deadline resulted in “complete exclusion of independents” from the ballot).

8



II. ACT 23 VIOLATES THE EQUAL PROTECTION CLAUSE AS APPLIED TO VETERANS BY ARBITRARILY EXCLUDING THE USE OF VETERANS’ ID FOR VOTING

For the reasons outlined in Plaintiffs’ post-trial brief (see Dkt. #194 at 92-96, 103-04),

this Court should certify as a class veterans who possess secure photo identification cards issued

by the U.S. Veterans’ Administration (“VA ID”) (Class 6), and find that Act 23 violates the

Equal Protection Clause as applied to that class. “‘[I]nvidious’ distinctions cannot be enacted

without a violation of the Equal Protection Clause.” Williams v. Rhodes, 393 U.S. 23, 30 (1998).

In particular, a statute cannot exclude a certain class of people from its protections while at the

same time extending its protection to those who are similarly situated in all material respects.

See, e.g., Ctr. for Inquiry, Inc. v. Marion Circuit Ct. Clerk, 758 F.3d 869, 874-75 (7th Cir. 2014)

(violation of Equal Protection Clause to preclude secular humanists from solemnizing marriages

while allowing religious groups with similar values to do so).

Here, Act 23 arbitrarily excludes the use of secure VA IDs, even as it accepts photo ID

issued by the U.S. military. This was done even after Wisconsin’s top elections official

specifically recommended the inclusion of VA IDs. (Fr. Exs. 1 at 2, 2 at 3, Tr. 871:10-22.)

There is no adequate justification for excluding holders of VA ID cards from the franchise when

their photo identification cards are materially identical to the forms of ID that Wisconsin accepts

under Act 23. Although Defendants argue that VA IDs are excluded because they do not include

an expiration or issuance date, and because the photograph may not be current (Dkt. #176 at

123), they conceded at trial that some military and tribal ID cards accepted under Act 23 also

lack expiration dates (Tr. 1965:5-18), Wis. Stat. § 5.02(6m)(a)(3), (6m)(e); and that Act 23

allows the use of DMV-issued ID with photos that are as much as 16 years old (Tr. 1850:11-22),

9



Wis. Stat. § 343.50(5)(a)3. Veterans, many of whom are homeless or marginally housed (Tr.

1637:1-7), should not be prevented from participating in the democracy that they have risked

their lives to protect. Cf. Carrington v. Rash, 380 U.S. 89, 97 (1965) (“The uniform of our

country must not be the badge of disfranchisement for the man or woman who wears it.”

(citation and internal alterations omitted)).

Accordingly, this Court should enter an injunction requiring Defendants to accept VA

IDs as identification for voting purposes.3

III. ACT 23 VIOLATES THE EQUAL PROTECTION CLAUSE AS APPLIED TO TECHNICAL COLLEGE STUDENTS BY ARBITRARILY OBSTRUCTING USE OF TECHNICAL COLLEGE ID FOR VOTING

Similarly, this Court should certify a class of Wisconsin technical college students who

have photo ID otherwise acceptable under the student ID provisions of Act 23 (Class 4) for the

reasons outlined in Plaintiffs’ post-trial brief (see Dkt. #194 at 92-96, 102), and find that Act 23

violates the Equal Protection Clause as applied to that class. Act 23 allows student IDs from

other Wisconsin colleges and universities to be used for voting if the school is accredited and the

card has a signature, issuance date, and an expiration date not later than two years after the date

of issuance. Wis. Stat. § 5.02(6m)(f). But, without justification, Wisconsin legislators have

impeded the use of student IDs satisfying the exact same date and signature requirements that are

3 A plaintiff seeking a permanent injunction must demonstrate: “(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). As explained in the post-trial brief, Plaintiffs have amply satisfied these factors here. (Dkt. #194 at 88.)

10



issued by two-year Wisconsin technical colleges, which are also accredited by Wisconsin.4

Technical college ID cards are materially identical to the student ID cards acceptable under Act

23, with the only difference being that the holder attends a state-operated, accredited technical

college (which are generally two-year colleges) instead of other private and state-run colleges

and universities (most of which are four-year institutions). As discussed above, the law is clear.

A statute cannot exclude a certain class of people from its protections while at the same time

extending its protection to those who are similarly situated in all material respects. See, e.g., Ctr.

for Inquiry, Inc., 758 F.3d at 874-75.

Defendants’ post-trial brief does not even attempt to proffer a justification for this

differential treatment. Instead, Defendants merely suggest the issue is moot, since the Wisconsin

Government Accountability Board (“GAB”) has determined that accredited technical college IDs

that satisfy the signature and date requirements could be acceptable for voting. (Dkt. #176 at

120-21; see also Tr. 879:12-16, Fr. Ex. 5 at 2-4.) However, the Wisconsin legislature’s Joint

Committee for the Review of Administrative Rules (JCRAR) refused to accept the GAB’s

determination and required the GAB to formally promulgate administrative rules. (Tr. 879:8-11,

880:4-9; see also Dkt. #195 at 5.) Those rules have not been promulgated, and they could again

be blocked by the legislature or the governor (Fr. Ex. 372, Tr. 882:8-883:14), thus precluding the

use of technical college ID for voting.

4 Indeed, it is presumably easier for Wisconsin technical colleges to adapt their IDs to satisfy the two-year issuance-expiration date requirements (see, e.g., Tr. 389:8-390:7), precisely because the Wisconsin Technical College System issues two-year degrees. See Wis. Stat. §§ 38.001(1m) (technical colleges “responsible for . . . programs . . . below the baccalaureate level, including associate degrees . . .”); 38.01(1) (“‘Associate degree program’ means a 2-year, post-high school program . . .”).

11



In addition, this uncertain regime will result in disparate and arbitrary application of the

technical college ID procedures throughout the state, in violation of the Constitution, see Bush v.

Gore, 531 U.S. 98, 104-05 (2000), because different elections officials have offered different

opinions about whether technical college IDs are acceptable for voting at all. (Compare Tr.

1957:23-1958:4 (GAB opinion that technical college IDs could be used to vote during February

2012 election when Act 23 was in effect), with Def. Ex. 1109 at 1 (Milwaukee Election

Commissioner Robert Spindell asserting that technical college IDs are not valid for voting).)

Defendants point to the testimony of Michael Haas, GAB Elections Division Administrator, for

supposed clarity on the issue (Dkt. #176 at 121), but not even Mr. Haas could provide a straight

answer when directly questioned by this Court as to whether technical college students could

vote with their student identification cards. (Tr. at 1968:1-19 (“Q. So if the photo ID law is in

effect, then what’s the status of . . . tech students relative to the law? . . . A. Well, I think a lot of

it depends upon the timing. . . .”). Eligible voters with Wisconsin technical college IDs cannot

be constitutionally subject to a regime “so completely devoid of standards and restraints.”

Louisiana v. U.S., 380 U.S. 145, 153 (1965). And as a result of this legal state of limbo,

technical college students also may be needlessly challenged—and intimidated—at the polls on a

basis that is inapplicable to most other voters. (Tr. 1958:5-7; 1968:2-13.)

Because technical colleges are accredited under Wisconsin law, Defendants have offered

no reason why accredited Wisconsin technical college IDs, if otherwise compliant with the

student ID rules of Act 23, should not be accepted on the same terms as IDs from four-year

Wisconsin colleges and universities. Accordingly, this Court should enter an injunction deeming

12



accredited Wisconsin technical college photo IDs, if otherwise compliant with the student ID

requirements of Act 23, to be acceptable forms of identification for voting purposes.

IV. ACT 23 IMPOSES AN UNCONSTITUTIONAL POLL TAX ON VOTERS WITH OUT-OF-STATE DRIVER LICENSES BY REQUIRING THEM TO SURRENDER THESE LICENSES IN ORDER TO VOTE

Next, this Court should, on behalf of Wisconsin voters with out-of-state driver’s licenses

(Class 3), certify that class for the reasons outlined in Plaintiffs’ post-trial brief. (See Dkt. #194

at 92-96, 101-02.) In addition, it should find that Act 23 imposes an unconstitutional poll tax on

that class in violation of the Twenty-Fourth Amendment and the Fourteenth Amendment by

requiring members of that class to surrender their out-of-state driver’s licenses (and lose the

ability to drive) in order to obtain “free” ID to vote. See Harman v. Forssenius, 380 U.S. 528,

538-39 (1965) (Twenty-Fourth Amendment); Harper v. Va. Bd. of Elections, 383 U.S. 663, 670

(1966) (Fourteenth Amendment). The Constitution prohibits not only poll taxes as such, but also

the imposition of any “material requirement . . . upon those who refuse to surrender their

constitutional right to vote,” and it “nullifies sophisticated as well as simple-minded modes of

impairing the right guaranteed.” Harman, 380 U.S. at 540, 540-41; see, e.g., id. at 544 (requiring

certificate of residence tantamount to poll tax). Whether the voter is able to satisfy the material

requirement is irrelevant; that the voter is subject to that requirement at all is constitutionally

unacceptable. See Common Cause / Georgia v. Billups, 554 F.3d 1340, 1352 (11th Cir. 2009),

cert. denied, NAACP v. Billups, 556 U.S. 1282 (2009).

Under Act 23, voters cannot use out-of-state driver’s licenses as an acceptable form of

voter identification. See Wis. Stat. § 5.02(6m)(a)-(f). And voters with out-of-state licenses are

prohibited from obtaining a “free” Wisconsin photo ID card to vote unless they surrender those

13



licenses. (Tr. 828:14-18, 1113:7-16.) These voters then face three choices: (1) If such voters

want to obtain a “free” Wisconsin ID to vote, they must, as noted above, surrender their out-of-

state driver’s license and give up their driving privileges. (See, e.g., Tr. 1794:18-1975:16 (Diane

Hermann-Brown helped elderly mother surrender her out-of-state driver’s license, including her

driving privileges, in exchange for a Wisconsin ID to vote).) (2) If such voters want to retain

their ability to drive and their right to vote, they must pay money for a Wisconsin’s driver’s

license (and surrender their out-of-state license), see Wis. Stat. §§ 343.11, 343.21, or pay money

for another acceptable form of ID such as a passport. (See, e.g., Tr. 693:20-694:7, 696:7-24

(Samantha Meszaros declined to surrender Illinois driver’s license, which she used almost

exclusively when she was visiting her parents at home, and paid $100 for a passport).) (3) If

such voters want to retain their ability to drive and not pay money, then they cannot vote. (See,

e.g., Tr. 974:4-976:3, 980:25-981:2 (Matthew Dearing declined to surrender New York driver’s

license, which he seldom used in Wisconsin, and was unable to vote in February 2012 election).)

Forcing voters into this Hobson’s choice is offensive to the Constitution. See, e.g., Harman, 380

U.S. at 541-42 (forcing voters to choose between paying money and going through a

“cumbersome procedure” to submit certificate of residence was an unconstitutional poll tax).

Defendants’ post-trial brief does not dispute that forcing eligible Wisconsin voters to

surrender their out-of-state driver’s licenses in exchange for the right to vote would be an

unconstitutional poll tax. Instead, Defendants argue that this is a claim without a plaintiff,

because there is supposedly no such thing as a voter who is eligible to vote in Wisconsin and

who legitimately has an out-of-state driver’s license. (Dkt. #176 at 112-14.) According to

Defendants, “[a]n individual cannot be a resident of one state for driving (Wisconsin) and a

14



resident of another state for voting (non Wisconsin). If one is a resident for one of these

purposes, one is a resident for the other.” (Dkt. #176 at 112 (citations omitted).)

But this is simply wrong. As Wisconsin’s top elections official explained at trial, having

an out-of-state driver’s license is “not conclusive evidence that [such voters] lack the intent to

be[] a resident for voting purposes.” (Tr. 873:3-24.) GAB is clear that these voters include

students from out-of-state who go to school and lawfully vote in Wisconsin, and “snowbirds,”

people who live part year in Wisconsin and part in other states but vote only in Wisconsin;5 and

GAB has acknowledged that many of these people drive seldom, if at all, in Wisconsin. (Tr.

874:5-15.) Defendants nevertheless point to the supposed similarities in language between Wis.

Stat. § 343.01(2)(g), which defines residence for purposes of driving, and subsection (1) of Wis.

Stat. § 6.10, which defines residence for purposes of voting (see Dkt. #176 at 112), but

Defendants ignore subsections (2) through (13) of Wis. Stat. § 6.10, which sets forth twelve other

criteria used to determine residence for voting purposes. These separate subsections expressly

address both students, see id. § 6.10(4), (12), and people who do not live full-time in Wisconsin,

see id. § 6.10(5). States cannot use crude and inaccurate proxies, such as the mere possession of

an out-of-state driver’s license, as conclusive proof that a voter does not satisfy the state’s

residency requirements for voting. See Carrington, 380 U.S. at 94-95 (state could not

categorically bar military voters from voting simply because they tend to be “transient” and less

5 (See Fr. Ex. 1 at 3 (“Wisconsin law permits out-of-state students to vote in Wisconsin elections if they have established a 10-day [now 28-day] physical presence and intend the presence to be their residence for voting purposes. . . . These students may want to keep their out-of-state license because they may return to their home state for vacations or summer employment.”), Tr. 1687:14-1688:21 (GAB’s Ross Hein aware of at least 10 snowbirds who are eligible to vote in Wisconsin but have out-of-state driver’s licenses).)

15



likely to satisfy Texas’s residency requirement for voting, in place of “more precise tests to

determine the bona fides of an individual claiming to have actually made his home in the State

long enough to vote”).

Defendants try to deflect the blame for this poll tax by noting that “existing motor vehicle

laws[, not Act 23,] have always required a Wisconsin resident that drives here to have a

Wisconsin driver license.” (Dkt. #176 at 112-13.) But a voting restriction cannot be immune to

challenge simply because it relies on a separate bureaucratic procedure unrelated to voting to

impede access to the ballot. Cf., e.g., Gray v. Johnson, 234 F. Supp. 743, 746 (S.D. Miss. 1964)

(three-judge court holding that requiring voters to go through the burdensome procedure of

obtaining “poll tax receipts within a fixed time from the sheriff who is not an election official”

violated Twenty-Fourth Amendment).

Accordingly, to avoid the imposition of an unconstitutional poll tax, this Court should

enter an injunction deeming out-of-state driver’s licenses (that are unexpired or have expired

since the last general election, which are the same requirements applicable to in-state driver’s

licenses) to be acceptable forms of identification for voting purposes.

V. ACT 23 IMPOSES UNCONSTITUTIONAL BURDENS ON CLASS 1 VOTERS BY FAILING TO PROVIDE A NARROW EXEMPTION FOR THOSE VOTERS

Act 23 also violates the Fourteenth Amendment as applied to Class 1, which was left

uncertified in this Court’s last ruling: eligible Wisconsin voters who lack photo ID and face

systemic practical barriers to obtaining an ID. Act 23 does not provide any fail-safe for these

voters, such as allowing them to execute an affidavit at the polling place in lieu of presenting

qualifying identification. See, e.g., South Carolina v. U.S., 898 F. Supp. 2d 30, 35-38, 40-41

(D.D.C. 2012) (allowing voters without ID to vote at polling place with affidavit attesting to

16



“reasonable impediment” to obtaining ID, with the affidavit containing a non-exhaustive list of

impediments voters could check off); cf. Crawford, 553 U.S. at 186 (voters who are “indigent”

may vote by affidavit). Had such an exception been provided, Ruthelle Frank would not have

had to ensure that her birth records needed to conform to other documents (Fr. Ex. 606); Eddie

Lee Holloway, Jr. would not have had to spend $180 on a bus trip to Illinois in an unsuccessful

effort to comply with DMV’s demand that he amend the birth records he had in his possession so

as to conform to his social security records (Tr. 44:12-52:1); Melvin Robertson, whose birth

certificate does not exist and who lacks any other evidence of birth, would not have had to try in

vain to find 80-year-old elementary school records (Tr. 400:20-402:10); and DeWayne Smith

would not have had to make three or four trips to Social Security, a trip to Froedert Hospital, and

two trips to DMV—all by bus or in reliance upon others who drove—to obtain the Social

Security card that DMV demanded (Tr. 856:9-859:9). None of these class members would have

had to go through these obstacles just to exercise their fundamental right to vote. Even if

enjoining Act 23 entirely is too broad a remedy for these class members, a more limited option,

such as the affidavit exception described above, is entirely appropriate. See Wis. Right to Life,

Inc. v. Paradise, 138 F.3d 1183, 1186-87 (7th Cir. 1998), cert. denied, 525 U.S. 873 (1998)

(court should generally confine remedy to nature of the harm alleged by the as-applied claim).6

This Court should therefore certify Class 1 for the reasons outlined in Plaintiffs’ post-trial

brief (see Dkt. #194 at 92-99), and focus on the application of Act 23 to that class. The specific

6 To the extent that this Court believes that Frank II’s facial ruling requires it to dismiss these as-applied challenges, Plaintiffs respectfully contend that Frank was wrongly decided given its non-record-based application of Crawford and its many factual and legal inaccuracies. See Frank v. Walker, 773 F.3d 783 (7th Cir. 2014) (Posner, J., dissenting from denial of rehearing en banc). Plaintiffs thus preserve that argument should it become necessary to make on appeal.

17



burdens faced by these voters are detailed in Plaintiffs’ post-trial brief (Dkt. #194 at 10-26), and

include transportation barriers, inaccessible DMV locations, and missing or misspelled birth

certificates or social security cards. They amply demonstrate that these tens of thousands of

voters face substantial difficulties obtaining photo identification and are likely to be deterred

from voting in future elections. This Court should therefore enter judgment in Plaintiffs’ favor

on this as-applied claim.

With respect to remedy, this Court should find that the most practicable way to remedy

the harms to these specific voters is an injunction allowing Wisconsin voters without acceptable

forms of ID to vote at the polling place by signing an affidavit, under penalty of perjury,

affirming their identity, their lack of acceptable identification, and the existence of a reasonable

impediment beyond their control that has prevented them from obtaining ID. The affidavit

should provide examples of reasonable impediments that the elector may check off, see South

Carolina, 898 F. Supp. 2d at 40-41, and “any reason asserted by the voter on the reasonable

impediment affidavit for not having obtained a photo ID must be accepted . . . unless the

affidavit is ‘false,’” id. at 36. This will alleviate the unique burdens imposed on this specific

class of voters without undermining the state’s purported interest in deterring in-person voter

impersonation fraud. See id. (“the reasonable impediment affidavit simply helps to ensure that

voters with non-photo voter registration cards are who they say they are”).7

7 Providing an affidavit option would also provide complete alternative relief to voters with VA ID, technical college ID, and out-of-state drivers’ licenses, as well as with respect to Plaintiffs’ Claims 7 and 8, which demonstrate that Act 23’s implementation will be inconsistent, chaotic, and fundamentally unfair, in violation of the Equal Protection and Due Process Clauses.

18



In addition, the record is clear that, notwithstanding the extensive confusion among clerks

and voters alike about the specific and complicated requirements and exemptions under Act 23,

no individualized notice was provided to voters who will need ID to vote, or to those who may

be exempt from these requirements but do not realize that they are. (Tr. 913:23-914:18; 1646:2-

1648:17; 1960:6-12.) Many of these voters either do not know that they must obtain ID, or will

go through extraordinary efforts to obtain ID because they do not realize that they fall within Act

23’s narrow exemptions. (See, e.g., Fr. Ex. 608 at 14:7-15:4 (Ruth Ann Obermeyer did not know

she might fall under the “indefinitely confined” exception to Act 23).) To remedy this

significant burden, this Court should require that Defendants send individualized, mailed notice

to each registered voter listed in the Statewide Voter Registration System database; and inform

them clearly and in language appropriate for persons with limited education about Act 23’s

requirements, how they can obtain or renew ID if necessary, this Court’s injunction, and any

exemptions that might apply. In addition, this Court should order Defendants to send

individualized, mailed notice to each registered voter currently or previously listed in on a

permanent absentee list and to each facility (including but not limited to nursing homes and

group homes); and clearly inform them that they (or their residents) may be exempt from Act 23,

how to vote if they are exempt, and also how they can obtain ID if they are not exempt.

19



CONCLUSION

For the foregoing reasons, this Court should grant Plaintiffs’ motion for class certification

and enter judgment in favor of Plaintiffs on their as-applied claims. In addition, the Court should

enter an injunction as set forth in the proposed order attached to this motion.

Dated this 26th day of March 2015,

Respectfully submitted, /s/ Sean J. Young DALE E. HO SEAN J. YOUNG SOPHIA LIN LAKIN American Civil Liberties Union Foundation, Inc. 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2693 [email protected] [email protected] [email protected] LAUGHLIN MCDONALD American Civil Liberties Union Foundation, Inc. 230 Peachtree Street, Suite 1440 Atlanta, GA 30303 (404) 523-2721 [email protected] KARYN L. ROTKER State Bar No. 1007719 LAURENCE J. DUPUIS State Bar No. 1029261 American Civil Liberties Union of Wisconsin Foundation 207 East Buffalo Street, Suite 325 Milwaukee, WI 53202

20





(414) 272-4032 [email protected] [email protected] NEIL A. STEINER Dechert LLP 1095 Avenue of the Americas New York, NY 10036 (212) 698-3822 [email protected] CRAIG G. FALLS Dechert LLP 1900 K Street NW Washington, DC 20006 (202) 261-3373 [email protected] ANGELA M. LIU Dechert LLP 77 West Wacker Drive, Suite 3200 Chicago, IL 60601 (312) 646-5816 [email protected] TRISTIA BAUMAN National Law Center on Homelessness & Poverty 2000 M Street NW, Suite 210 Washington, DC 20036 (202) 638-2535 [email protected]

21





1

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF WISCONSIN

RUTHELLE FRANK, et al., on behalf of

themselves and all others similarly situated,

Plaintiffs,

v.

SCOTT WALKER, in his official capacity as

Governor of the State of Wisconsin, et al.,

Defendants.

Civil Action No. 2:11-cv-01128 (LA)

ORAL ARGUMENT

REQUESTED

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION, LEAVE TO FILE

SUPPLEMENTAL PLEADING, AND CLASS CERTIFICATION

Plaintiffs, through their counsel, respectfully move this Court to grant Plaintiffs’ motion

for a preliminary injunction, leave to file a supplemental pleading, and class certification.

Plaintiffs request a preliminary injunction ordering Defendants and their agents to:

(1) Create an affidavit in simple language that would allow voters without acceptable

identification for voting to cast a regular ballot at the polling place or an absentee

ballot, by affirming that they face a “reasonable impediment” to obtaining acceptable

identification. The form should have boxes that a voter may check for “lack of

transportation,” “disability or illness,” “lack of birth certificate,” “work schedule,”

“family responsibilities,” and “other reasonable impediment.” The form shall require

a further brief written explanation from the voter only if he or she checks the “other

reasonable impediment” box on the form. Any reason that the voter subjectively

deems reasonable should suffice.



2

(2) Send an individualized mailing to all registered voters who do not appear in the DMV

database as having acceptable photo ID, informing them about the voter ID law and

the affidavit option.

(3) Include the affidavit option in any publicity materials related to the voter ID law.

In support of this Motion, Plaintiffs concurrently submit a Memorandum of Law in

support of the Motion and a Proposed Order, which are hereby incorporated within this Motion

by reference.

KARYN L. ROTKER

State Bar No. 1007719

LAURENCE J. DUPUIS


American Civil Liberties Union of Wisconsin

Foundation

207 East Buffalo Street, Suite 325

Milwaukee, WI 53202

(414) 272-4032

[email protected]

[email protected]

NEIL A. STEINER

Dechert LLP

1095 Avenue of the Americas

New York, NY 10036

(212) 698-3822

[email protected]

CRAIG G. FALLS

Dechert LLP

1900 K Street NW

Washington, DC 20006

(202) 261-3373

[email protected]

Dated this 10th day of June 2016,

Respectfully submitted,

/s/ Sean J. Young

SEAN J. YOUNG

DALE E. HO

SOPHIA LIN LAKIN

American Civil Liberties Union Foundation,

Inc.

125 Broad Street, 18th Floor

New York, NY 10004

(212) 549-2693

[email protected]

[email protected]

[email protected]

LAUGHLIN MCDONALD


Inc.

230 Peachtree Street, Suite 1440

Atlanta, GA 30303

(404) 523-2721

[email protected]

TRISTIA BAUMAN

National Law Center on Homelessness &

Poverty

2000 M Street NW, Suite 210


(202) 638-2535






3

ANGELA M. LIU

Dechert LLP

35 West Wacker Drive, Suite 3400

Chicago, IL 60601

(312) 646-5816

[email protected]

[email protected]






RUTHELLE FRANK, et al., on behalf of

themselves and all others similarly situated,

Plaintiffs,

v.

SCOTT WALKER, in his official capacity as

Governor of the State of Wisconsin, et al.,

Defendants.

Civil Action No. 2:11-cv-01128 (LA)

ORAL ARGUMENT

REQUESTED

MEMORANDUM OF LAW IN SUPPORT OF

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION,

LEAVE TO FILE SUPPLEMENTAL PLEADING, AND CLASS CERTIFICATION



i

TABLE OF CONTENTS

SUMMARY .................................................................................................................................... 1

PROCEDURAL BACKGROUND ................................................................................................. 2

ARGUMENT .................................................................................................................................. 4

I. PLAINTIFFS ARE ENTITLED TO A PRELIMINARY INJUNCTION IN THE

FORM OF A “REASONABLE IMPEDIMENT” AFFIDAVIT .................................. 4

A. Plaintiffs Are Likely To Succeed On The Merits ................................................... 5

1. Voters with name mismatches in an underlying document .............................. 7

2. Voters who must contend with multiple agencies ............................................ 8

3. Voters with nonexistent or unavailable birth records ..................................... 11

B. The Remaining Preliminary Injunction Factors Favor Allowing Voters to Cast a

Regular Ballot With A “Reasonable Impediment” Affidavit ............................... 17

1. The affidavit should be available to voters who face a “reasonable

impediment” to obtaining acceptable ID ........................................................ 18

2. The affidavit should allow voters to cast a regular ballot at the polling place,

not a provisional ballot.................................................................................... 20

3. The affidavit option must be widely and understandably publicized by the

State................................................................................................................. 21

II. THE COURT SHOULD GRANT PLAINTIFFS’ LEAVE TO FILE A

SUPPLEMENTAL PLEADING, WHICH INCLUDES NEW PLAINTIFFS

RECENTLY HARMED BY THE LAW .................................................................... 22

III. THE COURT SHOULD GRANT PLAINTIFFS’ MOTION FOR CLASS

CERTIFICATION ...................................................................................................... 23

A. Plaintiffs Satisfy the Prerequisites for Class Certification .................................... 24

B. Proposed Class Representatives Have Standing ................................................... 27

CONCLUSION ............................................................................................................................. 29



1

Plaintiffs submit this memorandum of law in support of their motion for a preliminary

injunction, leave to file a supplemental pleading, and class certification. Plaintiffs ask this Court

to: (1) preliminarily enjoin Wisconsin’s voter ID law as it applies to eligible Wisconsin voters

who cannot obtain ID with reasonable effort, by requiring Defendants to offer a “reasonable

impediment” affidavit option; (2) grant Plaintiffs’ leave to file a supplemental pleading, see Fed.

R. Civ. P. 15(d), which seeks to add proposed Plaintiffs who continue to lack acceptable ID for

voting; and (3) certify Plaintiffs’ proposed class as described below.

SUMMARY

Plaintiffs are “endeavoring to protect the voting rights of those who encounter high

hurdles” to obtaining acceptable ID—that is, those who cannot obtain ID “with reasonable

effort.” Frank v. Walker, 819 F.3d 384, 386 (7th Cir. 2016) (hereinafter “Frank II”). Specifically,

Plaintiffs represent a proposed class consisting of eligible Wisconsin voters without acceptable

ID for voting and who have one or more of the following barriers to obtaining ID: (1) name

mismatches or other errors in a document needed to obtain ID; (2) need to obtain an underlying

document from an agency other than the DMV in order to obtain ID; and/or (3) one or more

underlying document(s) necessary to obtain ID cannot be found. As the Seventh Circuit recently

confirmed, under the flexible Anderson-Burdick framework, such voters are entitled to relief

from Wisconsin’s voter ID law—specifically, a “safety net” remedy that would allow these

voters to cast a ballot at the polling place by signing an affidavit of identity. Id. at 387.

Pursuant to Frank II’s mandate, Plaintiffs urgently seek a preliminary injunction

including the use of a well-publicized “reasonable impediment” affidavit option that will allow

class members to exercise their fundamental right to vote while this case is pending. Such an

affidavit should allow affected voters to cast a regular ballot at the polls or by absentee. The



2

existing trial evidence, recently obtained evidence, and recent discovery from Defendants all

confirm that Plaintiffs are likely to succeed on their claim that the DMV petition process does

not eliminate the unreasonable barriers to getting ID faced by Plaintiff class members. In

addition, Plaintiffs are likely to succeed in showing that Defendants’ most recent emergency

rule, which was hastily adopted only weeks ago in a desperate attempt to evade liability, will not

meaningfully help these vulnerable voters. The remaining preliminary injunction factors also

favor this relief.

Plaintiffs further seek leave to file a supplemental pleading (Ex. 1)1 to add Plaintiffs and

class representatives Melvin Robertson, Leroy Switlick, and James Green, who currently lack

acceptable ID, cannot obtain ID with reasonable effort, and have recently been disenfranchised

by the voter ID law and/or wish to vote in upcoming elections. See Fed. R. Civ. P. 15(d).

Lastly, this Court should certify Plaintiffs’ proposed class of voters, Fed. R. Civ. P. 23,

whose collective burdens justify the requested relief. Although class certification is not always

necessary to grant preliminary injunctive relief, Plaintiffs seek certification at this stage to ensure

efficient judicial relief. If this Court grants relief without certifying a class and the Seventh

Circuit holds on appeal that Plaintiffs’ requested injunction is improper without a certified class,

a time-consuming remand is likely to delay relief beyond the upcoming elections.

PROCEDURAL BACKGROUND

This case challenges the manner in which Wisconsin’s voter ID law unjustifiably burdens

the voting rights of vulnerable citizens and classes of citizens, by requiring that they present one

of a few limited forms of photo identification in order to vote. In 2014, after a two-week trial,

1 “Ex.” as used in this brief refers to the Exhibits that are attached to the Declaration of Sean J.

Young, which has been filed in conjunction with this brief.



3

this Court invalidated the law, finding that it violated both the Constitution and Section 2 of the

Voting Rights Act. Dkt. #195. This Court’s decision was then reversed by the Seventh Circuit.

See Frank v. Walker, 768 F.3d 744 (7th Cir. 2014) (hereinafter “Frank I”).

While the first appeal was pending, on September 15, 2014, Defendants’ instituted a

“petition process” at the DMV in response to a Wisconsin Supreme Court ruling, Milwaukee

Branch of NAACP v. Walker, 851 N.W.2d 262 (Wis. 2014), see Dkt. #229 ¶¶ 7-8. The petition

process began as an emergency rule and became Wis. Admin. Code § Trans. 102.15(5m). It also

resulted in the creation of new form MV3012, Dkt. #229-1, which replaced the old MV3002

form. The stated purpose of this petition process was to help voters obtain ID without paying a

fee to a governmental agency by allowing the DMV to obtain the relevant birth information for

the voter. But as discussed below, this process is inadequate.

Upon remand from Frank I, this Court addressed Plaintiffs’ remaining claims, dismissing

Plaintiffs’ limited constitutional challenge on behalf of eligible Wisconsin voters without

acceptable ID for voting and who have one or more of the following barriers to obtaining ID: (1)

name mismatches or other errors in a document needed to obtain ID; (2) need to obtain an

underlying document from an agency other than the DMV in order to obtain ID; and/or (3) one

or more underlying document(s) necessary to obtain ID cannot be found. Dkt. #250. The Seventh

Circuit vacated that decision and remanded for this Court’s consideration of that limited claim.

See Frank II, 819 F.3d at 388.2

In remanding this case, the Seventh Circuit emphasized that Frank I “did not decide that

persons unable to get a photo ID with reasonable effort lack a serious grievance,” Frank II, 819

F.3d at 386, and it recognized Plaintiffs’ contention that “high hurdles for some persons eligible

2 The Seventh Circuit also vacated this Court’s dismissal of Plaintiff veterans’ Equal Protection

claim on the merits, with instructions to dismiss that claim as moot. Frank II, 819 F.3d at 388.



4

to vote entitle those particular persons to relief,” id. It added that “Plaintiffs’ approach is

potentially sound if even a single person eligible to vote is unable to get acceptable photo ID

with reasonable effort. The right to vote is personal and is not defeated by the fact that 99% of

other people can secure the necessary credentials easily.” Id. And the court confirmed that “[t]his

is compatible with our opinion and mandate, just as it is compatible with Crawford [v. Marion

Cnty. Election Bd., 553 U.S. 181 (2008)].” Id. at 386-87.

The Seventh Circuit further sanctioned the specific type of relief Plaintiffs now seek: a

“safety net” affidavit that would allow voters who cannot obtain ID with reasonable effort to cast

a ballot. Frank II, 819 F.3d at 387. Otherwise, “[u]nder Wisconsin’s current law, people who do

not have qualifying photo ID . . . cannot vote, even if it is impossible for them to get such an ID.”

Id. Notably, the Seventh Circuit supported the viability of such relief even after the DMV

petition process went into effect, and instructed this Court to “permit the parties to explore how

the state’s system works today before taking up plaintiffs’ remaining substantive contentions.”

Id. at 388. The case was remanded for this Court to resolve this remaining claim, and the

mandate issued on May 4, 2016. Dkt. #263.3

ARGUMENT

I. PLAINTIFFS ARE ENTITLED TO A PRELIMINARY INJUNCTION IN THE

FORM OF A “REASONABLE IMPEDIMENT” AFFIDAVIT

Plaintiffs are entitled to a preliminary injunction in the form of a well-publicized

“reasonable impediment” affidavit that would allow affected voters to cast a regular or absentee

ballot while this case is pending. Specifically, and as detailed infra Part I.B., Plaintiffs request

3 Six days later, on May 10, 2016, Governor Walker approved an emergency rule which revised

the pre-existing petition procedure. See Exs. 23-24. As discussed infra Part I.B.3., this last-

minute attempt to evade liability is unlikely to eliminate the unreasonable burdens faced by

Plaintiffs.



5

that the affidavit option contain two key features: (1) a simple, comprehensible affirmation that

the voter has a “reasonable impediment” to obtaining ID, akin to the affidavits used in North

Carolina and South Carolina, see Exs. 2, 3; and (2) the issuance of a regular ballot at the polling

place. Plaintiffs further request that this Court order Defendants to provide meaningful notice of

this relief through a direct mailing to affected voters.

The preliminary injunction factors fully support this interim remedy. Plaintiffs seeking a

preliminary injunction must demonstrate that: (1) they are likely to succeed on the merits;

(2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance

of equities tips in their favor; and (4) an injunction is in the public interest. D.U. v. Rhoades, ---

F.3d. ----, No. 15-1243, 2016 WL 3126263, at *2 (7th Cir. June 3, 2016) (citing Winter v. Nat.

Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). “These considerations are interdependent: the

greater the likelihood of success on the merits, the less net harm the injunction must prevent in

order for preliminary relief to be warranted.” Judge v. Quinn, 612 F.3d 537, 546 (7th Cir. 2010).

At the same time, “the threshold for demonstrating a likelihood of success on the merits is low,”

and “need only be better than negligible.” D.U., 2016 WL 3126263, at *5.

A. Plaintiffs Are Likely To Succeed On The Merits

Plaintiffs are likely to succeed on the merits of their claim. The guidance and reasoning

of Frank II confirms that voters who are “unable to obtain acceptable ID with reasonable . . .

effort” are entitled to relief under the flexible Anderson-Burdick framework, Frank II, 819 F.3d

at 385-86, and that they are entitled to a “safety net” affidavit that would allow such voters to

cast a ballot, id. at 387. This is true if even “a single person eligible to vote is unable to get

acceptable photo ID with reasonable effort.” Id. at 386. After all, “[t]he right to vote is personal

and is not defeated by the fact that 99% of other people can secure the necessary credentials

easily.” Id. And although Frank I has interpreted Crawford as requiring courts to accept the



6

State’s purported interests in voter ID, Frank I, 768 F.3d at 750, even those purported interests

do not outweigh the burdens faced by those who cannot get ID with reasonable effort, see Frank

II, 819 F.3d at 386-87 (“protect[ing] the voting rights of those who encounter high hurdles . . . is

compatible with our opinion and mandate [in Frank I], just as it is compatible with Crawford.”).4

As discussed below, the trial record confirms that the voters comprising Plaintiffs’

proposed class are “unable to get a photo ID with reasonable effort.” Frank II, 819 F.3d at 386.

And developments subsequent to trial—including the post-trial DMV petition process and an

even newer emergency rule—do nothing to alter that conclusion. To the contrary, the DMV

petition process instituted after trial (known as the “IDPP” in internal documents) does not even

purport to help the first two categories of voters in Plaintiffs’ proposed class (name mismatches,

multiple agencies). And recently obtained discovery and evidence demonstrate that the petition

process has not materially alleviated the unreasonable burdens faced by the third category of

voters whose birth records cannot be found. As one DMV employee candidly summarized, “The

process is very cumbersome.” Ex. 49 at 1; see also id. (“I keep trying to come up with a

smoother process but to be honest I do not have a clue what that would be at this point.”). Even

volunteers who work to help voters register and vote “are often too intimidated” to help voters

through this confusing process. Ex. 17 ¶ 6. Moreover, a new emergency rule—hastily passed

mere days after the mandate issued in this case in a transparent effort to evade liability, see Exs.

23-24, piles bureaucracy on top of bureaucracy and fails to cure the procedure’s core defects.

4 To be clear, Plaintiffs do not suggest that this “reasonable impediment” affidavit cures all of the

legal defects of Wisconsin’s voter ID law. Plaintiffs maintain that the law should be invalidated

in its entirety because it is unconstitutional and violates Section 2 of the Voting Rights Act, as

this Court initially found. Dkt. #195. Plaintiffs preserve their argument that Frank I was wrongly

decided for purposes of appeal.



7

For nearly five years, Defendants have made the fundamental right to vote contingent on

a voter’s ability to navigate a cumbersome DMV bureaucracy designed to regulate driving, with

disastrous results. See, e.g., Ex. 64 at 1 (petition process “has been forced on [DMV] [and was]

not something anybody asked for”); Ex. 36 at 175 (“the fact that this process ultimately relates to

an individual’s ability to vote” does not impact the way that the DMV “adjudications or

decisions [are made] in any way.”). The DMV still has not even figured out how to implement

the last emergency rule approved nearly two years ago. Ex. 31 at 11 (testifying in 2016 that the

petition process is still “changing and evolving as we learn”). The new emergency rule will not

fare any better, especially not when elections are right around the corner.

1. Voters with name mismatches in an underlying document

First, Plaintiffs are likely to succeed in demonstrating that voters with name mismatches

or other errors in an underlying document needed to obtain ID continue to face unreasonable

burdens to getting ID. The trial record showed that such voters must visit agencies other than the

DMV to correct these errors, that those errors often cost money to fix, and that exemptions are

arbitrarily provided to connected voters who contact high-ranking supervisors or elections

officials, or are plaintiffs in high-profile lawsuits. Dkt. #194 at 16-18; Dkt. #195 at 34-37.

The post-trial petition process and its new MV3012 form—like the previous petition

process and the old MV3002 form—do not even purport to help voters with name mismatches in

their underlying documents. As one DMV employee recently confirmed, “[t]he name that they’re

requesting on their ID has to match with Social Security,” and the information provided in the

petition must match “[t]heir name at birth, their mother’s maiden name, their date of birth and

their place of birth.” Ex. 31 at 31. Internal DMV “Case Activity Reports” describing individual

petition adjudications reveal that DMV has denied several petitions on this basis. See, e.g., Exs.

39, 42, 43, 55. Absent the petition process, voters with name mismatches can only rely on the



8

arbitrary, generalized exceptions process that Kristina Boardman described at trial: an ad hoc

system where individual DMV employees can grant exemptions if they “feel comfortable” doing

so. Tr. 1120-21. Indeed, Boardman expressly confirmed this year that the same “feel

comfortable” standard she described at trial is the same “process that’s in place today” for voters

who cannot use the petition process. Ex. 30 at 103-05; see, e.g., Ex. 19 (DMV supervisor

rejection); Ex. 10 ¶ 5 (DMV supervisor acceptance). The post-trial petition process has not

eliminated the unreasonable barriers faced by voters with name mismatches. See, e.g., Ex. 11

(describing voter’s unreasonable efforts in attempting to fix name mismatch problem).

The new emergency rule is no better, for it codifies the same system of unguided

discretion for voters whose underlying document contains misspellings or mismatches: it simply

says that such voters can obtain ID if the person vaguely “provide[s] evidence acceptable to the

administrator that the person has used the name in a manner that qualifies the name as being

legally changed under the common law of Wisconsin.” Ex. 24 at 15. It is utterly unclear how

non-lawyer DMV employees are to apply this vague legal standard. Further, whether ID is issued

is still dependent upon whether the employee subjectively deems the evidence to be

“acceptable,” just like the old discretionary process. See, e.g., Wis. Admin Code § Trans.

102.15(5m) (issuance of ID based on secondary documentation “deemed acceptable to the

administrator”).

2. Voters who must contend with multiple agencies

Second, Plaintiffs are likely to succeed in demonstrating that voters who must obtain an

underlying document from an agency other than the DMV continue to face unreasonable burdens

in obtaining ID. The trial record demonstrated that voters who have to obtain another underlying

document, such as a Social Security card, often face the Catch-22 “gastonette” of having to show

photo ID in order to obtain a Social Security card, Frank II, 819 F.3d at 386; Tr. 1884-86, and



9

post-trial DMV documents confirm that nothing has changed in this regard, see Ex. 52 at 3

(“Often an ID card is needed to pick up a SS Card”). Indeed, both the Social Security

Administration website and Social Security office handouts still suggest that you must have

photo ID to obtain a Social Security card. Ex. 27; Ex. 17 ¶¶ 7-10; see also Ex. 13 ¶ 5 (voter

believed photo ID needed to obtain card). Some may eventually learn about the narrow and

complicated school and medical records exception to obtaining a Social Security Card, see Ex.

17 ¶¶ 11-12 (educated attorney describing difficulties in figuring out this exception given

conflicting information), but they must then sacrifice more time and make additional trips to hunt

down these secondary documents, see, e.g., Tr. 856-59, Ex. 10 ¶¶ 6-8, which themselves can

require showing photo ID, Tr. 856-57, Dkt. #195 at 28-29. This is especially unreasonable with

the existing transportation barriers that many of these voters already have to overcome. Dkt.

#194 at 20-21, #195 at 30-31; see also, e.g., Ex. 12, 14.

As with voters with name mismatches, the post-trial petition process does not even

purport to help these voters who must engage with multiple agencies in order to obtain ID for

voting purposes. Ex. 31 at 53-54 (applicants without identity or residency documents turned

away). The rules do not eliminate the “proof of identity” requirement, Wis. Admin. Code §

Trans. 102.15(4), which is most often fulfilled by obtaining a Social Security Card, Dkt. #195 at

28. Nor does the latest emergency rule do anything for these voters; though the rule makes

amendments to provisions for voters who lack a social security number, see Ex. 24 at 16, it

leaves untouched subsection (4), which governs proof of identity.

Furthermore, neither the petition process nor the emergency rule helps voters stuck on

Election Day without ID and without birth certificates, who must visit multiple agencies—i.e., at

least the vital records office and the DMV (and pay fees, Dkt. #195 at 31-32)—and return to



10

their local election offices by the Friday after Election Day.5 These voters cannot use the petition

process at all, because they will not receive a document valid for voting in time to make their

provisional ballot count. Although the new emergency rule provides for the issuance of

temporary identification card receipts for voting purposes, see Ex. 24 at 20-21, unlike the

temporary receipts that are issued immediately to ID applicants who have all their underlying

documents, the receipts issued to voters who use the petition process are not even mailed until

the sixth working day after the application, when the three-day deadline has long passed. Ex. 24

at 20. And the petition process itself is seldom resolved in three days. As DMV officials have

confirmed, the process usually takes seven days or more, even when the birth records are in

Wisconsin. Ex. 36 at 50-54, Ex. 30 at 38. Voters have already been disenfranchised in this year’s

elections because of this unreasonable barrier. See Ex. 13 (could not visit Illinois Vital Records,

Illinois DMV, and Social Security office in time to obtain ID); Ex. 16 (could not visit Iowa

courts to correct name mismatches in three days); Ex. 18 (could not get birth certificate from

California Vital Records in three days); Ex. 21 (same); Ex. 15 (could not get birth certificate

Utah Vital Records in three days); see also generally Ex. 8 ¶¶ 7-8; Ex. 9 ¶¶ 4-8, 11; Dkt. #195 at

33.6

5 Voters may be even more likely to show up at the polls on Election Day without ID in light of

the non-existent outreach by DMV and virtually non-existent outreach and public education by

GAB on the photo ID law. See Ex. 36 at 136; Ex. 34 at 213-14.

6 One voter, Kari Venteris, did manage to visit multiple agencies to obtain valid ID within three

days, but the efforts she had to go through to do this were patently unreasonable. See Ex. 22

(multiple hours-long interstate trips costing approximately $50, a particularly burdensome

experience given that she is also a person with a mobility impairment). An affidavit would have

spared Venteris from having to jump through these absurd hoops just to exercise her fundamental

right to vote.



11

3. Voters with nonexistent or unavailable birth records

Lastly, Plaintiffs are likely to succeed in showing that voters whose birth records cannot

be found continue to face unreasonable burdens. The trial record revealed that these voters could

only obtain ID if they knew about DMV’s secret MV3002 procedure in place at the time of trial.

But even if they knew about the form, such voters had to endure an indefinite wait for the state of

birth to determine that the birth record does not exist or could not be found; gather alternative

documentation of U.S. birth, and make a second trip to the DMV in the hopes that DMV

bureaucrats would exercise their unguided discretion to deem such alternative documentation

“strong evidence” of U.S. birth. Dkt. #194 at 18-19, Dkt. #195 at 32 n.17. Whether a voter was

able to exercise his or her fundamental right to vote was arbitrarily dependent upon which DMV

center the voter visited and which supervisor was on duty.

The new petition process enacted post-trial nominally covers these voters, but recently

obtained discovery confirms that the process continues to result in substantial, and often

insurmountable, barriers for these voters.

The petition process, as it has haphazardly developed since it was first instituted in

September 2014,7 consists essentially of three steps after the voter submits an MV3012 petition.

Each of these steps impose unreasonable barriers to obtaining ID for people whose birth records

7 The petition process itself has presented somewhat of a moving target. For example, the

petition process as described by an internal DMV document dated September 10, 2014, Exs. 50-

51, differs from the petition process as of March 22, 2016, Ex. 62, even though the same

regulation, Wis. Admin. Code § Trans. 102.15(5m), was in existence that entire time. DMV

employees have essentially admitted that, nearly two years into the process, they continue to

make it up as they go along. See Ex. 31 at 11 (testifying in 2016 deposition, “I guess we created .

. . our internal procedures kind of as we went. We’ve created a training procedure document that

we use now. It’s changing and evolving as we learn.”). Nonetheless, the fundamental defects of

the process have not changed.



12

cannot be found, and for many other voters who must rely on—but do not possess—a birth

certificate to prove their U.S. citizenship.

First, the information in the petition is sent to the Wisconsin Department of Health

Services (“DHS”), and if the birth information cannot be verified immediately with the relevant

vital records agency, agents from the DMV Compliance, Audit, and Fraud Unit (“CAFU”)—a

unit whose primary purpose is to investigate internal and external fraud, Ex. 37 at 9-11—are

responsible for following up, Ex. 30 at 18-19. And the need to follow-up is common,8 because

voters born out of state are completely at the mercy of their birth state’s vital records agencies,

which are not subject to DHS’s or DMV’s jurisdiction and are free to ignore them or take

unreasonable amounts of time to respond to their inquiries. This has resulted in an arbitrary

process that Boardman has herself described as “cumbersome.” Ex. 30 at 97. As she put it

herself, “we do not have control over other states and how long they may take to respond to us.”

Id. at 66-67.

For example, South Carolina has “privatized their vital records, and it’s nearly impossible

to get anything out of South Carolina at this point.” Ex. 37 at 21. New York routinely takes “two

to three months” to respond. Ex. 29 at 79. Tennessee and Mississippi are “particularly hard to

work with.” Ex. 31 at 37-38. “Cook [C]ounty[, Illinois] has offered very little help when [DMV

has] reached out to them,” and it is rife with “careless record handling,” leading DMV officials

to express gratitude that they weren’t born there themselves. Ex. 53; see also Ex. 36 at 83. And

DMV has had “difficulty finding records from the south . . . during [the] Jim Crow era”

generally. Ex. 31 at 94. When asked whether there was “any way to expedite the verification” for

8 Susan Schilz, the CAFU supervisor, “didn’t think [they] would get many [petitions] in CAFU”

at first, assuming that DHS would be able to resolve almost all the petitions at the first step, but

she was quickly disabused of that notion. Ex. 37 at 28-29.



13

a voter born in Michigan, DMV employees did not “know of anything [they could] do to speed

this up.” Ex. 68; see also Ex. 37 at 22-25 (South Carolina, Mississippi, Cook County “put us

[DMV staff] on hold, . . . kind of put us in a phone circle and then end up hanging up on us with

no care for what we’re trying to do,” even after DMV informs them that they are “officials from

another state . . . trying to get confirmation.”); Ex. 29 at 53 (Cook County); Ex. 31 at 39 (South

Carolina). As Boardman summarized, “There are some states where it takes additional time to

get an answer back. . . . All states register their vital records differently. Some are available

electronically, some aren’t. Some are at the county or parish level, some are at the state level. So

it really just depends on how they’re organized in that state of birth.” Ex. 30 at 16.

Second, if the birth records cannot be found, the voter must provide secondary

documentation, such as a baptismal certificate or early school records, as in the pre-petition days.

Wis. Admin. Code § Trans. 102.15(5m)3. Voters like Melvin Robertson who have no secondary

documents will not get ID, period, see Ex. 37 at 66-67, as demonstrated by several denied

petitions from such voters, see, e.g., Exs. 44, 45, 56, 59, 60, 61.

While the petition process eventually started requiring CAFU agents to attempt to help

some applicants obtain these secondary documents, Ex. 30 at 26, the process could be “very

difficult,” Ex. 37 at 65, and take more than six months in some cases, id. at 46; see also Ex. 69 at

1 (“[e]xtensive research is performed by CAFU” when birth information is not found (emphasis

added)). Indeed, the process was sometimes impossible. One CAFU agent explained that

locating “school records” was challenging because “[a] lot of old schools no longer exist . . . .

[N]o one has the early records.” Ex. 31 at 38. She also testified to having problems finding

“[s]chools, hospitals, [and] church records” “in the Jim Crow south generally,” id. at 94-95, and

that “a lot of times the school won’t be in existence anymore and no one knows where the



14

records were kept or if they were kept when they closed. Or sometimes they’ll say that all of the

documents were burned in a fire or lost in a flood,” id. at 95. The CAFU supervisor similarly

noted, “We have also seen instances where schools have burned or hospitals have burned or been

torn down and the records are lost through that way as well. And we have had a few cases with

midwives where they are required to file a record with the municipality and where it appears they

haven’t.” Ex. 37 at 65. Obtaining follow-up information was also difficult since “many

petitioners do not have phones or emails.” Id. at 34-35. And CAFU does not always help. See Ex.

71 at 2 (requiring applicants to return to DMV with secondary documents as late as 2015).

Third, whatever secondary documentation is mustered must then be presented for

acceptance or rejection based entirely on the unfettered discretion of CAFU agents—there is

simply no guarantee that a voter who has endured the above gauntlet will be able to vote. See

Wis. Admin. Code §§ Trans. 102.15(5m)(b)3.-4.; Ex. 36 at 39-40. And at the end of this

bureaucratic labyrinth is the “Triad,” or three senior DMV officials who have the final say as to

who can and cannot get ID, injecting yet another layer of discretion to the already-cumbersome

process. Ex. 38 (“If we get to the end without sufficient data[,] the triad of Patrick, Kristina &

Jim will make the final decision”); Ex. 30 at 21-23; Ex. 37 at 74-75 (“when [the CAFU agents]

compiling information feel like [the petitioners] have enough and when it’s reviewed by senior

managers, they may think it isn’t quite enough and it may be sent back to us.”); Ex. 51 at 5

(“management has the ability, based upon the totality of circumstances, to allow for

exceptions”); Ex. 30 at 73-74 (issuance is on a “case by case basis and using discretion based on

the documents that are presented”); Ex. 62 at 8 (Miller has the “final say”); Ex. 63 at 1 (“DMV

will have discretion when deciding whether an applicant has met the burden of proof”). “The

cherished right of people in a country like ours to vote cannot be obliterated by the use of laws



15

. . . which leave the voting fate of a citizen to the passing whim or impulse of an individual

registrar.” Louisiana v. United States, 380 U.S. 145, 153 (1965).

Layered on top of all of the above difficulties are yet additional problems that infect the

entire process. For starters, DMV has not done any outreach about the petition process, Ex. 36 at

136,9 and it implored the GAB to run a year-long media campaign “ASAP” as early as May

2015, Ex. 70, which has yet to happen due to lack of funding thus far from the legislature. Ex. 34

at 213-14. Furthermore, the petition process has suffered from an astounding 27% error rate by

DMV employees, Ex. 47; Ex. 30 at 99-100, which can cause “delays,” force voters to make

additional trips to the DMV, and provide additional documentation, Ex. 48 at 1. The discovery is

rife with such examples. See, e.g., Exs. 65, 68, 72, 73. And even “when all goes correctly,” the

process is already very “costly.” Ex. 48. The DMV is ill-equipped to handle this procedure,

because it already uses “a lot of resources that we [the DMV] don’t have a lot of,” requiring

DMV to “absorb[] this time . . . without any added resources.” Ex. 37 at 84. As one DMV

employee aptly summarized almost one year into the procedure, “We seem to really be

struggling with a process that should not be that difficult.” Ex. 73.

Demand for the petition has furthermore started to rise during this election year, but, as

DMV officials have conceded in their depositions, no additional funds, staff, or hours have been

allocated to satisfy this demand, see Ex. 37 at 20, 85; Ex. 29 at 100-101; Ex. 30 at 61—a stark

contrast to the rosy picture DMV has tried to paint to anxious legislators, see Ex. 66 at 2 (“DMV

is well positioned to deal with any potential increases in customer demand”). Even with all of

these problems, there has actually been pressure to reduce the amount of DMV training on the

9 Even DMV employees continue to be unaware of the procedure. See, e.g., Ex. 57 (Plaintiff

Ruthelle Frank’s daughter not told about petition process); Ex. 40 (caller told by DMV three

times to get birth certificate themselves); Ex. 20 ¶ 6 (not told by DMV about petition process);

Ex. 22 ¶¶ 12-13 (same).



16

petition procedure since it is unrelated to DMV’s core function, Ex. 54, when training is already

“challenging,” Ex. 37 at 28. Being a plaintiff in litigation, or complaining to a state official,

apparently continues to be the primary way to move one’s petition along. See Ex. 58 (Governor’s

office monitoring ID progress of “Voter ID Plaintiffs”); Ex. 57 (discussing follow-up for

Ruthelle Frank, emphasizing her role as “primary plaintiff in the Voter ID lawsuit”); Ex. 46

(following up with legislator); Ex. 67 (same); Ex. 74 (same). Average voters with these barriers

are out of luck.

The new emergency rule does not alleviate these problems, but rather devises an

extraordinarily elaborate system that injects even more layers of bureaucracy, confusion, and

unguided discretion into an already-unruly process. See Ex. 24 at 18-20; see Ross v. Blake, ---

S. Ct. ----, No. 15-339, 2016 WL 3128839, at *8 (June 6, 2016) (“an administrative scheme

might be so opaque that it becomes, practically speaking, incapable of use.”). What remains

fundamentally unchanged is the fact that if the birth record cannot be found, the voter is still not

guaranteed an ID. They must still rest on the hope that any secondary documentation (which can

be difficult or even impossible to find) will be deemed acceptable by the DMV administrator in

accordance with her subjective discretion. See Ex. 24 at 19 (petition granted when administrator

“concludes, on the basis of secondary documentation or other corroborating information, that it

is more likely than not that the name, date of birth or U.S. citizenship provided by the applicant

is correct.”).

Even more shocking, this emergency rule now exposes these vulnerable voters to

criminal liability. See Ex. 24 at 18-19 (if the DMV administrator “determines that an applicant

has knowingly made a false statement or knowingly concealed a material fact . . . in an

application, petition, or additional information [provided to the DMV],” they will “refer the



17

suspected fraud to law enforcement.”); cf. South Carolina v. United States, 898 F. Supp. 2d 30,

40 (D.D.C. 2012) (attempts to help voters without ID “must not become a trap for the unwary, or

a tool for intimidation or disenfranchisement of qualified voters”). While the emergency rule

appears to provide for the issuance of temporary receipts for voting to some of these voters, Ex.

24 at 20, these receipts: (1) may not be issued until after six days, when it is too late to cure the

provisional ballot; (2) ultimately expire, Wis. Stat. § 343.50(1)(c); and (3) do not free the voter

from the unreasonable burdens of locating hard-to-find secondary documentation and being

subject to unguided DMV discretion—either of which can result in the petition’s denial, at which

point “no further identification card receipts will be issued,” including after the receipt expires,

Ex. 24 at 18 (emphasis added).

Enough is enough. Defendants’ five-year-long experiment with the DMV demonstrates

that making the DMV the gatekeeper of the right to vote is fundamentally inconsistent with the

Constitution. For the above reasons, Plaintiffs are likely to succeed on the merits of their claim.

B. The Remaining Preliminary Injunction Factors Favor Allowing Voters to

Cast a Regular Ballot With A “Reasonable Impediment” Affidavit

The remaining preliminary injunction factors—the need to prevent irreparable harm, the

balance of equities, and the public interest—also support Plaintiffs’ requested relief, a

“reasonable impediment” affidavit option that would allow voters to cast a regular or absentee

ballot while this case is pending. The affidavit option should also be well-publicized to voters

and the public, and ordered as soon as practicable to ensure that it can be effectively

implemented. Absent this relief, Plaintiff class members are likely to suffer irreparable harm by

being disenfranchised. See Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) (“A

restriction on the fundamental right to vote . . . constitutes irreparable injury.”). The balance of

equities also tips in Plaintiffs’ favor: “[w]hile states have a strong interest in their ability to



18

enforce state election law requirements, the public has a strong interest in exercising the

fundamental political right to vote.” Id. (citations and quotation marks omitted). And the public

interest “favors permitting as many qualified voters to vote as possible.” Id. at 437. Granting

Plaintiffs’ requested relief is consistent with this Court’s broad discretion. See Brown v. Plata,

563 U.S. 493, 538 (2011) (“[T]he scope of a district court’s equitable powers . . . is broad, for

breadth and flexibility are inherent in equitable remedies.” (citation omitted; alteration in

original)); PepsiCo, Inc. v. Redmond, 54 F.3d 1262, 1272 (7th Cir. 1995) (“[a] district court

ordinarily has wide latitude in fashioning injunctive relief”); Russian Media Grp., LLC v. Cable

Am., Inc., 598 F.3d 302, 307 (7th Cir. 2010) (An “injunction must . . . be broad enough to be

effective, and the appropriate scope of the injunction is left to the district court’s sound

discretion.”).

1. The affidavit should be available to voters who face a “reasonable

impediment” to obtaining acceptable ID

First, the affidavit option should allow voters without ID to cast a ballot if they affirm

that they face a “reasonable impediment” to obtaining acceptable ID, akin to the “reasonable

impediment” affidavits used in North Carolina and South Carolina. See Exs. 2, 3. Use of a

“reasonable impediment” affidavit is consistent with the Seventh Circuit’s recent description of

those voters potentially entitled to a remedy: voters “who are unable get a photo ID with

reasonable effort.” Frank II, 819 F.3d at 386; see Zamecnik v. Indian Prairie Sch. Dist., 636 F.3d

874, 879 (7th Cir. 2011) (“When the court believes the underlying right to be highly significant,

it may write injunctive relief as broad as the right itself.” (citation omitted)).

However, “the process for filling out the form must not become a trap for the unwary, or

a tool for intimidation or disenfranchisement of qualified voters,” South Carolina, 898 F. Supp.

2d at 40, especially given the low educational and socioeconomic status of many voters without



19

ID, Dkt. #195 at 25-26. It is thus critical that the affidavit “use clear, simple language,” Ex. 9

¶ 15, that will present voters with simple facts that they can readily understand, so that they can

easily determine whether the facts apply to them. Accordingly, as other courts have explained,

“the form at a minimum [should] have separate boxes that a voter may check for . . . ‘lack of

transportation’; ‘disability or illness’; ‘lack of birth certificate’; ‘work schedule’; ‘family

responsibilities’; and ‘other reasonable impediment.’ The form will require a further brief written

explanation from the voter only if he or she checks the ‘other reasonable impediment’ box on the

form.” South Carolina, 898 F. Supp. 2d at 41; see also N.C. State Conf. of NAACP v.

McCrory, --- F. Supp. 3d ----, 2016 WL 1650774, at *120 (M.D.N.C. Apr. 25, 2016) (similar).

Courts have also emphasized that “[a]ny reason that the voter subjectively deems reasonable

[should] suffice, so long as it is not false.” South Carolina, 898 F. Supp. 2d at 36-37; see also

N.C. NAACP, 2016 WL 1650774, at *35. Wisconsin election officials confirm that the check box

list uses “simple language and could be completed quickly and efficiently by poll workers.” Ex.

8 ¶ 15. And the burden on the State is minimal, since election officials also confirm that such an

affidavit could be readily drafted and implemented, see Ex. 8 ¶ 16; Ex. 9 ¶¶ 16-17, especially if

there is sufficient lead time for preparation and training.

Although this Court could theoretically order that the affidavit have more detailed boxes

with lengthier descriptions to reference the categories comprising Plaintiffs’ class, the equities do

not favor this alternative. Unlike the “reasonable impediment” affidavit proposed above, such a

specific alternative has not been implemented or attempted in other situations. It is also more

likely to confuse voters especially in light of the limited education of many voters without ID.

Cf., e.g., Ross, 2016 WL 3128839 at *8 (“When rules are ‘so confusing that . . . no reasonable

[person] can use them,’ then ‘they’re no longer available’” (citation omitted)). Moreover, by



20

unnecessarily restricting the pool of affected eligible voters who execute the affidavit, such an

alternative will not adequately address the harms imposed on voters who “are unable to get a

photo ID with reasonable effort,” as recently framed by the Seventh Circuit. Frank II, 819 F.3d

at 386. After all, an “injunction must . . . be broad enough to be effective,” Russian Media Grp.,

598 F.3d at 307, and the public interest “favors permitting as many qualified voters to vote as

possible,” Obama for Am., 697 F.3d at 437.

2. The affidavit should allow voters to cast a regular ballot at the polling place,

not a provisional ballot

Second, the preliminary injunction factors point in favor of providing affidavit voters a

regular ballot that they can cast at the polling place, not a time consuming, confusing provisional

one. In Wisconsin, a provisional ballot is only counted contingent upon a voter later “satisf[ying]

relevant voting requirements,” Wis. Stat. § 7.15(15), such as a voter who initially fails to satisfy

certain registration requirements or fails to produce acceptable ID. See Ex. 26 (provisional voting

information sheet). Under Plaintiffs’ requested remedy, however, a voter who signs a

“reasonable impediment” affidavit is no longer required to perform any further action, and

should thus have their ballot counted. Since the ballot must be counted anyway, there is no need

to hold such ballots in suspension.

The balance of the equities for both voters and elections officials favors this approach, as

Wisconsin election officials confirm that issuing regular ballots to voters who sign the affidavit

is practicable, and is in fact vastly preferable to the provisional ballot process, Ex. 8 ¶ 12, Ex. 9

¶ 13, since “[t]he provisional ballot procedure is complex, inefficient and time consuming for

poll workers,” Ex. 8 ¶ 11; see also Ex. 9 ¶ 12 (“the poll worker must complete a 17-step process

when issuing a provisional ballot”); Ex. 25 at 5-6. Provisional ballots “are often difficult to grasp

for voters with literacy or comprehension challenges.” Ex. 8 ¶ 11. They can also threaten ballot



21

secrecy when they are counted out loud at the Board of Canvassers meeting, which is open to the

public. Ex. 9 ¶ 10. The Voter ID statutes of Idaho, Louisiana, Michigan, and South Dakota all

allow voters without ID to vote by affidavit without needlessly subjecting such voters to a

cumbersome provisional ballot process. Idaho Code § 34-1114; La. Rev. Stat. § 18:562; Mich.

Comp. Laws § 168.523; S.D. Codified Laws § 12-18-6.2.10

Similarly, absentee voters should also be provided the option to submit an executed

affidavit in lieu of providing a photocopy of acceptable photo ID.

3. The affidavit option must be widely and understandably publicized by the

State

The preliminary injunction factors also warrant providing meaningful notice to voters

about the affidavit option. Thus, Plaintiffs request at a minimum that Defendants be required to

mail individualized notice of the voter ID law and affidavit option to any registered voter who

does not appear as having accepted photo ID in the DMV database, and that the affidavit option

be included in any existing publicity materials related to Voter ID. See, e.g., Lee v. Va. State Bd.

of Elections, --- F.Supp.3d ----, No. 3:15CV357, 2016 WL 2946181, at *10 (E.D.Va. May 19,

2016) (Virginia sent “86,000 postcards to persons on the active voter list who DMV records

reflected possessed no DMV-issued ID and would likely need a photo ID to vote under the new

law”); N.C. NAACP, 2016 WL 1650774, at *20 (North Carolina sent individual notices to

hundreds of thousands of voters not in DMV database).

10

This Court should not subject voters without ID—already a disadvantaged subset of the

population—to any remedy that requires them to make additional trips to a clerk or other

location in order to have their ballots counted. See Crawford, 553 U.S. at 217 (Souter, J.,

dissenting). Even the Crawford plurality opinion recognized that such an extra trip may impose a

“burden [that] may not be justified as to a few voters,” Crawford, 553 U.S. at 199, the very

voters at issue here. This is particularly true in light of the well-known transportation barriers of

many such voters. See, e.g., Dkt. #194 at 21-22, Dkt. #195 at 30-31; Ex. 12 (transportation issues

prevented voter from getting ID); Ex. 14 (same).



22

Including reasonable notice will help ensure that voters without ID are not irreparably

harmed simply because they do not know that an affidavit option exists. Many cases recognize

the common sense principle that relief is not as effective if people do not know about it. See, e.g.,

Quern v. Jordan, 440 U.S. 332, 346-49 (1979) (providing notice of relief is “ancillary” to relief

itself); Youakim v. McDonald, 71 F.3d 1274, 1292-93 (7th Cir. 1995) (reasonable for district

court to require notice as part of remedy); Holbrook v. Pitt, 643 F.2d 1261, 1280 (7th Cir. 1981)

(tenants need notice of right to receive retroactive payments). Notice is particularly important

here, given the lack of meaningful outreach or public education since 2012, and the failure, to

date, to allocate the amount of funds elections officials believed necessary for an effective

outreach campaign. Ex. 32 at 144-45, 156-57; Ex. 34 at 213-14; Ex. 35 at 90; see also Ex. 32 at

49 (clerks have already expressed “concern about whether voters are sufficiently aware of the

law”); Ex. 8 ¶ 10 (similar).

For these reasons, this Court should grant Plaintiffs’ motion for a preliminary injunction

as soon as practicable.

II. THE COURT SHOULD GRANT PLAINTIFFS’ LEAVE TO FILE A

SUPPLEMENTAL PLEADING, WHICH INCLUDES NEW PLAINTIFFS

RECENTLY HARMED BY THE LAW

Plaintiffs also move, pursuant to Fed. R. Civ. P. 15(d), for leave to file a supplemental

pleading attached as Exhibit 1, which includes new Plaintiffs who have recently been harmed by

Act 23: Melvin Robertson, Leroy Switlick, and James Green. See Exs. 5-7. Rule 15(d) provides

that the Court “may, on just terms, permit a party to serve a supplemental pleading setting out

any transaction, occurrence, or event that happened after the date of the pleading to be

supplemented.” The standards governing Rule 15(d) motions are subject to the same standards as

Rule 15(a) motions to amend the complaint, which generally examine whether there is prejudice



23

to Defendants. See Glatt v. Chi. Park Dist., 87 F.3d 190, 194 (7th Cir. 1996). Leave to file

supplemental pleadings should be granted when the pleadings bear “some relationship” to the

existing pleadings, because “forc[ing] plaintiffs to file new lawsuits to litigate what are

essentially continuations of their original suits would waste judicial resources.” Habitat Educ.

Ctr., Inc. v. Kimbell, 250 F.R.D. 397, 402 (E.D. Wis. 2008) (citation omitted). Supplemental

pleadings can also add new Plaintiffs if they were affected by recent events. See Griffin v. Cty.

Sch. Bd. of Prince Edward Cty., 377 U.S. 218, 226-27 (1964).

The Court should grant Plaintiffs’ motion for leave to file a supplemental pleading,

which raises allegations about events that have transpired since Plaintiffs’ First Amended

Complaint filed in March 2012—namely, the three new Plaintiffs’ continued lack of acceptable

ID for voting. Their claims are substantially identical to the existing claims, and do not require

Defendants to produce any additional documents or witnesses that are not already required by the

existing claims. Plaintiffs file this motion because, inter alia, Defendants are likely to persist in

their erroneous argument, see infra Part III., that longstanding proposed class representatives

Ruthelle Frank, Shirley Brown, and DeWayne Smith lack standing solely because some of them

obtained ID well after Plaintiffs diligently filed their original class certification motion four years

ago. But Defendants’ argument is inapplicable to Melvin Robertson, Leroy Switlick, and James

Green, who do not currently have acceptable ID and are suitable class members because they

face the same types of burdens typical to the class.

III. THE COURT SHOULD GRANT PLAINTIFFS’ MOTION FOR CLASS

CERTIFICATION

This Court should also certify Plaintiffs’ proposed class pursuant to Fed. R. Civ. P.

23(b)(1) and (b)(2), which consists of eligible Wisconsin voters without acceptable ID for voting

and who have one or more of the following barriers to obtaining ID: (1) name mismatches or



24

other errors in a document needed to obtain ID; (2) need to obtain an underlying document from

an agency other than the DMV in order to obtain ID; and/or (3) one or more underlying

document(s) necessary to obtain ID cannot be found.11

This Court should further find that

Plaintiffs Ruthelle Frank, Shirley Brown, DeWayne Smith, and new Plaintiffs Melvin Robertson,

Leroy Switlick, and James Green are all appropriate representatives for this class. Although

“courts have the power to order [preliminary] injunctive relief covering potential class members

prior to class certification,” Lee v. Orr, No. 13-cv-8719, 2013 WL 6490577, at *2 (N.D. Ill. Dec.

10, 2013) (citation omitted), certification is appropriate at this stage. If this Court grants

Plaintiffs’ motion for a preliminary injunction without certifying a class and there is another

appeal, and if the Seventh Circuit then holds that Plaintiffs’ requested injunction is improper

without a certified class, certification now would potentially avoid another time-consuming

remand—a remand that may come too late for any upcoming elections. Cf. Fed. R. Civ. P. 62.1.

A. Plaintiffs Satisfy the Prerequisites for Class Certification

All the prerequisites for class certification are satisfied here.

Prerequisites for (b)(2) and (b)(1) classes. This Court should certify Plaintiffs’

proposed class pursuant to both Rule 23(b)(2) and (b)(1). Defendants have “acted . . . on grounds

that apply generally to the class,” Fed. R. Civ. P. 23(b)(2), because every class member must

obtain acceptable ID in order to vote. Furthermore, absent class-wide treatment, there is a risk

that Defendants will be subjected to incompatible injunctions. See Fed. R. Civ. P. 23(b)(1).

Numerosity. The class is “so numerous that joinder of all members is impracticable.”

Fed. R. Civ. R. 23(a)(1). DMV officials testified about routinely encountering voters with name

11

Plaintiffs reserve the right to seek modification of any proposed or certified class based on the

development of evidence. See Fonder v. Sheriff of Kankakee Cty., --- F.3d. ----, No. 15-2905,

2016 WL 3027698, at *2 (7th Cir. May 26, 2016).



25

mismatches or other errors. Dkt. #195 at 34 n.18, 36-37 n.20; see also Tr. 1104, 1865, 1884. As

for voters who must contend with multiple agencies to obtain ID, 1,640 eligible voters in

Milwaukee County alone lack both an ID and a Social Security card needed to obtain ID.

Dkt. #195 at 28. And as recent DMV testimony have confirmed, there are many voters for whom

birth documents do not exist, including for older African-American voters born in the Jim Crow

South. See Dkt. #195 at 32 n.17; Ex. 37 at 64-65 (“a lot that we’ve seen” were instances where

birth records were never created); Ex. 31 at 94-96 (difficulty finding hospital records from Jim

Crow South); Ex. 30 at 24-25 (“several” situations where petitioners could not locate birth

records because they were adopted or used a different name their entire life); Ex. 5 ¶¶ 8-11; see

also Ex. 75.

Commonality. Commonality is satisfied because all class members raise the same legal

question of whether they can obtain acceptable ID with reasonable effort, and whether the state’s

interests justify those burdens. They are also all subject to the same DMV rules. See, e.g.,

McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482, 490 (7th Cir. 2012).

Typicality and Adequacy. The claims of proposed class representatives Ruthelle Frank,

Shirley Brown, DeWayne Smith, Melvin Robertson, Leroy Switlick, and James Green are all

“typical of the claims . . . of the class.” Fed. R. Civ. P. 23(a)(3). All of them fall into one or more

of the categories comprising the class, and thus, as discussed supra Part I.A., all of them have

faced, or are facing, unreasonable burdens extending well beyond “a [single] trip to the [DMV],

gathering the required documents [they already have,12

] and posing for a photograph.” Crawford,

12

Crawford’s use of the phrase “gathering the required documents” refers to the gathering of

documents that the voter already has. The plurality opinion stated that this burden was

insignificant for “most voters who need them,” Crawford, 553 U.S. at 198, and the record in that

case failed to produce even one voter for whom obtaining a birth certificate was difficult, id. at

200-01. Similarly, Frank I’s finding that “photo ID is available to people willing to scrounge up



26

553 U.S. at 198. For that reason, they will also “fairly and adequately protect the interests of the

class.” Fed. R. Civ. P. 23(a)(4); see Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 626 n.20

(1997) (adequacy, typicality, and commonality inquiries tend to “merge”). Indeed, Frank,

Brown, and Smith have already ably discharged their duties as class representatives by providing

trial testimony about the unreasonable burdens that represent the type of unreasonable burdens

that class members continue to face, and nothing further is required of them. And Robertson and

Switlick also have already testified and been subject to cross-examination by Defendants:

Robertson at trial in this case, see Tr. 418-20; see also Tr. 401-02; and Switlick at trial in a case

also challenging the voter ID law, see Ex. 6. There are furthermore no antagonistic interests

between any of these representatives and the absent class members, and the trial demonstrated

that the class members’ interests are adequately protected by Plaintiffs’ counsel. See Retired Chi.

Police Ass’n v. City of Chi., 7 F.3d 584, 598 (7th Cir. 1993).

Should the Court believe it necessary to divide the class into three subclasses, Plaintiffs

submit that: (1) Frank continues to be an adequate representative for the subclass of voters with

name mismatches, since she testified about facing the daunting task of correcting her birth

certificate errors herself. See Dkt. #195 at 34 n.19. (2) Smith continues to be an adequate

representative for the subclass of voters who must visit multiple agencies to obtain ID, since he

testified about the unreasonable efforts he had to undertake to obtain a Social Security card.

Dkt. #195 at 29, 31. New Plaintiffs Switlick and Green are also suitable representatives because

they currently lack acceptable proof of identity and thus face similar obstacles. Exs. 6, 7.

(3) Brown continues to be an adequate representative for the subclass of voters whose birth

records cannot be found or do not exist, since she and her son testified about their failed efforts

a birth certificate,” 768 F.3d at 748, was in reference to Wisconsin voters generally, not the

subgroup for whom the burdens are particularly heavy, see generally Frank II, 819 F.3d 384.



27

to obtain her birth certificate. Tr. 210-16.13

New Plaintiff Robertson is also an adequate

representative because he testified about not having a birth certificate in his name on file,

Dkt. #195 at 32 n.17, and he still lacks acceptable ID today, see Ex. 5 ¶ 6.

B. Proposed Class Representatives Have Standing

Defendants are likely to argue that the proposed class representatives lack standing

because some of them (Brown and Smith) later obtained ID. This argument should be rejected

for multiple independent reasons.

First, all the proposed class representatives have standing because, as this Court has

previously observed, they are “challeng[ing] the provision requiring a voter to present a photo ID

at the polls. It is the need to present such an ID that injures a voter and confers standing to sue.”

Dkt. #195 at 44 (citing Common Cause / Georgia v. Billups, 554 F.3d 1340, 1351-52 (11th Cir.

2009)). Thus, “even those members of the plaintiffs who currently possess an acceptable form of

ID have standing to sue.” Dkt. #195 at 44. Furthermore, IDs can expire. Id. at 44 n.24.

Second, it is “well-established” that the claims of a plaintiff class do not become moot

just because the claims of a named plaintiff become moot. Richards v. NLRB, 702 F.3d 1010,

1017 (7th Cir. 2012). Where, as here, named Plaintiffs Brown and Smith moved promptly for

class certification prior to their individual claims becoming moot, see Dkt. #63; Tr. 207-09, 860

(no ID in early 2012), the claims of the absent class members can remain live, even if the named

plaintiff’s claim becomes moot while the class certification motion is pending. See, e.g.,

McMahon v. LVNV Funding, 744 F.3d 1010, 1019 (7th Cir. 2014); Damasco v. Clearwire Corp.,

13

Defendants are likely to note that Brown obtained ID after trial. But given that class members

without birth records are subject to an arbitrary decision-making process that is itself

unconstitutional, the mere fact that luck (or perhaps her participation in a high-profile lawsuit,

see, e.g., Exs. 57, 58) happened to favor her on a particular day does not mean that her

experience is not typical of the standardless discretion that her fellow class members face.



28

662 F.3d 891, 897 (7th Cir. 2011), overruled on other grounds by Chapman v. First Index, Inc.,

796 F.3d 783 (7th Cir. 2015); Phillips v. Ford Motor Co., 435 F.3d 785, 787 (7th Cir. 2006);

Primax Recoveries, Inc. v. Sevilla, 324 F.3d 544, 546-47 (7th Cir. 2003). This is especially the

case here, where Plaintiffs’ class certification motion has remained pending for more than four

years due to circumstances unique to this case and outside of Plaintiffs’ control. See, e.g.,

Dkt. ##107, 113, 123, 195, 250. To hold otherwise would leave the mootness of Plaintiffs’

classes entirely at the mercy of the timing of a class certification decision, all while Defendants’

civil rights violations against affected class members continue. See, e.g., Comer v. Cisneros, 37

F.3d 775, 798-799 (2d Cir. 1994) (where court did not rule on promptly filed class certification

motion for two years, class certification relates back to original filing of the class complaint).

Third, a case is not moot if even a single plaintiff has standing, see Crawford, 553 U.S. at

189 n.7, and here, at least one class representative from each category continues to lack ID:

Frank (category one), Switlick and Green (category two), and Robertson (category three). While

Frank voted absentee by mail in this year’s elections without having to show ID under the

“indefinitely confined” exception, Wis. Stat. § 6.86(2)(a), this does not cure Frank’s injury, since

she prefers to vote in person, Ex. 4 at 13, which is a reasonable and justifiable desire since it is

more likely to result in one’s vote actually being counted as compared to voting absentee by

mail, Ex. 28 at 47-48. Furthermore, the “indefinitely confined” exception is vague, and provides

cold comfort to voters who are unsure whether they qualify—in fact, recently obtained discovery

suggests that municipal clerks have been unilaterally removing voters from the indefinitely

confined list, without notice, when in their subjective judgment a voter is not actually

indefinitely confined. Ex. 33 at 77-78. Lastly, the condition of being “indefinitely confined” is by

definition “indefinite,” see Wis. Stat. § 6.86(2)(a) (“If any elector is no longer indefinitely



29

confined, the elector shall so notify the municipal clerk.”), and Frank will need ID if and when

she is able to vote in person again.14

CONCLUSION

For the foregoing reasons, this Court should grant Plaintiffs’ motion for a preliminary

injunction, leave to file a supplemental pleading, and class certification. In addition, the Court

should enter a preliminary injunction as set forth in the proposed order attached to this motion.

KARYN L. ROTKER


LAURENCE J. DUPUIS


American Civil Liberties Union of Wisconsin

Foundation

207 East Buffalo Street, Suite 325

Milwaukee, WI 53202

(414) 272-4032

[email protected]

[email protected]

NEIL A. STEINER

Dechert LLP

1095 Avenue of the Americas

New York, NY 10036

(212) 698-3822

[email protected]

CRAIG G. FALLS

Dechert LLP

1900 K Street NW


Dated this 10th day of June 2016,

Respectfully submitted,

/s/ Sean J. Young

SEAN J. YOUNG

DALE E. HO

SOPHIA LIN LAKIN


Inc.

125 Broad Street, 18th Floor

New York, NY 10004

(212) 549-2693

[email protected]

[email protected]

[email protected]

LAUGHLIN MCDONALD


Inc.

230 Peachtree Street, Suite 1440

Atlanta, GA 30303

(404) 523-2721

[email protected]

TRISTIA BAUMAN

National Law Center on Homelessness &

Poverty

14

If this Court finds that Frank lacks standing, Plaintiffs respectfully seek leave to add a

substitute class representative.






30

(202) 261-3373

[email protected]

ANGELA M. LIU

Dechert LLP

35 West Wacker Drive, Suite 3400

Chicago, IL 60601

(312) 646-5816

[email protected]

2000 M Street NW, Suite 210


(202) 638-2535

[email protected]





RUTHELLE FRANK, et al.,

Plaintiffs,

v. Case No. 11-CV-1128 SCOTT WALKER, et al.,

Defendants.

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION, LEAVE TO FILE

SUPPLEMENTAL PLEADINGS, AND CLASS CERTIFICATION



- i -

TABLE OF CONTENTS

Page INTRODUCTION .......................................................................................................... 1

BACKGROUND ............................................................................................................. 3

I. Procedural posture ................................................................................... 3

II. Brief background of ID issuance procedures ........................................... 3

III. Current ID issuance procedures make it easy to get an ID for voting, even without available documentation or inconsistencies in documentation. ..................................................................................... 4

A. DMV has an efficient process for addressing inconsistencies in identity documents. ......................................... 5

B. If birth records are unavailable, DMV works with the Department of Health Services and other agencies to verify an applicant’s birth record and U.S. citizenship. .............. 6

C. If an applicant’s birth record cannot be verified through documents or an inter-agency identity match, DMV will process ID applications using other information. ........................ 7

D. Applicants have a qualifying ID card receipt while their application is being processed. ...................................................... 8

ARGUMENT ................................................................................................................ 10

I. This case is moot as to current Plaintiffs, and no proposed Plaintiff has standing because they cannot show that they are unable to vote due to an ID-related problem. ....................................... 10

A. The case is moot as to each Plaintiff, who either has a qualifying ID or has not used the simple process for getting one. .................................................................................. 11

B. None of the proposed Plaintiffs have standing because none have used the simple process for getting one. ................... 12



Page

- ii -

C. None of the declarants support Plaintiffs’ claims, because none of them could demonstrate that anyone in the proposed class has standing. ....................................................... 13

II. Plaintiffs request a severe disruption to the status quo, and they fail all of the preliminary injunction requirements. ............................. 13

A. Plaintiffs’ requested relief would alter the status quo, not preserve it. ................................................................................... 14

B. Plaintiffs have no likelihood of success on the merits. .............. 15

1. Voters with name mismatches in underlying documents are not prevented from getting an ID. .......... 15

2. Applicants are not required to contend with multiple agencies, and photo ID receipts are issued to everyone in the IDPP. ................................................... 16

3. Lack of a birth certificate does not result in denial of an ID application. ......................................................... 17

4. Any voter who cannot make a trip to DMV is exempt from the voter ID law. ......................................... 19

C. None of the plaintiffs can show irreparable harm because a state ID card receipt will preserve voting eligibility while any application is pending. ............................................... 20

D. Public interest and balancing of harms favor denying the preliminary injunction, because the State has a strong interest in regulating elections and preventing fraud that would be undermined by a loophole in the voter ID requirement. ................................................................................ 20

III. This Court has already ruled on Plaintiffs’ affidavit-at-the-polls request, and correctly held that it is an inappropriate remedy. .......... 22

IV. This Court should deny Plaintiffs’ request for leave to file a supplemental pleading. .......................................................................... 25

V. The Court should deny Plaintiffs’ class certification motion because they have not met their burden under Rule 23. ...................... 26

CONCLUSION ............................................................................................................ 30



INTRODUCTION

Anyone who goes to a Wisconsin DMV office and applies for a free state ID

will be mailed, within six days, either an ID card or photo receipt that is valid for

voting. (Boardman Decl. ¶ 40.) This is true regardless of whether the applicant

brings a birth certificate, regardless of a name mismatch in their documents, and

regardless of whether another state holds vital records. This has been true since

May 13, 2016, and it is a reality that is ignored in Plaintiffs’ filings.

“[T]he inconvenience of making a trip to the [D]MV, gathering the required

documents, and posing for a photograph surely does not qualify as a substantial

burden on the right to vote, or even represent a significant increase over the usual

burdens of voting.” Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 198 (2008)

(Opinion of Stevens, J.). Wisconsin DMV requires no more than what Crawford

describes. Indeed, DMV goes to great lengths to lighten the burden. For those who

have difficulty “gathering the required documents,” DMV will find the documents

for them. Just last month, Judge Peterson from the Western District of Wisconsin

described DMV’s efforts to find documents for applicants as “heroic.” (Murphy Decl.

Ex. 1007:P199; Ex. 1004:A108-9) (One Wisconsin Tr. 05-24-16, 7-P-199; 05-19-16

at 4-A-108-9.)0F

1 If no documents can be found, DMV will still issue an ID if it is more

1 Transcripts from the One Wisconsin trial are attached to the Declaration of S. Michael Murphy (“Murphy Decl.”). Citations are given both to the exhibits to the Murphy Declaration, and by trial date, with designations of morning and afternoon transcripts as “A” and “P,” respectively.



- 2 -

likely than not that the applicant is presenting an accurate identity. EmR1618 § 8.1F

2

And during the time DMV is assisting in getting a free ID, the applicant has an ID

receipt that is valid for voting. EmR1618 § 10.

Plaintiffs attempt to paint a much different picture of the ID issuance process

through a confusing mix of old law and stale facts. Much of their argument is based

on the previous trial in this case, which occurred in November 2013, and even cites

their own trial brief. (See Dkt. 165; Dkt. 279:92F

3 (citing Dkt. 194.)) Yet they

acknowledge that the current process for state ID issuance—the process that they

are now challenging—was created after that trial. (Dkt. 279:5.) Much of the

remainder of their arguments merely imports transcripts and exhibits from the

One Wisconsin3F

4 trial of just weeks ago. But they do not use testimony from the

nine-day public trial in One Wisconsin. Rather, they cite old deposition transcripts,

sometimes from months before the trial. (See Dkt. 280-34) (Deposition transcript

from January 2016).)

2 Available at: https://docs.legis.wisconsin.gov/code/register/2016/725A3/register/emr/emr1618_rule_text/emr1618_rule_text (Last visited on June 29, 2016.) 3 Docket 279 is Plaintiffs’ brief in support of their preliminary injunction request. The brief page numbers do not align with the docketing page numbers. For example, page 7 of the brief is page 9 of the docket entry. This brief cites the page of the docket entry, meaning that it corresponds with the “Page 9 of 32 Document 279” printed on the bottom of the page. 4 One Wisconsin Institute, Inc. v. Nichol, 15-CV-324 (W.D. Wis.).



https://docs.legis.wisconsin.gov/code/register/2016/725A3/register/emr/emr1618_rule_text/emr1618_rule_text


- 3 -

It is not difficult to understand why Plaintiffs are eager to rely on old facts

and old law. Current law leaves nothing to their case. The Court should deny

Plaintiffs’ motions.

BACKGROUND

I. Procedural posture

This case is on remand from the Seventh Circuit for two purposes.

First, Plaintiffs’ veterans-ID related challenges are to be dismissed as moot.

Frank v. Walker, 819 F.3d 384, 388 (7th Cir. 2016). Second, this Court is to inquire

as to whether the voter ID law creates “high hurdles” for some persons eligible to

vote. Id. at 386.

The Seventh Circuit instructed that “the state’s administrative agencies may

have made other adjustments since the end of discovery,” so this Court should

“permit the parties to explore how the state's system works today before taking up

plaintiffs’ remaining substantive contentions.” Id. at 388.

II. Brief background of ID issuance procedures

ID issuance procedures have changed since the trial in this case, as noted by

the Seventh Circuit. Id. On May 13, 2016, the ID issuance process was adjusted and

improved. Wis. EmR1618; (see also Boardman Decl. ¶ 39.) For purposes of this case,

the DMV’s May 13, 2016, rule contains two key features: it incorporates state ID

card receipts that are valid for voting through any application process, and it

codifies the best practices that have evolved through DMV’s experience. The rule

“ensur[es] that qualified applicants who [otherwise] may not be able to obtain



- 4 -

acceptable photographic identification for voting purposes with reasonable effort

will be able to obtain photographic identification before the next scheduled elections

[in August and November.]” Wis. EmR1618, at 9.

To succeed on their injunction request, Plaintiffs need to show that they can

prevail under current law. They cannot, because the current process makes it easy

for anyone to get an ID who will undertake “the inconvenience of making a trip to

the [D]MV, gathering the required documents, and posing for a photograph.”

Crawford, 553 U.S. at 198.

III. Current ID issuance procedures make it easy to get an ID for voting, even without available documentation or inconsistencies in documentation.

The ID issuance process was the topic of many hours of testimony spanning

many days, and many trial exhibits, in One Wisconsin. (See generally Murphy Decl.

¶¶ 5-18, Ex. 1001–12, 1021.) That trial thoroughly examined legal and factual

issues essentially identical to the issues in this case, and it was tried after

implementation of the May 13, 2016, DMV rule—meaning it includes more current

evidence than what has been submitted in Plaintiffs’ preliminary injunction papers.

(Murphy Decl. ¶ 4.) Records from the One Wisconsin trial explain the ID process far

more completely than can be done in the context of this preliminary injunction

response, so the trial record from One Wisconsin is being filed in support of denial of

the preliminary injunction. (Murphy Decl. and attached exhibits.)

Generally, to get a free ID, an applicant goes to one of DMV’s 92 service

centers staffed by over 350 people. (Boardman Decl. ¶ 7.) An applicant then



- 5 -

completes an application and provides documentation of his or her basic identifying

information: name, date of birth, legal presence in the United States, identity,

Wisconsin residency, and Social Security number. (Boardman Decl. ¶¶ 3, 5;

Ex. 1013); Wis. Admin. Code Trans. § 102.15. Explanations of all these

requirements are on DMV’s website, in both English and Spanish. (Boardman Decl.

¶ 6.)

An application is not denied if a person does not have all the documents, or if

there are inconsistencies in the documents. And no applicant has to pay a fee to get

documents to get a free ID. Addressing every contingency addressed by DMV’s

comprehensive procedures for issuing IDs is outside the scope of this response, but

each of the alleged problems described in Plaintiffs’ three proposed sub-classes are

addressed below.

A. DMV has an efficient process for addressing inconsistencies in identity documents.

Name mismatches or inconsistencies in identity documents do not result in

denial of an ID. Wis. EmR1618, §§ 1–3; (Boardman Decl. ¶ 37; Ex. 1019.) For a

simple single-letter discrepancy, such as an application from a “Shawn Smith”

whose birth certificate says “Shaun Smith,” an ID is issued in the normal way from

a DMV service center. (See Boardman Decl. ¶36; Ex. 1018, at 1.) These simple name

spelling discrepancies do not require any special processing and are not an

impediment to an ID issuance. (See Boardman Decl. ¶ 35; Ex. 1018, at 1.)

For someone with an entirely different name on her documents, such as an

application from “Jill Bruno” whose documentation shows her name as “Jill Green,”



- 6 -

DMV uses an affidavit to issue an ID. (Boardman Decl. ¶ 37.) DMV has an efficient

process to implement the affidavit process. (Boardman Decl. ¶¶ 35, 38; Ex. 1018.)

DMV has an affidavit form that the service center collects and sends to DMV’s

Madison office for issuance of an ID. (Boardman Decl. Ex. 1018, at 2.) It permits

DMV employees to witness the signature, to prevent the possibility of anyone

needing to pay a notary fee. (Boardman Decl. ¶ 38.) The affidavit does not require

an applicant to change his or her name. (Boardman Decl. ¶ 37; Ex. 1019.) Rather, it

provides evidence of a legal name that is different than that reflected on a birth

record. (Boardman Decl. ¶ 37.)

B. If birth records are unavailable, DMV works with the Department of Health Services and other agencies to verify an applicant’s birth record and U.S. citizenship.

If an applicant does not have available documents to verify his or her birth

record and citizenship, DMV uses the ID Petition Process (IDPP), which is designed

for that situation. (Boardman Decl. ¶ 11.) The IDPP starts by DMV gathering birth

record information, such as family maiden names and place of birth. (Boardman

Decl. Ex. 1015.) DMV then coordinates directly with DHS to verify birth record

information:

the department of transportation shall forward the petition to the central office of its division of motor vehicles for processing. The administrator shall provide the person's birth record information to the department of health services, for the sole purpose of verification by the department of health services of the person's birth certificate information or the equivalent document from another jurisdiction, other than a province of the Dominion of Canada, or to a federal agency for the sole purpose of verifying the person's certificate of birth abroad issued by the U.S. department of state, or of verifying the person's alien or U.S. citizenship and immigration service number or U.S. citizenship certificate number. The administrator shall open



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a file containing the petition and shall create therein a report with a dated record of events, including all communication to or with the applicant.

Wis. EmR1618, § 7 (editing marks omitted). DMV does the legwork for this

matching process. (See Boardman Decl. ¶¶ 15, 17, 20.) DHS uses state and national

databases to verify information for most applicants, without the need to obtain an

individual document. (See Boardman Decl. ¶ 17.) If the birth record of an applicant

cannot be verified, the application proceeds to the next stage where alternative

information is used.

C. If an applicant’s birth record cannot be verified through documents or an inter-agency identity match, DMV will process ID applications using other information.

The vast majority of applicants who apply through the IDPP get their ID

after the DHS information-matching process. (Boardman Decl. ¶ 32; Ex. 1017

(902 of 1,132 IDPP applications granted after DHS check).) But a non-match does

not result in denial. (Boardman Decl. ¶ 20.) In that event, applications are

forwarded to DMV’s Compliance, Audit, and Fraud Unit (CAFU) to be individually

researched by trained investigators. The investigation proceeds with “prompt and

due diligence.” Wis. EmR1618, § 8. (Boardman Decl. ¶¶ 20, 23.)

The investigators’ primary goal is to issue an ID to whoever is eligible.

(Boardman Decl. ¶ 23.) They use numerous and varied efforts in helping petitioners

obtain IDs, including poring over ancient documents and forms, searching various

databases, examining whatever personal documents petitioners might provide, and

following up with the petitioners on any possible lead. (Boardman Decl. ¶ 24.)



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The investigators are not restricted in the information they can consider.

(Boardman Decl. ¶ 25.) If primary documents, such as a birth certificate, are not

available, then investigators can consider other evidence such as baptismal

certificates, hospital birth certificate, census record, early school record, family

bible, and doctors’ records of post-natal care. (Boardman Decl. ¶ 27.) If investigators

request information or a document from another jurisdiction, and that jurisdiction

is slow to respond, the whole process does not stop while the other jurisdiction is

working. Instead, investigators use other leads and other methods to issue an ID.

(Boardman Decl. ¶ 25.) An ID is issued when it is more likely than not that the

name, date of birth, and U.S. citizenship information on an application is correct,

based upon secondary documentation or other corroborating information.

Wis. EmR1618, § 8. Throughout this process, the applicant will have a photo ID

receipt that is valid for voting.

This process does not cost applicants anything. DMV staff makes it very clear

that they are under no obligation to pay a fee for a document or birth record and

U.S. citizenship verification. (Boardman Decl. ¶ 16.) DMV has funding to get a

document that is necessary to issue an ID. (Boardman Decl. ¶ 28.) This process is

referred to within DMV as a “Fee Based Resolution,” and is part of the standard

DMV practices. (Boardman Decl. ¶¶ 22, 28; Ex. 1016, at 12–13.)

D. Applicants have a qualifying ID card receipt while their application is being processed.

The vast majority of people who apply for a free state ID have the required

documents and get their card in the mail after one trip to a DMV service center.



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(Boardman Decl. ¶¶ 10, 32.) But not having available documents does not prevent

an applicant from quickly getting an ID document that is valid for voting.

DMV “shall issue an identification card receipt . . . to any individual who has

applied for an identification card without charge for the purposes of voting and who

makes a written petition [under the administrative procedure for applicants

without available documentation].” Wis. EmR1618, § 10 (emphasis added).

An applicant gets a receipt even if he or she does not have a Social Security

number. Wis. EmR1618, § 4.

These photo receipts must be issued to the applicant not later than the sixth

working day after the application. Wis. EmR1618, § 10. But, during an election

week, DMV will issue a photo ID receipt by mail on the day that a person makes an

application. (Boardman Decl. ¶ 44.) This is done specifically to provide applicants

who were not prepared with a compliant voter ID before going to the polls with an

opportunity to cast a provisional ballot and produce an ID in time for the

provisional ballot to be counted. (Boardman Decl. ¶ 44.)

The photo receipt is renewed automatically, and replacements are sent 10

days before expiration of the prior receipt to ensure that there is no gap when an

applicant does not have a valid ID. Wis. EmR1618, § 10. A person will continue

getting renewal ID receipts as long as DMV has information to work with, and as

long as the petitioner cooperates in the process. Renewed receipts will cease only in

the event of fraud, when a person is found to be ineligible, when an applicant does

not respond to multiple DMV inquiries with information that can advance the



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investigation for a period of 180 days,4F

5 or when a customer requests that DMV

cancel the process. (Boardman Decl. ¶ 41); Wis. EmR1618, § 10.

ARGUMENT

Plaintiffs have no live claim, and cannot meet the legal standards for a

preliminary injunction. Even if they could make their basic legal showing, the

remedy that they propose is impermissible and unworkable. The Court has already

found that it would be judicial legislation to order an affidavit-at-the-polls

exception. Plaintiffs have identified no cognizable class or class representatives.

Their attempt to re-define this entire case with new plaintiffs and new facts should

be denied.

I. This case is moot as to current Plaintiffs, and no proposed Plaintiff has standing because they cannot show that they are unable to vote due to an ID-related problem.

A plaintiff must show that a “challenged action of the defendant caused an

‘injury in fact’ that is likely to be redressed by a favorable decision.” Judge v. Quinn,

612 F.3d 537, 544 (7th Cir. 2010), opinion amended on denial of reh’g,

387 F. App’x 629 (7th Cir. 2010). And even if there was a past injury, “a suit

becomes moot, ‘when the issues presented are no longer ‘live’’” Chafin v. Chafin,

133 S. Ct. 1017, 1023 (2013).

5 This 180-day period addresses applicants who will not cooperate with DMV or answer questions to help investigators verify their identity. It is a procedural safeguard that applies, for example, when someone applies for an ID, but then completely ignores DMV’s follow-up communications.



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None of the current or proposed Plaintiffs can demonstrate that he or she is

unable to get an ID for voting purposes, because none have used DMV’s easy

procedure for getting one. Without this basic showing, they have no live claim.

A. The case is moot as to each Plaintiff, who either has a qualifying ID or has not used the simple process for getting one.

At trial, only three of 25 original Plaintiffs testified or submitted evidence to

show that they did not have a qualifying ID. (Dkt. 167:1-4 and citations therein.)

Those three were Ruthelle Frank, Shirley Brown, and Eddie Lee Holloway, Jr. (Id.)

Of them, Ruthelle Frank has voted while the ID law has been in effect, Shirley

Brown has a valid state ID, and Eddie Lee Holloway, Jr. has not taken advantage of

the process to get an ID or photo receipt. (Boardman Decl. ¶¶ 46–48; Haas Decl.

¶ 43.) Ms. Frank’s claim is moot because she has voted under the challenged law,

Ms. Brown’s claim is moot because she has obtained a qualifying ID, and

Mr. Holloway’s claim is moot because he cannot complain about the new procedure

that he has not even tried to use.

Plaintiffs only argue non-mootness for three of the current Plaintiffs:

Ms. Frank, Ms. Brown, and DeWayne Smith. (Dkt. 279:25, 27.) Ms. Frank and

Ms. Brown are addressed above, and DeWayne Smith testified at trial that he has a

state ID card, again mooting any claim that he might have had.

(Frank Trial Tr. vol. 3, 695–96, Nov. 6, 2013.)

Even looking beyond what Plaintiffs have presented, not a single Plaintiff

has a live claim. Seven Plaintiffs have a valid state ID: Justin Luft, Barbara Oden,



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Pamela Dukes, Anthony Judd, Anna Shea, Shirley Brown, and Frank Ybarra.

(Boardman Decl. ¶ 46.) Another four have a valid Wisconsin driver license: Anthony

Sharp, Sarah Lahti, Edward Hogan, and Nancy Lea Wilde. (Boardman Decl. ¶ 47.)

Ruthelle Frank, Nancy Lea Wilde, Edward Hogan, Max Kligman, and Barbara

Oden voted while the voter ID law was in effect. (Dkt. 279:30.) (Haas Decl. ¶ 43.)

Nancy Lea Wilde is deceased.5F

6 And DeWayne Smith testified at trial that he has a

Wisconsin state ID card. (Frank Trial Tr. vol. 4, 856, Nov. 7, 2013 (Smith

testimony).)

None of the others have used the current procedure that would quickly and

easily get them an ID. (Boardman Decl. ¶¶ 48, 51.) If they were to visit a DMV

service center and fill out an application, and an unavailable documentation form if

necessary, they would be issued either an ID card or ID receipt within six days that

could be used to vote. (Boardman Decl. ¶¶ 48, 51.)

B. None of the proposed Plaintiffs have standing because none have used the simple process for getting one.

None of the proposed Plaintiffs—Melvin Robertson, James Green, and Leroy

Switlick—have taken advantage of DMV’s current procedure for easily and quickly

getting an ID. (Boardman Decl. ¶¶ 51–52.) Melvin Robertson has actually voted

while the voter ID law was in effect. (Haas Decl. ¶ 43.) James Green has not used

the process for getting one. (Boardman Decl. ¶ 51.)

6 (Dkt.160-5 (obituary); see also http://www.helke.com/obituary/Nancy-L.-Wilde/Schofield-WI/1190644.)



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Leroy Switlick is an unusual case. Long before Plaintiffs’ injunction motion,

the Director of Field Services of DMV, Jim Miller, became aware of Mr. Switlick’s

situation, and got personally involved. (Murphy Decl. Ex. 1006:221; One Wisconsin

Tr. 05-23-16 at 221.) Mr. Miller contacted the local DMV supervisor, who contacted

Mr. Switlick try to help him obtain an ID. (Id. at 221–22.) The very next day, Mr.

Switlick’s attorney contacted DMV and instructed DMV not to contact Mr. Switlick,

preventing DMV from working toward issuing an ID. (Id.) Mr. Miller testified in the

One Wisconsin trial that if he were permitted to contact Mr. Switlick he would do

so. (Id.) Plaintiffs cannot manufacture standing by preventing DMV from issuing

their IDs.

C. None of the declarants support Plaintiffs’ claims, because none of them could demonstrate that anyone in the proposed class has standing.

Like the current and proposed Plaintiffs, none of the declarants have used

the current easy process of getting an ID. (Boardman Decl. ¶¶ 51–52.) And each

could have an ID mailed to them within six days by doing no more than what

Crawford has already said is acceptable: make a trip to DMV, present available

documents, and pose for a picture. Crawford, 553 U.S. at 198.

II. Plaintiffs request a severe disruption to the status quo, and they fail all of the preliminary injunction requirements.

Preliminary injunctions exist to preserve the status quo pending a final

decision. A preliminary injunction requires four elements: a reasonable probability

of success on the merits, irreparable injury, the lack of serious adverse effects on



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others, and sufficient public interest. Am. Hosp. Ass’n v. Harris, 625 F.2d 1328,

1331 (7th Cir. 1980). Plaintiffs have met none of these requirements.

A. Plaintiffs’ requested relief would alter the status quo, not preserve it.

The purpose of a preliminary injunction is to preserve the status quo pending

a final hearing on the merits. Harris, 625 F.2d at 1330. Here, the status quo is

Wisconsin’s current election administration structure. This is the same structure

that was in place during the April 2016 election, where even an election expert who

testified against the State acknowledged that voter turnout was so high it was

“astounding.” (Murphy Decl. Ex. 1002:42; One Wisconsin Tr. 05-17-16 at 42.)

Indeed, turnout in the April primary was the highest primary turnout in 40 years.

(Murphy Decl. Ex. 1022:DX171; Ex. 1008:A26; One Wisconsin DX1716F

7; Tr. 05-25-16,

8-A-26.)

Plaintiffs ask this Court to change, not preserve, this highly effective status

quo election procedure. They want this Court to create a polling-place affidavit

process that has never before been used in the history of Wisconsin. And they also

want an expensive and overbroad mailing to voters that is likely to cause mass

confusion. (Dkt. 279:23.) This is a radical, burdensome, and expensive departure

from the status quo that should be denied.

7 Trial exhibits from the One Wisconsin trial are designated as either the plaintiff’s exhibits (“PX”) or the defendant’s exhibits (“DX”), followed by the exhibit number.



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B. Plaintiffs have no likelihood of success on the merits.

Plaintiffs fall far short of showing that it is “needlessly hard”7F

8 to get photo ID

or that they “face daunting obstacles to obtaining acceptable photo ID.”8F

9 Instead,

their reliance on old law and stale facts is an attempt to obscure the effectiveness of

the ID issuance process.

1. Voters with name mismatches in underlying documents are not prevented from getting an ID.

Plaintiffs’ first category of allegations relate to people with documents that

contain name inconsistencies. Their arguments rely entirely on out-of-date

information. They cite testimony from trial in this case from years ago. (See, e.g.,

Dkt. 279:9-10.) And they cite affidavits from before the law change. (Dkt. 279:9

(citing Dkt. 280-31).) These are all from before the May 13, 2016, rule that

formalized the common law name change affidavit procedure. Wis. EmR1618, § 3

(including an affidavit as proof of name and date of birth under Admin. Code Trans.

§ 102.15(3)). Plaintiffs acknowledge the existence of the current law, but fail to cite

the section that specifically addresses common law name change affidavits that

cure name discrepancies. (Dkt. 279:10.)

As described above, name inconsistencies do not result in denial of an ID card

application. Simple misspellings and typos are resolved right at a DMV service

center. And when documents list different names, IDs are issued through an

8 Frank v. Walker, 768 F.3d 744, 753 (7th Cir. 2014). 9 Frank v. Walker, 819 F.3d 384, 385 (7th Cir. 2016).



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affidavit that does not require the applicant to change his or her name. Plaintiffs’

vague complaints based on stale facts do not meet their burden to show that DMV’s

current sensible process for handling name changes imposes a severe burden on

voting.

2. Applicants are not required to contend with multiple agencies, and photo ID receipts are issued to everyone in the IDPP.

Plaintiffs’ description of their proposed sub-class (2) is extremely vague, but

it generally relates to people who they believe need to get a birth certificate from

the Department of Health Services (DHS), or those who do not have a photo ID that

is required to obtain documents from other jurisdictions. (Dkt. 279:10–12.) Plaintiffs

predictably rely primarily on citations to the 2013 trial in this case and the

corresponding stale facts and out-of-date law. Their arguments fail because current

law and DMV procedures address these situations. As described above,

DMV coordinates information-matching with DHS. See also Wis. Admin. Code

§ Trans 102.15(5m)(a)(2). No potential member of sub-class (2) needs to visit DHS

separately from DMV, and Plaintiffs have no contemporary evidence of this

occurring.

Plaintiffs also argue that hypothetical sub-class (2) applicants can be caught

in a “Catch 22” of not having a photo ID, but needing an ID to get a document that

is required to obtain an ID. (Dkt. 279:10–11.) But applicants have a valid photo

receipt while they are in the IDPP process of getting an ID where they have

unavailable documentation. DMV can use the state ID card receipts issued to the



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customer to request birth records and source documents from other jurisdictions

that require a photo ID. (Boardman Decl. ¶ 45.)

The sub-class (2) allegations also include a suggestion that a person without

an ID on Election Day will not be able to get an ID in time to vote with a

provisional ballot, and may have to pay a fee. (Dkt. 279:11–12.) These allegations

are false. During election weeks, photo receipts will be issued the same day as an

application, and no one is required to pay for documents to get a free ID. (Boardman

Decl. ¶¶ 16, 28, 44.)

Plaintiffs point to five instances where they allege a person could not get an

ID because of multiple-agency issues. (Dkt. 279:12.) None of these supposed

examples occurred under current law, and none demonstrate a current problem that

warrants preliminary relief. Indeed, one of their examples, Ms. Harwell, has a state

ID card. (Boardman Decl. ¶ 49.) None of the other four have used DMV’s current

procedure for obtaining an ID with unavailable documentation. (Boardman Decl.

¶¶ 51–52.) If they take the simple step of going to a DMV office and filling out an

unavailable documentation form, they would get a photo receipt that is valid for

voting. (Boardman Decl. ¶¶ 51–52.)

3. Lack of a birth certificate does not result in denial of an ID application.

Plaintiffs’ proposed sub-class (3) includes voters with nonexistent or

unavailable birth records. (Dkt. 279:13–19.) Lack of a birth certificate, or any other

particular record, does not result in a denial. Wis. Admin. Code § Trans 102.15(5m);

Wis. EmR1618 § 8; (Boardman Decl. ¶ 11.) Instead, DMV considers the totality of



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the available information and issues an ID if it is more likely than not that the

name, date of birth, or U.S. citizenship status in an application is correct.

Wis. EmR1618 § 8. Plaintiffs do not dispute this point

Plaintiffs’ core dispute is with the process by which this decision is made,

which is the IDPP. (See Dkt. 279:13–19; (Boardman Decl. ¶ 11).) As described

above, the IDPP engages trained investigators who work diligently to find

identification information for applicants. During the One Wisconsin trial, the

district court heard from DMV investigators and their supervisors. Upon that

evidence, Judge Peterson described the investigators’ work as “heroic.”

(Murphy Decl. Ex. 1007:P199; Ex. 1004:A108–9) (One Wisconsin Tr. 05-24-16,

7-P-199; 05-19-15 at 4-A-108–9.) Plaintiffs’ attempt to disparage DMV’s efforts and

decision making, using stale facts and law, is unpersuasive.9F

10

DMV’s decisions are not made on “passing whim or impulse.” (Dkt. 279:17.)

Decisions are not contingent on having a Social Security card, a birth certificate, or

strictly consistent documents. The decision is made based on law, including DMV’s

administrative code, and an ID is issued when it is more likely than not that the

10 Plaintiffs misrepresent the nature of errors that are tracked by the investigation team. (Dkt. 279:15.) Much of what the report addresses is completely internal and relates to office efficiency. Indeed, that report includes errors made by applicants that have nothing to do with the investigators’ work. (Dkt. 280-47:2 (“MV3012 not complete or completed incorrectly.”).) Of all the error types included in the error report, most are resolved in an hour or less, with the vast majority of the remainder being resolved within the next business day. The only way that one of these errors would result in the non-issuance of an ID is if it involved field staff not scanning or copying a necessary document from the customer, and the customer did not follow-up by forwarding the necessary information. (Boardman Decl. ¶ 34.)



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information on an application is accurate. (Boardman Decl. ¶ 29); Wis. EmR1618,

§ 8.

Plaintiffs complain that the IDPP process does not guarantee issuance of an

ID to every applicant. (Dkt. 279:16.) That is true, because not every applicant is

entitled to an ID, and DMV has denied an IDPP application from a person who was

not a U.S. citizen. (Boardman Decl. ¶ 33.) Without the verification process, this

individual would have likely gotten an ID and been able to vote. (Boardman Decl.

¶ 33.)

4. Any voter who cannot make a trip to DMV is exempt from the voter ID law.

As explained above, it is easy to quickly get an ID for voting purposes with a

single trip to DMV. However, it is possible that making that trip is an undue

burden on some voters. See Crawford, 553 U.S. at 198 (noting that the burden of a

trip to a state agency is not an undue burden for “most voters”).

Those voters are exempt from the voter ID law. Wis. Stat. § 6.86(2)(a).

Anyone who is indefinitely confined or disabled can get a ballot at home

automatically for every election. Id. That ballot can be returned and counted

without proof of identification. Wis. Stat. § 6.87(4)(b)2. Anyone who is confined,

such that going to DMV would be an undue burden, does not require an ID for

voting.

The effectiveness of this process is demonstrated by the lead plaintiff in this

case, Ruthelle Frank. According to Plaintiffs, she votes using this exception.

(Dkt. 279:30.) Because this case is about voting, not ID possession, Ms. Frank



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demonstrates that the exceptions built into the voter ID law prevent any undue

burden on voting.

C. None of the plaintiffs can show irreparable harm because a state ID card receipt will preserve voting eligibility while any application is pending.

Anyone who applies for an ID either quickly gets an ID, or is issued a photo

receipt that is valid for voting for at least 180 days.10F

11 180 days from the filing of the

preliminary injunction motion is December 7, 2016. So anyone that is potentially

within the scope of the preliminary injunction motion can have an ID that will be

valid for the August and November 2016 elections, even assuming the truth of the

allegations in the injunction motion. After the election in November 2016, the next

statewide election will be held on February 21, 2017, meaning there is no threat of

harm for at least eight months. (Haas Decl. ¶ 44.) 11F

12

D. Public interest and balancing of harms favor denying the preliminary injunction, because the State has a strong interest in regulating elections and preventing fraud that would be undermined by a loophole in the voter ID requirement.

The U.S. Supreme Court has recognized States’ interests in preventing fraud,

promoting orderly election administration, accurate recordkeeping, and

safeguarding public confidence in the integrity of the election process. Crawford,

11 The only way an applicant would not have a valid photo receipt for 180 days is if they commit fraud, affirmatively cancel their application, or are determined to not be eligible. (Boardman Decl. ¶ 41); Wis. EmR1618, § 10. Anyone in that situation is not “harmed” because they either no longer want to be part of the application process, or they do not meet the criteria for having an ID. 12 The Declaration of Michael Haas is referred to as the “Haas Decl.”



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553 U.S. at 191–97 (Opinion of Stevens, J.). Other post-Crawford decisions in voter

photo ID cases have readily recognized the same state interests.12F

13 After Crawford,

the State’s interests in an ID requirement are not subject to debate.

These interests are not served by the affidavit exception proposed by

Plaintiffs, which would exempt any person from complying with the voter ID law for

any “subjective” reason without any process for verifying that reason. (Dkt. 279:19.)

Wisconsin should be permitted to preserve its legitimate interest in protecting the

integrity of its elections.

And it is important to note that Plaintiffs are asking for their severe

remedies on a preliminary basis. If granted, the relief sought could be reversed on

appeal or reverted to the current status quo after a final decision. Changing election

requirements from one procedural stage of this case to another would result in voter

confusion and waste election administration resources. A final decision should be in

place before the proposed overhaul of voter ID procedures is implemented, if

necessary.

13 See, e.g., Frank, 768 F.3d at 750–51; City of Memphis v. Hargett, 414 S.W.3d 88, 103–05 (Tenn. 2013); South Carolina v. United States, 898 F. Supp. 2d 30, 43–44 (D.D.C. 2012); Democratic Party of Ga., Inc. v. Perdue, 707 S.E.2d 67, 75 (Ga. 2011); League of Women Voters of Ind. v. Rokita, 929 N.E.2d 758, 767–69 (Ind. 2010); Common Cause/Georgia v. Billups, 554 F.3d 1340, 1353–54 (11th Cir. 2009).



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III. This Court has already ruled on Plaintiffs’ affidavit-at-the-polls request, and correctly held that it is an inappropriate remedy.

This Court has already held that it cannot grant the remedy that Plaintiffs

are requesting:

The plaintiffs suggest that I could order the defendants to allow eligible voters without photo IDs to vote without showing an ID or by signing an affidavit affirming their identities and lack of an ID. However, ordering such relief would be the functional equivalent of enjoining the current law and replacing it with a new law drafted by me rather than the state legislature. It is not clear that this approach would amount to a narrower remedy than simply enjoining the current law. Moreover, the Supreme Court has instructed the federal courts to avoid “judicial legislation,” United States v. Nat'l Treasury Employees Union, 513 U.S. 454, 479, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995), and this is an apt term for the remedy envisioned by the plaintiffs. To grant this remedy, I would need to make a policy judgment as to whether eligible voters who do not have IDs should be required to sign affidavits of identity before receiving a ballot. And, if I found that an affidavit was required, I would need to decide what language the affidavit should contain. Once I issued this relief, I would have to supervise the state's election-administration officials to ensure that they were properly implementing my instructions. These tasks are outside the limited institutional competence of a federal court, and therefore I may not rewrite the photo ID requirement to conform it to constitutional requirements. See Ayotte v. Planned Parenthood, 546 U.S. 320, 329–30, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006).

Frank v. Walker, 17 F. Supp. 3d 837, 863 (E.D. Wis. 2014), reversed 768 F.3d 744

(7th Cir. 2014).

Plaintiffs offer no explanation as to why this Court should reverse itself and

re-write the voter ID law, engage in improper judicial legislation, make policy

decisions regarding the contents of an affidavit, and then supervise state elections.

This Court was correct in 2014. Plaintiffs are doing no more than asking for the

same thing again—and their request should be denied again.

Plaintiffs point to North Carolina and South Carolina as examples of how an

affidavit exception can be an appropriate part of an election system. (Dkt. 279:7.)



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Both of those States have statutes defining the affidavit process—in neither state

did a federal court impose the affidavit rule. N.C. Gen. Stat. § 163-166.13(c)(2);

S.C. Code § 7-13-710(D)(1)(b). The only example served by those States is that the

mechanics of state voting procedures is entrusted to States, not federal courts.

See Burdick v. Takushi, 504 U.S. 428, 433 (1992) (“States retain the power to

regulate their own elections.”).

A court order mandating an affidavit exception would be a quagmire for

Wisconsin election administration, and it would be extremely difficult to

implement.13F

14 (Haas Decl. ¶¶ 4–7.) Municipal clerks, not Defendants, have

“charge and supervision of elections.” Wis. Stat. § 7.15(1). The election-

administration Defendants do not have authority to require clerks to make

affidavits available, and the clerks are not parties to this case. (Haas Decl.

¶¶ 13–14.) Ordering Defendants to impose an affidavit exception would place them

in the impossible position of having to promulgate rules that are contrary to state

law, and impose those rules on clerks, who do not answer to those Defendants.

(Haas Decl. ¶¶ 5–7, 11–17.)

14 Implementing an affidavit exception before the August 2016 election is not possible. (Haas Decl. ¶¶ 8–10.) Ballots for that election could be sent as early as June 10, and certain absentee ballots were required to be sent by June 23. (Haas Dec. ¶ 10.)



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Plaintiffs also request an absurd standard for evaluating the contents of a

hypothetical affidavit: that “any reason that the voter subjectively deems

reasonable” would be sufficient. (Dkt. 279:21.) Taken at their word, they propose

that valid reasons for an exemption from the voter ID requirement could include

simply not wanting to go to DMV or pose for a photo—reasons already ruled

insufficient by the U.S. Supreme Court. Crawford, 553 U.S. at 198.

And Plaintiffs do not stop at just wanting an impractical and standardless

affidavit. They also want a nonsensical and expensive advertising campaign as part

of their preliminary relief. (Dkt. 279:23 (requesting “at a minimum that Defendants

be required to mail individualized notice of the voter ID law and affidavit option to

any registered voter who does not appear as having acceptable photo ID in the DMV

database, and that the affidavit option be included in any existing publicity

material related to Voter ID.”).) Mailing notice to voters who are not in the DMV

database makes no sense, because Wisconsin’s voter ID law approves several types

of ID, including many that have nothing to do with DMV. Wis. Stat. § 5.02(6m)

(including a U.S. Uniformed Service card, a U.S. Passport, a certificate of U.S.

naturalization, an Indian tribe ID, certain college IDs, and veteran ID cards);

(Haas Decl. ¶ 22.) There is no centralized list of Wisconsin residents who lack all

forms of acceptable ID. (Haas Decl. ¶ 24.) The mailing requested by Plaintiffs would

result in many voters who have a qualifying ID getting an unsolicited mailing about

an ID exception, which would cause unnecessary expense and confusion.

(Haas. Decl. ¶¶ 28–29.)



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Performing such a mailing, and re-writing and re-publishing existing election

materials, would also be expensive and require expenditure of money that elections

administrators do not have. (Haas Decl. ¶¶ 35–37, 42.) That money would be

wasted, and mass confusion would be created, if a hypothetical preliminary

injunction were reversed, or a final injunction denied, and the situation returned to

current procedures.

IV. This Court should deny Plaintiffs’ request for leave to file a supplemental pleading.

The trial in this case was held in November 2013—two-and-a-half years ago.

(Dkt. 165, 166–71.) Plaintiffs have now proposed adding new facts, and new parties.

This request should be denied as unnecessary and duplicative of parallel litigation.

Supplemental pleadings are intended to avoid the risk of a “separate,

redundant lawsuit” dealing with the same issues. The Fund for Animals v. Hall,

246 F.R.D. 53, 55 (D.D.C. 2007); see also Habitat Educ. Ctr., Inc. v. Kimbell,

250 F.R.D. 397, 402, (E.D. Wis. 2008). The goal is to “avoid the cost, delay and

waste of separate actions which must be separately tried and prosecuted” Id.

(quoting New Amsterdam Cas. Co. v. Waller, 323 F.2d 20, 28–29 (4th Cir. 1963)).

That is the opposite of what Plaintiffs are trying to do. The One Wisconsin

case already addressed the claims of two of the proposed Plaintiffs. (See Murphy

Decl. Ex. 1003:A129–52; (One Wisconsin Tr. 5-18-2016 3-A-129–52.)) (Switlick

testimony); (Murphy Decl. Ex. 1001:P26–37; One Wisconsin Tr. 5-16-2016

1-P-26–37 (testimony about Robertson). One of the new proposed Plaintiffs, Switlick

even testified at that trial. (See Murphy Decl. Ex. 1003:A129–52; (One Wisconsin



- 26 -

Tr. 5-18-2016 3-A-129–52.)) The One Wisconsin court indicated that it will have a

final decision ready by the end of July. (See Murphy Decl. Ex. 1009:9-8

(One Wisconsin Tr. 5-26-2016 9-8.)) For Plaintiffs to now ask this Court to expand

this case to include those individuals, on an issue that will be disposed of in less

than one month, would be the hallmark of inefficiency.

Plaintiffs’ proposed supplementation and party addition is “a desperate effort

to protract the litigation and complicate the defense.” Glatt v. Chicago Park Dist.,

87 F.3d 190, 194 (7th Cir. 1996). Their request should be denied as redundant and

duplicative. Cf. Van Hollen v. Fed. Election Comm’n, 291 F.R.D. 11, 13 (D.D.C.

2013) (refusing to allow supplementation where, after trial and appeal, intervenor

sought to add new claims which depended entirely on a different record than what

was before the court).

V. The Court should deny Plaintiffs’ class certification motion because they have not met their burden under Rule 23.

The Court should deny Plaintiffs’ class certification motion because the

putative class does not meet the requirements of Rule 23. The putative class is

vague, indefinite, and would be unmanageable. Certifying the class would be

reversible error.

It is Plaintiffs’ burden to establish compliance with Rule 23 by a

preponderance of the evidence.14F

15 Messner v. Northshore Univ. HealthSystem,

669 F.3d 802, 811 (7th Cir. 2012). This Court “may not simply assume the truth of



- 27 -

the matters as asserted by the plaintiff.” Id. Plaintiffs must “affirmatively

demonstrate [their] compliance with [Rule 23]—that is, [they] must be prepared to

prove that there are in fact sufficiently numerous parties, common questions of law

or fact, etc.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).

Plaintiffs define the putative class as

eligible Wisconsin voters without acceptable ID for voting and who have one or more of the following barriers to obtaining ID: (1) name mismatches or other errors in a document needed to obtain ID; (2) need to obtain an underlying document from an agency other than the DMV in order to obtain ID; and/or (3) one or more underlying document(s) necessary to obtain ID cannot be found.

(Dkt. 279:25–26.) The proposed class representatives cannot represent the putative

classes because none of them has a live claim, as explained above.

Plaintiffs’ attempt to save their case by inserting three new Plaintiffs is

meritless. Robertson testified at trial in November 2013 about his past efforts to get

an ID card, but his latest declaration does not describe whether he has undertaken

any reasonable efforts whatsoever since then to obtain a free State ID card from

DMV. (See Dkt. 280-5.) His declaration also does not establish whether he falls into

sub-class (1), (2), or (3). He does not know if he has a name mismatch, and he

already has a Social Security card with his name on it. (Dkt. 280-5:2). Green also

does not have a name mismatch problem, and he does not aver that he has made

15 Defendants described Rule 23’s requirements in their post-trial brief and in briefs opposing class certification. (Dkt. 176:82–89; Dkt. 83:2–7; Dkt. 228:4–5, 5–12.) They adopt that briefing here.



- 28 -

any reasonable effort whatsoever to obtain a free state ID. (Dkt. 280-7.)

And Switlick’s declarations do not indicate that he has a name mismatch,

that he cannot find his Social Security card, or whether he has even tried to

find it. (Dkt. 280-6.)

In addition, the putative class is too vague, indefinite, and unmanageable to

certify and administer. For example, as to sub-class (1), Plaintiffs fail to define

name mismatch, and it could mean different things. Is one letter wrong sufficient?

Do the first and last names have to be swapped? Who decides? This Court? DMV? A

local election official? It is unreasonably difficult to figure out who is in sub-class

(1), making it impossible to administer the class.

The putative class lacks commonality. See Fed. R. Civ. P. 23(a)(2).

The plaintiff must demonstrate that class members have suffered the same injury.

Wal-Mart, 564 U.S. at 349–50. A class definition that entails individualized

questions of fact and law, and which produces unique answers respective of each

claimant, does not meet the requirements for commonality. See Jamie S. v.

Milwaukee Pub. Schs., 668 F.3d 481, 496–97 (7th Cir. 2012). By Plaintiffs’ own

definitions, each class member has unique facts and circumstances regarding name

spellings, “other errors,” or deficiencies in their documentation.

The putative class does not meet the typicality requirement. See Fed. R. Civ.

P. 23(a)(3). The proposed representatives’ circumstances are not only completely

distinct from each other, but they are not typical of other voters who lack ID cards.



- 29 -

The putative class does not satisfy the numerosity requirement. See Fed. R.

Civ. P. 23(a)(1). Plaintiffs’ brief includes only stale references to evidence from the

November 2013 trial that is not reliable now due to the passage of time.

(Dkt. 279:26–27.) And their vague generalities do not quantify the putative class

size. “Many,” “a lot,” and “several”—the words used by Plaintiffs—do not meet their

burden for the numerosity requirement. (Id. at 27.) And we know that 95% of people

over 18 years old in Wisconsin have a driver license. (Boardman Decl. ¶ 4.) Add to

that the number of people with one of the several other forms of qualifying ID, and

the most likely inference in the absence of any evidence is that the number of people

in the putative classes is extremely small, and insufficient to justify class

certification.

Finally, the putative class does not qualify under any subsection of Rule

23(b). See Fed. R. Civ. P. 23(b). Plaintiffs assert that the class qualifies under either

Rule 23(b)(1) or (b)(2). (Dkt. 279:26.) Neither proposition is correct.

Plaintiffs cannot meet the standard for a mandatory class action under Rule

23(b)(1), which requires that individual—as opposed to class—treatment would risk

the establishment of inconsistent conduct for the defendants, or when individual

cases would, as a practical matter, be dispositive of the claims of nonparties. Fed. R.

Civ. P. 23(b)(1)(A), (B); see Spano v. The Boeing Co., 633 F.3d 574, 577 (7th Cir.

2011). Here, the class does not pose these risks because it is so vaguely defined, and

its likely membership’s circumstances are so diverse, that individual treatment

would be superior to class treatment.



- 30 -

To satisfy Rule 23(b)(2), Plaintiffs must demonstrate that “interests of the

class members are cohesive and homogeneous such that the case will not . . . require

a remedy that differentiates materially among class members.” Lemon v. Int’l

Union of Operating Eng’rs, Local No. 139, AFL-CIO, 216 F.3d 577, 580 (7th Cir.

2000). But due to the class’s vague definition, members will face wildly different

circumstances in obtaining qualifying ID. The interests of the putative class are not

cohesive and homogenous—they are varied and disparate.

CONCLUSION

This claim is moot as to the existing Plaintiffs, and the new Plaintiffs have

no standing. Plaintiffs are not entitled to a preliminary injunction, their remedy is

impermissible, and they have not identified a valid class. Defendants respectfully

request that Plaintiffs’ motion for a preliminary injunction, request for class

certification, and request for leave to file supplemental pleadings be DENIED.

Dated this 29th day of June, 2016.

Respectfully submitted, BRAD D. SCHIMEL Wisconsin Attorney General /s/S. Michael Murphy S. MICHAEL MURPHY Assistant Attorney General State Bar #1078149

CLAYTON P. KAWSKI Assistant Attorney General State Bar #1066228



- 31 -

GABE JOHNSON-KARP Assistant Attorney General State Bar #1084731 JODY J. SCHMELZER Assistant Attorney General State Bar #1027796 Attorneys for Defendants Wisconsin Department of Justice Post Office Box 7857 Madison, Wisconsin 53707-7857 (608) 266-5457 (Murphy) (608) 266-7477 (Kawski) (608) 267-8904 (Johnson-Karp) (608) 266-3094 (Schmelzer) (608) 267-2223 (Fax) [email protected] [email protected] [email protected]

[email protected]



STATE OF WISCONSIN DEPARTMENT OF JUSTICE BRAD D. SCHIMEL ATTORNEY GENERAL Andrew C. Cook Deputy Attorney General

17 W. Main Street P.O. Box 7857 Madison, WI 53707-7857 www.doj.state.wi.us S. Michael Murphy Assistant Attorney General [email protected] 608/266-5457 FAX 608/267-2223

June 6, 2016 VIA ECF The Honorable Lynn Adelman 362 United States District Courthouse 517 East Wisconsin Avenue Milwaukee, WI 53202

Re: Frank, et al. v. Walker, et al., Case No. 11-cv-1128 Status Conference on June 7, 2016

Dear Judge Adelman:

At the June 7, 2016 status conference, we would like to address three issues: (1) the status of the One Wisconsin0F

1 case in the Western District, and Defendants’ request that proceedings in this case be stayed pending a ruling in One Wisconsin; (2) if no stay is issued, the need for discovery on facts relevant to class certification and further briefing on the pending class certification motion; and (3) a schedule for discovery on the merits if class certification is granted, consistent with the Seventh Circuit’s instruction that “[t]he district court should permit the parties to explore how the state's system works today before taking up plaintiffs’ remaining substantive contentions.” Frank v. Walker, 2016 WL 1426486, at *4 (7th Cir. Apr. 12, 2016).

As you know, the One Wisconsin case pending in the Western District involves claims of barriers to obtaining photo identification, allegations that are identical to those made by Plaintiffs in this case. Indeed, the plaintiffs here have asked to prosecute this case based on discovery from One Wisconsin. The One Wisconsin trial is now complete, and a ruling is expected by the end of July. In light of that timeline, and the essentially complete overlap of facts and legal issues, it makes sense to hold in abeyance further proceedings in this case pending a decision in One Wisconsin.

1 One Wisconsin Institute, Inc. et al. v. Nichol et al., 15-CV-324 (W.D. Wis.).



The Honorable Lynn Adelman June 6, 2016 Page 2 In the absence of a stay, this Court should permit Defendants to take discovery of class representatives and then schedule briefing on Plaintiffs’ request for class certification prior to briefing on the merits of the case. Resolution of the class certification question is necessary to establish the scope of the remaining claims, and to defend those claims. Plaintiffs requested class certification, along with an injunction and judgment on remaining as-applied claims, on March 26, 2015.1F

2 (Dkt. 222.) Defendants opposed all the requested relief, and briefed the issue of class certification. (Dkt. 228:5–12.) The Court denied the request for class certification, in part because the Seventh Circuit barred further consideration of the class’s claims. (Dkt. 250:3, 20.) That decision was appealed, and the Seventh Circuit remanded in part. Frank, 2016 WL 1426486 at *4. The Seventh Circuit held that it did not previously rule on the circumstances of individuals who allege they are unable to get a photo ID. Id. at *2. The court discussed this issue in terms of three possible classes:

Plaintiffs want relief for three classes of persons: (1) eligible voters unable to obtain acceptable photo ID with reasonable expense and effort because of name mismatches or other errors in birth certificates or other necessary documents; (2) eligible voters who need a credential from some other agency (such as the Social Security Administration) that will not issue the credential unless Wisconsin's Department of Motor Vehicles first issues a photo ID, which the DMV won't do until the other credential has been obtained; (3) eligible voters who need a document that no longer exists (such as a birth certificate issued by an agency whose records have been lost in a fire).

Id. at *1. These potential classes are not currently certified. Defendants do not believe that Plaintiffs can meet Rule 23 requirements. Before proceedings can meaningfully continue, we respectfully submit that the Court should permit discovery on class certification, enter a briefing schedule, and then enter an order either certifying or

2 This was the second request for class certification. Plaintiffs first requested class certification on April 23, 2012. (Dkt. 63.) While that request was pending, a ten-day trial was held in November, 2013. (Dkt. 165, 166–71.) This Court ordered a permanent injunction, and denied the class certification request as moot because “all members of the proposed classes will benefit from the permanent injunction whether or not classes are certified.” (Dkt. 195:69.)



The Honorable Lynn Adelman June 6, 2016 Page 3 denying class certification.2F

3 If Plaintiffs cannot meet Rule 23, this case will stop there. Alternatively, classes and class representatives, need to be defined in order to defend this case and to tailor any relief that the Court may grant.

If a class were to be certified, then additional discovery on the merits will be necessary. First, the applicable law has changed since previous discovery in this case, and new administrative rules bear directly on this controversy. Wis. EmR1618.3F

4 DOT now issues photo receipts to persons applying for an ID card. Id. at § 10. This receipt is a photo ID that is valid for voting, and it may be submitted to other jurisdictions in support of a request for identity documents. The rule also clarifies the circumstances where a person can get an ID despite not having certain documents. Id. at § 8. Defendants must have an opportunity to discover how this new law affects representatives of any certified class in order to defend the case. Second, four years have passed since the trial, and the circumstances of any potential class representative may have changed. Some may have IDs now, and some may have voted in elections where the challenged laws were in effect. Indeed, Defendants have reason to believe that the lead Plaintiff in this case voted in February and April 2016. Defendants need an opportunity to make inquiries into facts such as these, which could be critical to the outcome of the case. Thank you for taking the time to discuss these issues with the parties at the upcoming conference. Sincerely, /s/S. Michael Murphy S. Michael Murphy Assistant Attorney General State Bar #1078149 SMM:mlk 3 Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012) (“On issues affecting class certification . . . a court may not simply assume the truth of the matters as asserted by the plaintiff. If there are material factual disputes, the court must ‘receive evidence ... and resolve the disputes before deciding whether to certify the class.’”) (quoting Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 676 (7th Cir. 2001)). 4 Available at: https://docs.legis.wisconsin.gov/code/register/2016/725A3/register/emr/emr1618_rule_text/emr1618_rule_text (Last visited on June 6, 2016.)






RUTHELLE FRANK, et al.,

Plaintiffs,

v. Case No. 11-CV-1128 SCOTT WALKER, et al.,

Defendants. MOTION TO STAY PRELIMINARY INJUNCTION PENDING APPEAL

Defendants respectfully move the Court for an order staying the

preliminary injunction that it entered on July 19, 2016, while this case is on

appeal. The affidavit remedy imposed by the injunction is unnecessary,

overbroad, and constitutes improper judicial legislation. The remedy, and the

analysis used to reach it, is likely to be overturned on appeal. Requiring

Defendants to comply with the injunction pending appeal would be expensive

and burdensome. It would also be contrary to public policy, and—as this

Court noted— risks causing voter confusion. (Dkt. 294:38.) The Court should

grant this motion and stay its preliminary injunction pending appeal.



2

LEGAL STANDARD

Federal Rule of Civil Procedure 62(c) states: “While an appeal is

pending from an interlocutory order or final judgment that grants, dissolves,

or denies an injunction, the court may suspend, modify, restore, or grant an

injunction on terms for bond or other terms that secure the opposing party’s

rights.” Federal Rule of Appellate Procedure 8(a)(1) states:

“A party must ordinarily move first in the district court for the following

relief: (A) a stay of the judgment or order of the district court pending

appeal[.]”

The Seventh Circuit has stated the standard for granting a stay

pending appeal:

The standard for granting a stay pending appeal mirrors that for granting a preliminary injunction. In re Forty-Eight Insulations, Inc., 115 F.3d 1294, 1300 (7th Cir.1997). . . . To determine whether to grant a stay, we consider the moving party’s likelihood of success on the merits, the irreparable harm that will result to each side if the stay is either granted or denied in error, and whether the public interest favors one side or the other. See Cavel Int’l, Inc. v. Madigan, 500 F.3d 544, 547-48 (7th Cir.2007); Sofinet v. INS, 188 F.3d 703, 706 (7th Cir.1999); In re Forty-Eight Insulations, 115 F.3d at 1300. As with a motion for a preliminary injunction, a “sliding scale” approach applies; the greater the moving party’s likelihood of success on the merits, the less heavily the balance of harms must weigh in its favor, and vice versa. Cavel, 500 F.3d at 547-48; Sofinet, 188 F.3d at 707.

In re A & F Enters., Inc. II, 742 F.3d 763, 766 (7th Cir. 2014).



3

ARGUMENT

Defendants are likely to prevail on the merits on appeal because of

numerous legal errors by the Court. The balance of harms tips in Defendants’

favor because the cost, voter confusion, and likely abuse that will result from

the Court’s order; public policy also favors imposing a stay to maintain

election continuity. The Court should stay its injunction pending appeal.

I. Defendants are likely to prevail on appeal because this Court imposed an improper remedy and made legal and factual errors.

The affidavit exception imposed by this Court is an improper,

overbroad remedy. And the analysis used to reach that improper result was

based on stale facts, old law, a misunderstanding of the nature of potential

harms, and misapplication of standing principles to the current and proposed

Plaintiffs.

A. Any voter who takes reasonable efforts will have an ID, so there is no harm that needs to be enjoined.

A showing of irreparable harm is a prerequisite to a preliminary

injunction. BBL, Inc. v. City of Angola, 809 F.3d 317, 323–24 (7th Cir. 2015).

And it is settled law that “the inconvenience of making a trip to the [D]MV,

gathering the required documents, and posing for a photograph” is not an

unreasonable burden on the right to vote. Crawford, 553 U.S. at 198. So the

plaintiffs’ burden was to show that they cannot get an ID by taking these

reasonable efforts.



4

Under current law, anyone who goes to a Wisconsin DMV office and

applies for a free state ID gets either an ID card or photo receipt that is valid

for voting within six days. (Dkt. 287, Boardman Decl. ¶ 40.) Photo receipts

are automatically renewed and valid for a minimum of 180 days, so that

anyone who has received a receipt since the inception of the receipt process

will possess qualifying ID through the November 2016 election.

(Dkt. 287 ¶ 41); Wis. EmR1618, § 10. Renewals extend past 180 days unless

there is fraud, cancellation, or when an applicant is ineligible or does not

respond to multiple DMV inquiries. (Dkt. 287, Boardman Decl. ¶ 41);

Wis. EmR1618, § 10.

So anyone who is eligible to vote, and is taking reasonable efforts to

cooperate with DMV, will have a valid voting receipt for as long as it take to

issue a permanent ID. And if that process is a severe burden for anyone, he or

she is exempt from the voter ID law. See Wis. Stat. § 6.86(2)(a) (exception for

indefinitely confined persons). This ensures that no person will be unable to

vote in November 2016, February 2017, or in any other election because of

lack of ID if they take reasonable efforts.

This Court summarily found that harm exists because “[t]hose who

cannot with reasonable effort obtain qualifying ID will be unable to vote in

any elections that occur between now and when their claims are finally

resolved.” (Dkt. 294:13.) The problem is that there is no one in that category,



5

and the record shows no current or Plaintiff in that situation. This Court

went even further, certifying a class and finding that Rule 23(a)’s numerosity

requirement has been met, even though there is no evidence of who, or how

many, may be in that class, if it even exists.0F

1 “[T]he party supporting a class

action has the burden of demonstrating the numerosity requirement of a

class action, and mere speculation as to the number of parties involved is not

sufficient to satisfy Rule 23(a)(1).” Roe v. Town of Highland, 909 F.2d 1097,

1100 n. 4 (7th Cir.1990) (quotation omitted). The plaintiffs have not met that

standard so the class-based injunction was improperly granted.

B. The affidavit remedy ordered by the Court is overbroad and improper judicial legislation.

The Court’s order requiring the Governor and members of the Elections

Commission to implement an affidavit “safety net” is impermissible and

likely to be overturned by the Seventh Circuit. Under the Court’s instruction,

“any reason the voter deems a reasonable impediment must be accepted.”

(Dkt. 294:37) (emphasis added). And election officials can “only make sure the

voter signs his name and either checks a box on the form or writes something

in the space for identifying other reasonable impediments.” (Dkt. 294:37)

1 The Court found that “the DMV has already denied IDs to more than 50 applicants who sought IDs under DMV’s current rules.” That is not true. The current rules were approved on May 10, 2016 and became effective on May 13, 2016. Wis. EmR1618; (see also Dkt 287, Boardman Decl. ¶ 39.) The record does not reflect 50 denials after that date.



6

(emphasis added). This order is contrary to the holdings of both Crawford and

Frank I.

Under Crawford, inconveniences such as “making a trip to the [D]MV,

gathering the required documents, and posing for a photograph” do not

qualify as a substantial burden on the right to vote. Crawford v. Marion Cty.

Election Bd., 553 U.S. 181, 198 (2008) (opinion of Stevens, J.). As the Seventh

Circuit acknowledged, “[t]hese observations hold for Wisconsin as well.”

Frank I, 768 F.3d at 746. Individuals not willing to “invest the necessary

time” to take advantage of processes available to them to obtain a qualifying

ID—processes that require them “to scrounge up a birth certificate and stand

in line at the office that issues drivers’ licenses”—are simply not

disenfranchised under the law. Id. at 748.

The affidavit procedure created by the Court thus creates a loophole in

the ID requirement even for reasons already held insufficient. For example,

under the Court’s ruling, an affidavit marked “other” and stating that the

voter “did not want to stand in line at the office that issues drivers’ licenses”

would be acceptable. This is overbroad under binding precedent.

The Court’s preliminary injunction also requires that “[n]o person may

challenge the sufficiency of the reason given by the voter for failing to obtain

ID,” and that these affiants receive a regular ballot. (Dkt. 294:43.) The lack of

any review process essentially abrogates both the voter ID law and the



7

elector challenge procedures provided under Wisconsin law. See Wis. Stat.

§ 6.92(1) (“each inspector shall challenge for cause any person offering to vote

. . . who does not adhere to any voting requirement under this chapter.”);

Wis. Stat. § 6.925 (“Any elector may challenge for cause any person offering

to vote whom the elector knows or suspects is not a qualified elector.”)

Even in states with a duly enacted affidavit provision, such as

North Carolina and South Carolina, affiants vote by a provisional ballot that

is subject to challenge. See N.C. Gen. Stat. § 163–166.13(c)(2); S.C. Code

§ 7-13-710(D)(1)(b). But the Court’s order here would allow anything written

on an affidavit to pass as a “reasonable impediment,” and it would go

unchecked. This results in de facto nullification of multiple state laws.

The State’s interests in requiring photo ID to vote include preventing

voter-impersonation fraud and promoting voter confidence—these interests

are sufficient to require voters to obtain a voter ID consistent with Crawford

and Frank I. This Court’s affidavit remedy completely ignores Crawford and

provides a remedy for anybody, without regard to the State’s interests, and

without regard to whether the voter actually experienced any impediment.

As such, it is unlikely to be upheld.

The remedy is also improper judicial legislation. This Court had it right

the first time, that “ordering such relief would be the functional equivalent of

enjoining the current law and replacing it with a new law drafted by me



8

rather than the state legislature.” Frank v. Walker, 17 F. Supp. 3d 837, 863

(E.D. Wis. 2014), reversed 768 F.3d 744 (7th Cir. 2014) (“Frank I”). The legal

principles underlying the Court’s prior holding are equally applicable now.

It is a fundamental principle that courts cannot rewrite or add

language to a statute to make it constitutional. See United States v. Nat’l

Treasury Emps. Union, 513 U.S. 454, 479 & n.26 (1995) (recognizing that

courts have an “obligation to avoid judicial legislation” and therefore

“refus[ing] to rewrite the statute” at issue in the case). See also Virginia v.

Am. Booksellers Ass’n, 484 U.S. 383, 397 (1988) (noting that “the statute

must be ‘readily susceptible’ to the limitation; we will not rewrite a state law

to conform it to constitutional requirements”); White House Vigil for ERA

Comm. v. Clark, 746 F.2d 1518, 1529 (D.C. Cir. 1984) (“[I]t is not the province

of the court to ‘finetune’ the regulations so as to institute the single

regulatory option the court personally considers most desirable. Courts

possess no particular expertise in the drafting of regulatory measures; their

role is to uphold regulations which are constitutional and to strike down

those which are not.”).

The Court’s decision completely ignores this weighty line of precedent.

(See Dkt. 294:36.) Instead, it readily acknowledges that it must “create a

safety net” that “is not ideal.” (Dkt. 294:36) (emphasis added). Nothing in its



9

decision addresses the Supreme Court’s clear directives to avoid this type of

intrusion into the legislative sphere.

C. The Court considered stale facts and old law, contrary to the Seventh Circuit’s instructions on remand.

This Court focused on evidence submitted by Plaintiffs about DMV’s ID

Petition Process (IDPP). (Dkt. 294:22–23). None of the evidence cited involves

ID issuances under current law. Instead, the Court made its decision on

out-of-date anecdotes, contrary to the Seventh Circuit’s instructions to

explore how the current process works. Frank v. Walker, 819 F.3d 384, 388

(7th Cir. 2016) (“Frank II”).

For example, the Court relied on an anecdote involving an IDPP

application that was denied in June 2015 because of documentation and fee

issues. (Dkt. 294:23 (citing Young Decl., Ex. 59).) That entire process took

place before the current law was in effect. Under current, applicable law, if no

documents can be found, DMV will still issue an ID if it is more likely than

not that the applicant is presenting an accurate identity. Wis. EmR1618 § 8.

And during the time DMV is assisting in getting a free ID, the applicant has

an ID receipt that is valid for voting. Wis. EmR1618 § 10. Further, DMV pays

fees when that would advance an investigation. (Dkt. 287 ¶ 16.) The Court’s

observations about what happened under past law cannot support a finding

of an injunction against the current law.



10

The Court also relied on a situation where an applicant’s name was

spelled differently on his birth certificate than his social security card.

(Dkt. 294:24 (citing Young Decl., Ex. 42).) This again occurred entirely under

old law. Now, name mismatches or inconsistencies in identity documents do

not result in denial. Wis. EmR1618, §§ 1–3; (Dkt. 287, Boardman Decl. ¶ 37;

Dkt. 287-7, Ex. 1019.) DMV has an efficient and free affidavit process that

results in ID issuance.

The Court cited another situation where an IDPP petitioner was not

informed of DMV’s notarization process. (Dkt. 294:26 (citing Young Decl.,

Ex. 41).) This, too, occurred before the DMV notarization process was in place.

Likewise, the Court relied on a case of a name spelling discrepancy that

occurred before the name change affidavit became part of DMV’s standard

procedures. (Dkt. 294:26 (citing Young Decl., Ex. 42).) And to support the

proposition that voters will not be able to get a receipt in time for a

provisional ballot to be counted, the Court cited a situation from before the

receipt process started—indeed, before receipts were even issued.

(Dkt. 294:30 (citing Dkt. 280-15 ¶ 6).)

These, and several other anecdotal examples that the Court relied

upon, all have the same problem: they did not “permit the parties to explore

how the state’s system works today.” Frank II, 819 F.3d at 388. The Seventh



11

Circuit is unlikely to affirm the preliminary injunction when this Court did

not follow its remand instructions.

D. No Plaintiff has standing because none can show an undue burden on voting.

Standing requires an “invasion of a legally protected interest” that is

concrete and particularized, not conjectural or hypothetical. Lujan v. Defs. of

Wildlife, 504 U.S. 555, 560 (1992). The legally protected interest at issue in

this case is the ability to vote. After Crawford and Frank I, it is no longer

reasonably debatable that the act of showing an ID to get a ballot, or

“the inconvenience of making a trip to the [D]MV, gathering the required

documents, and posing for a photograph” is an unreasonable burden on the

right to vote. Crawford, 553 U.S. at 198.

This Court noted that two of the plaintiffs, Brown and Smith, already

have an ID. (Dkt. 294:5.) They have no injury because merely having to show

the ID that they already have is not redressable under Crawford and Frank I.

But this Court found standing on the conjectural and hypothetical possibility

that the law will change to no longer require an ID, which could confer

standing on parties who have an ID. (Dkt. 294:5) (finding standing because

“the plaintiffs intend to argue on appeal that Frank I was wrongly decided

and that Act 23 should be enjoined in its entirety.”) This would require that

the Seventh Circuit to make a complete reversal of its own decision from only



12

two years ago, and do so in the face of Crawford. That is unlikely, and the

standing decision should be stayed pending the Seventh Circuit’s decision on

appeal.

This Court also found that Ruthelle Frank has standing, even though

she has voted while the voter ID law was in effect. (Dkt. 294:6.) It made this

finding on an observation that Ms. Frank has voted absentee, but would

rather vote in person. (Id.) There is no evidence to support that finding.

The Court relied upon two pages of Ms. Frank’s 2012 deposition.

(Id. (citing Frank Dep. at 12–13, Dkt. 280:4).) That deposition discusses her

voting history, but says nothing about a preference to vote in person.

The Court found standing for the remaining Plaintiffs—Robertson,

Switlick, and Green—by reasoning that they should not be required to

re-apply for an ID after DMV changed its procedure. (Dkt. 294:6.) But the

entire point of this case it to examine whether the current DMV procedures

are appropriate. The Seventh Circuit instructed this Court to “permit the

parties to explore how the state’s system works today before taking up

plaintiffs’ remaining substantive contentions.” Frank II, 819 F.3d at 388.

This Court did the opposite by holding that Plaintiffs do not need to show

how the new law affects them before deciding if they have standing.

Finally, there is the matter of Mr. Switlick, who has prevented himself

from getting an ID by prohibiting the DMV from contacting him.



13

(Dkt. 288-6, Murphy Decl. Ex. 1006:221–22 (One Wisconsin Tr. 05-23-16

at 221–22).) If Mr. Switlick has any injury, it was self-imposed when he

asked DMV not to contact him. Mr. Switlick should not be permitted to

manufacture standing by preventing DMV from working with him to get an

ID.

II. The affidavit remedy will cause irreparable harm and is contrary to public policy.

The affidavit remedy crafted by the Court will also cause a temporary

change in elections administration, which will lead to confusion for both

elections administrators and voters. This will cause irreparable harm that is

contrary to public policy, necessitating a stay.

The Supreme Court has repeatedly instructed courts to carefully

consider the importance of preserving the status quo when it concerns

election administration. In Purcell v. Gonzalez, 549 U.S. 1 (2006), the

Supreme Court held that, “[f]aced with an application to enjoin operation of

voter identification procedures just weeks before an election, the Court of

Appeals was required to weigh, in addition to the harms attendant upon

issuance or non-issuance of an injunction, considerations specific to election

cases and its own institutional procedures.” Id. at 4. One of these

considerations is that “[c]ourt orders affecting elections, especially conflicting

orders, can themselves result in voter confusion and consequent incentive to



14

remain away from the polls. As an election draws closer, that risk will

increase.” Id. at 4–5.

The Supreme Court has further instructed that, “[i]n awarding or

withholding immediate relief, a court is entitled to and should consider the

proximity of a forthcoming election and the mechanics and complexities of

state election laws, and should act and rely upon general equitable

principles.” Reynolds v. Sims, 377 U.S. 533, 585 (1964) (emphasis added).

Accordingly, in certain circumstances when “a State’s election machinery is

already in progress,” equitable considerations might justify a court in

withholding preliminary relief. Id.

Certainly, these considerations factored into halting injunctions in

similar cases that would have altered state election laws in the months

preceding general elections. Frank v. Walker, 135 S. Ct. 7 (2014);

North Carolina v. League of Women Voters of N.C., 135 S. Ct. 6 (2014);

Husted v. Ohio State Conference of N.A.A.C.P., 135 S. Ct. 42 (2014).

Here, the Administrator of the State’s Elections Commission has stated

that the Court’s affidavit remedy will introduce extreme confusion into the

elections process. (Dkt. 286 ¶ 7.) There are 1,854 municipal clerks that would

be responsible for implementing the affidavit remedy. (Dkt. 286 ¶ 12.)

There would be substantial difficulty informing and training these clerks and

election inspectors in a timely manner about how to administer the affidavit



15

remedy in time for the November 2016 election. (Dkt. 286 ¶¶ 11–12.)

The municipal clerks are not parties to this action and not within the

jurisdiction of the Court—the Elections Commission has limited authority

over these municipal officers. (Dkt. 286 ¶¶ 13–14.) Changing the “State’s

election machinery” through orders which will be carried out by non-party

clerks poses too great of risk of inconsistent election administration and voter

confusion. See Sims, 377 U.S. at 585.

This clear harm to election administration must be balanced against

the lack of any harm to voters. Anyone who goes to a Wisconsin DMV office

and applies for a free state ID will get either an ID card or photo receipt that

is valid for voting. (Dkt. 287, Boardman Decl. ¶ 40.) The receipt and renewals

will be valid for a minim of 180 days, and renewals will only ever cease

because of fraud, ineligibly, cancellation, or lack of cooperation with DMV.

(Dkt. 287 ¶ 41); Wis. EmR1618, § 10. No voter who takes reasonable efforts

will be unable to vote because of lack of ID.

Furthermore, the Court’s preliminary injunction order also requires the

Elections Commission to “revise their publicity materials” and “train election

officials” to include the affidavit remedy. (Dkt. 294:38.) But the Commission

has already engaged in an advertising campaign targeted at the existing

voter ID law. (Dkt. 286 ¶¶ 32–33.) Advertising design work has already been

completed and the Commission does not have funds allocated for



16

modifications to these ads that are already completed. (Dkt. 286 ¶ 34.)

There is no funding for the affidavit remedy, and even if the funds could be

allocated, the State’s competitive bidding process to conduct an information

campaign requires between six weeks and two months to complete.

(Dkt. 286 ¶¶ 37–39.)

Given this, the Supreme Court’s instruction in Purcell is applicable.

The State’s voter ID law has been on the books since 2011, and was in place

for the April 2016 elections, where voters turned out in record numbers.

(Dkt. 288-8:28.) The affidavit remedy ordered here is in conflict with what

voters have been instructed and experienced since its implementation.

The fact that it is only a temporary “safety net” that could be altered

following an appeal or trial on the merits only exacerbates that likelihood of

inevitable voter confusion about both this remedy and the voter ID law in

general. Allowing the preliminary injunction to go forward would “result in

voter confusion and consequent incentive to remain away from the polls,”

which will increase “[a]s an election draws closer.” Purcell, 549 U.S. at 4–5.

The Court acknowledges this in its decision: “[v]oter confusion is of course a

risk.” (Dkt. 294:38.) Where an effective remedy is already in place to provide

voters an ID to vote (see section I(C), supra), this is not a risk that should be

taken.



17

The State will be also be irreparably harmed if the stay is not issued.

“[A]ny time a State is enjoined by a court from effectuating statutes enacted

by representatives of its people, it suffers a form of irreparable injury.”

New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977)

(Rehnquist, J., in chambers). If the Court’s affidavit remedy is ultimately

reversed, the State cannot run the election over again.

A stay of the Court’s injunction pending appeal would allow for the

orderly resolution of this dispute and allow the State to carry out the

statutory policy of the Legislature, which “is in itself a declaration of public

interest and policy which should be persuasive.” Virginian Ry. Co. v. Sys.

Fed’n No. 40, 300 U.S. 515, 552 (1937); Ill. Bell Tel. Co. v. WorldCom Techs.,

Inc., 157 F.3d 500, 503 (7th Cir. 1998) (“[T]he court must consider that all

judicial interference with a public program has the cost of diminishing the

scope of democratic governance.”). This is especially true for the voter ID law,

which is already in place and which the State has used successfully in its

February and April 2016 elections.



18

CONCLUSION

For the reasons argued in this motion, the Court should stay its

preliminary injunction pending appeal.

Dated this 22nd day of July, 2016.

Respectfully submitted, BRAD D. SCHIMEL Wisconsin Attorney General /s/S. Michael Murphy S. MICHAEL MURPHY Assistant Attorney General State Bar #1078149

CLAYTON P. KAWSKI Assistant Attorney General State Bar #1066228 GABE JOHNSON-KARP Assistant Attorney General State Bar #1084731 JODY J. SCHMELZER Assistant Attorney General State Bar #1027796 Attorneys for Defendants Wisconsin Department of Justice Post Office Box 7857 Madison, Wisconsin 53707-7857 (608) 266-5457 (Murphy) (608) 266-7477 (Kawski) (608) 267-8904 (Johnson-Karp) (608) 266-3094 (Schmelzer) (608) 267-2223 (Fax) [email protected] [email protected] [email protected]

[email protected]





Plaintiffs,

v. Case No. 11-C-1128 SCOTT WALKER, ET AL.,

Defendants.

DECLARATION OF MICHAEL HAAS

I, Michael Haas, pursuant to 28 U.S.C. § 1746, hereby declare as

follows:

1. I am currently the Elections Division Administrator at the

Wisconsin Government Accountability Board (GAB).1 I make this declaration

based upon my personal knowledge and in support of Defendants’

memorandum in opposition to Plaintiffs’ motion for a preliminary injunction.

2. I have been employed by GAB since October of 2008. I was

appointed to my current position in January 2013, before which I was a staff

1 On June 30, 2016, GAB will cease to exist and will be replaced by the Elections and Ethics Commissions. Following the transition, I will serve as the Administrator of the Elections Commission. For purposes of this declaration, all references to the responsibilities and authority of GAB will apply to the Elections Commission after June 30.



- 2 -

counsel with GAB. As Elections Division Administrator, I manage agency

staff responsible for administering and enforcing Wisconsin’s election laws. In

both positions during my employment with GAB, I have been involved in

many issues and initiatives related to voter qualifications, voter registration,

the voting process, and agency efforts to inform and educate election officials

and the public.

3. It is my understanding that the Plaintiffs’ motion for a

preliminary injunction asks this Court to create an exception to the

requirement that voters present a valid ID to vote. The Plaintiffs’ proposed

exception would allow voters to submit an affidavit at the polls, or with their

absentee ballot, stating that they are unable to comply with the voter ID

requirements due to a “reasonable impediment.”

4. The affidavit exception that Plaintiffs request could pose election

administration problems for the fall elections, some logistical and some legal

and policy-based.

5. For example, without a substantial body of administrative rules

setting forth the required policies and procedures governing the proposed

affidavit exception process, it would be extremely difficult to implement such

a requirement successfully on a statewide basis.

6. Unless this Court were to “promulgate” an entire chapter of

administrative rules relating to the administration of affidavits for voting,



- 3 -

the responsibility for promulgating such rules would rest with the GAB under

Wis. Stat. § 5.05(1)(f).

7. Without such rules, the affidavit exception could introduce

extreme confusion into the elections process: Although GAB could provide

implementation guidance on the affidavit exception to election administrators

without administrative rules in place, any such guidance would not have the

force of law, leaving election administrators without any binding standards.

Moreover, given the timeframe, reaching all election administrators and

informing them about how to handle various aspects of the affidavit

procedure could be challenging; and voters could be faced with potentially

conflicting information about the applicability of the voter ID law given the

actual language of the law and any GAB guidance issued.

8. Even assuming that any rules about the affidavit exception could

be promulgated relatively quickly as emergency administrative rules, GAB

could not reasonably expect to craft rules that could be in place for any part

of the August 9, 2016, partisan primary election.

9. As a practical matter, the August election has already begun,

since municipal clerks were able to begin sending out absentee ballots for

that election beginning on June 10, 2016.

10. All absentee ballots for the August 9 election must be sent out to

those individuals with valid requests on file by June 23.



- 4 -

11. Even putting aside the question of promulgating rules necessary

to effectively implement an affidavit exception, there would be substantial

difficulty informing and training local clerks and election inspectors in a

timely manner about how to administer the new procedures relating to

affidavits.

12. It would be practically impossible to properly inform and train

the 1,854 municipal clerks and their staffs about an affidavit exception in

time for the August election, and it would be a significant strain on GAB

resources to complete such a task in time for the November election.

13. Moreover, I do not know of existing legal authority that would

permit GAB to require clerks to make an affidavit available at the polls.

14. It is my understanding that no municipal clerks have been

named as defendants in this lawsuit.

15. In addition to the question relating to clerks, it is questionable

whether GAB has legal authority to promulgate a rule that would excuse a

voter from presenting a valid ID to vote, beyond those exceptions already

provided by Wisconsin law. Wisconsin Stat. § 227.10(2) states that “[n]o

agency may promulgate a rule which conflicts with state law.”

16. Because the Wisconsin statutes governing voter identification do

not provide any exception that would allow voters to submit an affidavit



- 5 -

based on a “reasonable impediment” to obtaining an ID for voting, any rules

to that effect would directly contravene Wisconsin law.

17. Wisconsin administrative agencies like GAB cannot promulgate

rules that exceed the authority the Legislature has vested in the agency.

18. It is my understanding that Wisconsin voters who face difficulties

obtaining an ID are now able to submit a sworn application to the Wisconsin

Department of Transportation, after which the ID applicant receives a photo

receipt that is valid for voting in Wisconsin.

19. Because these photo receipts have always been an acceptable

form of ID for voting, there is virtually no administrative difficulty for local

election officials relating to the Division of Motor Vehicles’ (DMV) increased

issuance of photo receipts.

20. The procedures in place governing photo receipts pose far less of

an administrative burden on GAB and raise far fewer legal and policy

concerns than the affidavit exception proposed by Plaintiffs.

21. It is my understanding that the Plaintiffs also ask this Court to

order that GAB “be required to mail individualized notice of the voter ID law

and affidavit option to any registered voter who does not appear as having

accepted photo ID in the DMV database.” (Dkt. 279:23 (emphasis added).)



- 6 -

22. This request ignores the fact that, for voting purposes, Wisconsin

law allows seven other forms of ID that are not issued by the DMV and which

would not appear in any DMV database.

23. Information about whether an individual possesses a

DMV-issued ID is therefore not determinative of whether the individual

possesses an ID that is valid for voting in Wisconsin.

24. There is no centralized list of Wisconsin voters who lack all forms

of ID acceptable for voting.

25. For GAB to determine the universe of registered voters who lack

a DMV-issued ID and then send out the proposed mailing would impose

financial and time burdens on GAB, and would require the completion of a

matching process with the DMV database, to which GAB does not have direct

access.

26. And, conducting a matching process between the DMV’s database

of product holders and the GAB’s database of registered voters would very

likely result in false negatives—registered voters who show up as not having

an ID when they in fact do possess a valid DMV product.

27. One fairly common reason why such a no-match might occur is

that many voters were added to the statewide voter registration system

without having to provide a driver license number. If such a voter never

moved or reregistered, she never would have been required to provide her



- 7 -

driver license information, even though she very well might possess a valid

DMV product.

28. Sending voters who do possess a valid ID information about an

exception to the voter ID law creates a significant and unjustified risk of

confusion about the applicability of the voter ID law, and would be an

inefficient use of scarce resources.

29. The risk of confusion would be particularly acute where a single

advertisement or mailing includes potentially conflicting messages such as

“ID is required for voting” and “an affidavit might excuse you from the ID

requirement.”

30. Significant resources have been expended in the effort to inform

voters about the ID requirement, as well as working with various advocacy

groups to assist voters in obtaining ID to vote.

31. For example, the Legislature recently approved a $250,000

supplemental budget request submitted by GAB to support public

information efforts regarding the voter ID requirement.

32. These funds will be allocated in part to buy airtime to broadcast

information about the applicability of the voter ID law and how voters can

obtain a valid ID for voting.

33. The airtime purchases will likely be completed very soon and

certainly well ahead of the November election, for the dual reasons that



- 8 -

voters will have more time to obtain valid IDs for voting, and that airtime

will become prohibitively expensive closer to the election.

34. The advertising design work has already been completed for the

voter ID information campaign, and the funding request did not allocate

funds for modifications to the already completed ad designs.

35. Because the $250,000 in supplemental funding will soon be

entirely allocated, any funding for outreach about an affidavit exception

would have to come from some other source.

36. Additionally, the risk of voter confusion from mixed messages

about the applicability of the ID requirement and the affidavit exception

suggests that a more effective approach would be to separate the two

information campaigns.

37. Currently, GAB does not have any plans to conduct a separate

public information campaign or direct mailing about the affidavit exception,

and has no funds allocated for that purpose.

38. Even putting aside the lack of funding for such an information

campaign, Wisconsin law requires that any significant agency expenditures

such as direct mailings go through a competitive bidding process.

39. The bidding process typically requires between six weeks and two

months to complete.



- 9 -

40. Thus, even assuming this Court were to order the relief that

Plaintiffs request, including a direct mailing effort to specified voters; and

even assuming that GAB had funding for such an effort, any mailings could

not conceivably be sent out before mid-August without running afoul of

Wisconsin’s competitive bidding laws.

41. It would therefore be virtually impossible to implement the relief

that Plaintiffs seek before the August election.

42. Putting aside the legal and other administrative concerns

discussed previously, implementing the Plaintiffs’ sought-after relief before

the November election might be possible, but doing so would pose significant

administrative difficulties, and would require elections administrators to

divert scant resources from existing needs, not the least of which is

continuing to inform the public about the applicability of the voter ID law.

43. I have reviewed the WisVote database, which includes voting

histories for all registered voters in Wisconsin, and have found that the

records for the following plaintiffs in this case contain notations indicating

that they voted in at least one election in which the voter ID law was in

effect:

• Ruthelle Frank

• Melvin Robertson

• Nancy Lea Wilde



- 10 -

• Edward Hogan

• Max Kligman

• Barbara Oden

44. After the election in November 2016, the next statewide election

will be held on February 21, 2017.

Pursuant to 28 U.S.C. § 1746. I declare under penalty of perjury that

the foregoing is true and correct.

Dated this 27th day of June, 2016.

/s/Michael Haas MICHAEL HAAS



1

DECLARATION OF JAMES GREEN

I, James Green, pursuant to 28 U.S.C. § 1746, hereby declare as follows:

1. I make this Declaration on my own personal knowledge.

2. I am a citizen of the United States of America and am 18 years of age of older. I

am also a resident of the state of Wisconsin.

3. I want to vote in Wisconsin.

4. I am not serving a term of incarceration, parole, or probation for a felony

conviction. My right to vote has not been taken away by court order.

5. I do not have a form of photo ID acceptable for voting.

6. I was born in Illinois. I do not have my birth certificate. I do not have my Social

Security card. I have a BadgerCare Card, a food stamp card, and a library card. I am homeless.

7. I believe that people in my circumstances should be able to vote in Wisconsin

without having to show photo ID.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on May 3, 2016 (Date) s/ James Green [Name]

Case 2:11-cv-01128-LA Filed 06/10/16 Page 1 of 1 Document 280-7


Case: 3:15-cv-00324-jdp Document #: 194 Filed: 05/24/16 Page 1 of 1



550



----------------------------------------------------------------RUTHELLE FRANK, et al., on behalf ofthemselves and all others similarlysituated,

Plaintiffs,

vs.

SCOTT WALKER, in his official capacityas Governor of the State of Wisconsin,et al.,

Defendants.

--------------------------------------

LEAGUE OF UNITED LATIN AMERICANCITIZENS (LULAC) OF WISCONSIN, et al.,

Plaintiffs,

vs.

DAVID G. DEININGER, et al.,

Defendants.

))))))))))))))))))))))))))

Case No. 11-CV-1128

Milwaukee, WisconsinNovember 6, 2013

Case No. 12-CV-185

----------------------------------------------------------------

TRANSCRIPT OF COURT TRIAL - VOLUME 3BEFORE THE HONORABLE LYNN ADELMANUNITED STATES DISTRICT JUDGE

U.S. Official Reporter:Transcript Orders:

JOHN T. SCHINDHELM, RMR, CRR,WWW.JOHNSCHINDHELM.COM

Proceedings recorded by computerized stenography,transcript produced by computer aided transcription.


551

APPEARANCES - 11-CV-1128:

For the Plaintiffs: Craig G FallsDechert LLP1900 K St NWWashington, DC 20006202-261-3373Fax: 202-261-3373Email: [email protected]

Karyn L RotkerAmerican Civil Liberties Unionof WI Foundation Inc207 E Buffalo St - Ste 325Milwaukee, WI 53202414-272-4032Fax: 414-272-0182Email: [email protected]

Neil A SteinerDechert LLP1095 Avenue of the AmericasNew York, NY 10036212-698-3822Fax: 212-698-0480Email: [email protected]

Angela M LiuDechert LLP77 W Wacker Dr - Ste 3200Chicago, IL 60601312-646-5800Fax: 312-646-5858Email: [email protected]

Dale E HoAmerican Civil Liberties UnionFoundation Inc125 Broad StNew York, NY 10004212-549-2693Fax: 212-549-2651Email: [email protected]


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For the Defendants:

Diane N PrincDechert LLP1095 Avenue of the AmericasNew York, NY 10036212-649-8743Fax: 212-698-3599Email: [email protected]

Sean J YoungAmerican Civil Liberties UnionFoundation Inc125 Broad St - 18th FlNew York, NY 10004212-284-7359Fax: 212-549-2651Email: [email protected]

Laurence J DupuisAmerican Civil Liberties Unionof WI Foundation Inc207 E Buffalo St - Ste 325Milwaukee, WI 53202414-272-4032Fax: 414-272-0182Email: [email protected]

Maria S LazarWisconsin Department of JusticeOffice of the Attorney General17 W Main StPO Box 7857Madison, WI 53707-7857608-267-3519Fax: 608-267-2223Email: [email protected]

Clayton P KawskiUnited States Department ofJustice (ED-WI)17 W Main StMadison, WI 53703608-266-7477Fax: 608-267-2223Email: [email protected]


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Daniel P LenningtonWisconsin Department of JusticeOffice of the Attorney General17 W Main StPO Box 7857Madison, WI 53707-7857608-267-8901Fax: 608-267-8906Email:[email protected]


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APPEARANCES - 12-CV-185:

For the Plaintiffs: Carl S NadlerArnold & Porter LLP555 12th St NWWashington, DC 20004-1206202-639-6130Fax: 202-942-5999Email: [email protected]

John C UlinArnold & Porter LLP777 S Figueroa St - 44th FlLos Angeles, CA 90017213-243-4000Fax: 213-243-4199Email: [email protected]

Daniel OstrowArnold & Porter LLP399 Park AveNew York, NY 10022-4690212-715-1000Fax: 212-715-1399Email: [email protected]

Ethan J CorsonArnold & Porter LLP555 12th St NWWashington, DC 20004-1206202-942-5000Fax: 202-942-5999Email: [email protected]

Marco J MartemucciArnold & Porter LLP777 S Figueroa St - 44th FlLos Angeles, CA 90017-5844213-243-4259Fax: [email protected]

James A EichnerAdvancement Project1220 L St NW - Ste 850Washington, DC 20005202-728-9557Fax: 202-728-9558Email:[email protected]


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Leigh M ChapmanAdvancement Project1220 L St NW - Ste 850Washington, DC 20005202-728-9557Fax: [email protected]

For the PlaintiffsCross Lutheran Churchand Wisconsin League ofYoung Voters EducationFund:

For the DefendantsDavid G Deininger, MichaelBrennan, Gerald Nichol,Thomas Barland, ThomasCane, Kevin Kennedy,Nathaniel Robinson:

Nathan D FosterArnold & Porter LLP370 17th St - Ste 4400Denver, CO 80202-1370303-863-1000Fax: 303-832-0428Email: [email protected]

Charles G Curtis JrArnold & Porter LLP16 N Carroll St - Ste 620Madison, WI 53703608-257-1922Email: [email protected]

Carl S NadlerJohn C UlinDaniel OstrowEthan J CorsonJames A EichnerLeigh M ChapmanNathan D FosterSara K JacksonCharles G Curtis Jr(See above for address)

Maria S LazarWisconsin Department of JusticeOffice of the Attorney General17 W Main StPO Box 7857Madison, WI 53707-7857608-267-3519Fax: 608-267-2223Email: [email protected]


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Clayton P KawskiUnited States Department ofJustice (ED-WI)17 W Main StMadison, WI 53703608-266-7477Fax: 608-267-2223Email: [email protected]

Daniel P LenningtonWisconsin Department of JusticeOffice of the Attorney General17 W Main StPO Box 7857Madison, WI 53707-7857608-267-8901Fax: [email protected]


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Court Trial - Vol 3 - 11/6/2013

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P R O C E E D I N G S (10:24 a.m.)

THE COURT: Sorry. Okay. Who is up?

MR. STEINER: The plaintiffs call Carl Ellis.

CARL ELLIS, PLAINTIFF WITNESS, DULY SWORN

THE COURT: Have a seat. State your name for the

record. Spell your name and talk real close to the microphone.

THE WITNESS: Yes, sir. My name is Carl Ellis,

C-A-R-L, E-L-L-I-S.

DIRECT EXAMINATION

BY MR. YOUNG:

Q. Good morning, my name is Sean Young and I'm one of the

counsel who represents plaintiffs in this case. What is your

name?

A. Carl Ellis.

Q. What is your age?

A. 54.

Q. And what is your race?

A. I'm a mulatto.

Q. What do you mean by that?

A. I'm half white and half black.

Q. Are you currently on probation or parole for a felony?

A. I'm not.

Q. Where were you born?

A. Freeport, Illinois.

Q. At some point did you join the army?


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A. I did.

Q. How old were you when you joined around?

A. 18.

Q. How long did you serve?

A. 2 years.

Q. And how did you leave the army?

A. Honorably discharged.

Q. After you left the army did you at some point get a veterans

ID?

A. I did.

Q. Do you remember how you got it?

A. I went through the VA.

Q. And on your VA card is there a photo of you?

A. There is.

Q. Is there a name?

A. Yes, sir.

Q. And generally what do you use the VA card for?

A. Health issues, obtaining documents pertaining to my wartime.

Q. And did you eventually come to Wisconsin?

A. I did.

Q. Do you remember around when?

A. 2007.

Q. And was there a time when you became homeless?

A. There was.

Q. Just real briefly how did that happen?


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A. I'm an alcoholic.

Q. Any other issues?

A. Severe depression, a trust issue.

Q. And with respect to the alcoholism, how are you doing today?

A. I have about nine, almost 10 months clean.

Q. And where are you staying right now?

A. I'm staying in transitional housing.

Q. Are you in some kind of a work program?

A. I am.

Q. How much do you make?

A. I make 7.25 an hour. I work 12 hours a week. It's like a

school/training.

Q. When did that training start, if you remember?

A. Almost eight weeks ago. It's an eight week program, it will

end this Friday.

Q. And before you started the work program were you employed?

A. I wasn't.

Q. At some point did you apply for a VA disability benefits?

A. It's pending now.

Q. Do you remember around when you applied for it?

A. It's been about two, maybe 3 years. I've been denied once

and filed an appeal. It's supposed to be going to Congress.

Q. And do you have a disability?

A. I do.

Q. And, generally speaking, what is it?


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A. My depression, severe depression. I'm bipolar. I have

trust issues.

Q. Do you have any physical disabilities?

A. I have a metal plate in my ankle. I was hit by a

hit-and-run, 2 years ago, November 2nd.

Q. Do you want to vote?

A. I do.

Q. Why?

A. Well, this time in my life now I've never really took life

serious. I've never really voted because I have a trust issue,

I believe all the candidates ain't what they say they're about.

Q. And at some point did you hear about a voter ID law?

A. I did.

Q. And what was your understanding of what that law was?

A. I wouldn't have to pay for an ID being homeless. I went

through the Salvation Army on Wells, the homeless program.

Q. And?

A. I'm sorry.

Q. That's okay. Specifically under the voter ID law do you

know if you could vote with your veterans ID?

A. I tried. It wasn't working.

Q. Did you ever have a Wisconsin driver's license?

A. I have not.

Q. Now, have you ever driven a car in Wisconsin before?

A. I have.


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Q. Was that with or without a license?

A. That was without.

Q. And why were you driving without a license?

A. I'm not quite sure. It had something to do with my

alcoholism.

Q. So this was during the time when you had issues with

alcohol?

A. Yes, sir.

Q. Were you caught?

A. I was.

Q. Did you ever have a U.S. passport?

A. No, sir.

Q. Are you currently in the military?

A. No, sir.

Q. Do you have a tribal ID card?

A. I do not.

Q. I'm going to talk a little bit about your attempts to get an

ID. Was there a time in which you attempted to get an ID so

that you could vote?

A. Three times.

Q. Let's talk about the first time. Where did you first go

when you tried to get an ID?

A. I was staying at the homeless shelter on Wells Street.

Voting issue came up and I was told that all I needed was an ID

and I could -- I wouldn't have to pay for a Wisconsin ID to


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vote.

Q. At some point did you go to the DMV?

A. I did.

Q. Which DMV was that?

A. The one off of Wells and 6th.

Q. How did you get to the DMV?

A. I walked.

Q. Do you remember how long it took to walk there?

A. About 40 minutes.

Q. 40 minutes one way?

A. Yes, sir.

Q. And when you went to the DMV do you remember what documents

you brought?

A. I just had a military ID, a letter from the homeless shelter

stating my residence, it had my Social Security number on it,

papers like that.

Q. When you say military ID are you referring to your veterans

ID?

A. Yes, sir, the one that I'm wearing.

Q. And just to be clear you are not currently in the military.

A. No, sir.

Q. And when you went to the DMV with these documents what did

they tell you?

A. They wasn't enough, I had to have a Wisconsin ID.

Q. Did they tell you how to get a Wisconsin ID?


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A. I would need to send off for a birth certificate. I would

need to get the original Social Security card. And I would need

more proof of address.

Q. And did you try to get a birth certificate from Illinois?

A. Not at first.

Q. Why not?

A. I didn't have any money, I was homeless, I was dealing with

alcoholism.

Q. What was your understanding of how much a Illinois birth

certificate would cost?

A. $15.

Q. Did you have $15?

A. I didn't.

Q. So how much money were you taking in during that time?

A. I wasn't taking any in.

Q. So did you try to get help from others to get a Illinois

birth certificate?

A. I did. At the time I moved to Vet Place Central which is

also on Wells. I informed them that I would like to vote and

get some type of ID other than my military ID. They basically

told me the same thing that the homeless shelter on Wells told

me, they typed up a letter for me with indicating my residence,

I had my military ID, and my Social Security number, but that

wasn't enough again.

Q. And again when you refer to your military ID do you mean


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your veterans card?

A. My veterans card, I'm sorry.

Q. That's okay. Did you ever go to any other churches or

agencies to try to get your birth certificate?

A. There's a church right across from the police station on

Wells. I forget the name of the church. That was my last

attempt. I went there, they told me that the ID that I had

should be sufficient. They gave me a letter, they sent me back

to the DMV on Wells Street, but it wasn't.

Q. It wasn't what?

A. They needed more. They wanted a birth certificate.

Q. And did any of these churches or agencies try to help get

your birth certificate for you?

A. When I was in Stevens Point, a Catholic church that helps

homeless people they put some money together sent off for a

birth certificate in Freeport, Illinois.

Q. And what happened?

A. We never received it.

Q. And when you didn't get it -- and when you say we never

received it what -- do you mean the church didn't get it?

A. The church never received it.

Q. And did you ask them to try again?

A. I did but they said it was a onetime deal.

Q. So overall how many times if you remember would you say you

went to the DMV?


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A. Three I know of.

Q. And, generally speaking, why did you go so many times?

A. I really wanted an ID. I wanted to vote and it seemed like

I needed a Wisconsin ID for other reasons, I guess to obtain

some type of employment I was trying sobriety.

Q. And did you eventually get your birth certificate?

A. I did.

Q. And how did that happen?

A. I am affiliated with Dry Hootch --

Q. For the record, I'm sorry to interrupt can you spell Dry

Hootch, if you can?

A. D-R-Y, H-A-T-C-H.

Q. I think it's D-R-Y, H-O-O-T-C-H.

A. What he said.

Q. And what is your understanding of what Dry Hootch is?

A. They help veterans that's struggling with issues,

homelessness, depression, unemployment.

Q. And how did Dry Hootch help you get a birth certificate?

A. I donated some time in helping them around the facility.

Q. Did they give you -- did you get money or did they actually

apply for you?

A. They gave me money to obtain a birth certificate.

Q. Did you apply for a birth certificate yourself or did you

get help?

A. I had help.


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Q. Do you remember from who?

A. Vet Place Central on Wells Street, my case manager was --

Q. It's okay.

A. Okay.

Q. Why did you need help to apply for a birth certificate?

A. I had had so much trouble in trying to obtain one before and

again my alcoholism, my depression, I have a trust issue, I -- I

was just -- it was easier for me to give up than to keep trying.

Q. And do you remember around when you got your birth

certificate?

A. I would say it's been about 90 days now.

Q. And when you got your birth certificate did you have a

Social Security card?

A. I had to go and obtain a Social Security card because the

DMV no longer accepts the letter that they give you while you

waiting on your Social Security card.

Q. So where did you get your Social Security card from?

A. On Wells Street.

Q. Is that the Social Security office?

A. I'm sorry, the Social Security office is on Wisconsin,

that's where I obtained it, but I found out about that I needed

the original Social Security card from the DMV on Wells Street.

Q. How long did it take to get to the Social Security office?

A. Took me about 45 to 50 minutes.

Q. How did you get there?


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A. I walked.

Q. And do you remember how you got back from the Social

Security office?

A. I got a transfer from a gentleman that had just got off the

bus.

Q. And when you got your social security, eventually did you

get your social security card?

A. I did.

Q. And did you finally get an ID?

A. I did.

Q. And around when would you say you got an ID?

A. About 90 days ago.

Q. And overall how long did you take -- overall, how long did

it take for to get an ID?

A. A year and a half, almost 2 years.

Q. I'm going to ask you a few more questions just about other

veterans. Did you stay in different shelters when you were

homeless?

A. I did.

Q. And when you were in those shelters did you meet other

homeless veterans?

A. At Vet Place Central because all of the people that stay

there are veterans.

Q. Did any of these other veterans have similar mental health

issues that you had?


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A. They did. And they needed identification, they wanted to

vote.

Q. And can you estimate about how many veterans you encountered

facing that situation?

A. Well, Vet Place Central houses about 70 people. I would say

at least 15 or 20 of them that came through there didn't have

IDs and had depression problems and trust issues.

Q. Mr. Ellis, do you think that veterans should be able to vote

with their veterans card?

A. I do, considering the things that we go through, the

depression, the trust issues. I didn't see why my military ID

should have been enough because I was trying to make a stand and

get my life back and make decisions.

MR. YOUNG: Thank you, Mr. Ellis.

CROSS-EXAMINATION

BY MS. LAZAR:

Q. Good morning, Mr. Ellis, my name is Maria Lazar, I'm one of

the attorneys for the defendants. You indicated there were

about 15 or 20 people that you knew who were veterans that

didn't have their ID cards?

A. A Wisconsin ID.

Q. Okay. Do you know if any of them tried to get their ID

cards?

A. Yeah. There was one of the case managers was trying to work

with us and they would fill out letters and send us with letters


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and send us to different agencies like the DMV on Wells Street.

Q. You were eventually able to get your ID card, correct?

A. I was.

Q. Do you know if any of these other individuals after they

tried were able to get theirs as well?

A. I don't know, ma'am.

MS. LAZAR: Thank you. I have no further questions.

THE COURT: Thank you, Mr. Ellis. You're excused.

(Witness excused at 10:38 a.m.)

MR. STEINER: The LULAC Plaintiffs call Reverend

Brisco.

WILLIE E. BRISCO,PLAINTIFF WITNESS, DULY SWORN


record and spell your last name and speak real close to that

microphone, please.

THE WITNESS: My name is Reverend Willie E. Brisco, my

last name is Brisco, B-R-I-S-C-O.

MS. CHAPMAN: My name is Leigh Chapman on behalf of

the LULAC plaintiffs.

DIRECT EXAMINATION

BY MS. CHAPMAN:

Q. How old are you, Reverend Brisco?

A. I am 59 years old.

Q. And what is your racial background?

A. I'm an African-American.


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Q. Where were you born?

A. I was born in a small town called Sturgis, Mississippi.

Q. And where do you currently live?

A. Currently live in Milwaukee, Wisconsin.

Q. How long have you lived in Wisconsin?

A. I've lived in Wisconsin since 1967.

Q. So why did you move from Mississippi to Wisconsin?

A. I actually moved from Mississippi to Detroit. We spent a

year in Detroit. My mother left Mississippi because there was

no opportunities in Mississippi. She only had two options as

far as employment, I believe the agricultural or domestic, both

which paid minimum wages which was about $15 a week. And she

also wanted a better life for her children.

Q. Are you currently employed?

A. I'm retired.

Q. What did you do before you retired?

A. I was for 25 years I was the assistant superintendent at the

Milwaukee County House of Corrections.

Q. What do you do now?

A. Now I am in a faith based organization called MICAH,

Milwaukee Inner City Congregation Allied For Hope For Social

Justice Organization and I'm a minister.

Q. Do you have a certified birth certificate?

A. Yes, I do.

Q. Did you have a birth certificate when you were born?


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A. No, I didn't. I was borne by a mid wife. I was born on

November the 8th, 1953 at home. I didn't go to the hospital

till November the 10th of 1953, and the hospital refused to

acknowledge my birth date as November the 8th, so from that

point forward my birth date was listed as November the 10th,

1953.

Q. And did you correct that?

A. Yes, I did. Actually I was married and an adult when I

finally got that corrected. I had applied for years but what I

would always tell people is my birth date, my birth certificate

indicates November the 10th, but it's actually November the 8th,

and I went through all of my school years with November 10th as

my official birth date but celebrating it on the 8th.

Q. Did you have any help correcting that birth certificate?

A. Yes, I did. My grandmother who remained in Sturgis,

Mississippi, she went to the hospital where I was originally

taken. She went to the school system where I was. She

eventually had to go 210 miles south of Sturgis to Jackson,

Mississippi to apply for a birth certificate for me.

Q. And when was this again?

A. This was in 1981.

Q. So let's talk about MICAH. How long have you been the

president of MICAH?

A. I am on my second two-year term, so 3 years now as the

president.


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Q. And what are your duties as president of MICAH?

A. I supervised the morale compass of it which is the religious

leaders. I tie together the four major issues that we operate

under to make sure that we are doing just in this community.

And I make sure that we are operating and I am the face and the

spokesman for the operation.

Q. How long has MICAH been in existence?

A. MICAH was formed in 1988, which is our 25th year anniversary

this year.

Q. And where is MICAH located?

A. The offices are located in the St. Francis Center at 1927

North 4th Street.

Q. What is the mission of MICAH?

A. MICAH's mission is to do what is just. We are formed from

the Prophet Micah and our mission statement comes from MICAH

6:8, what is God required of your old man is to do justice, love

mercy and to walk humbly with your God.

Q. How many members does MICAH have?

A. We have 34 church members which probably translates into

about 10,000 individual members because each member of the

church automatically becomes a member of the organization when

their church signs on.

Q. Is this throughout the State of Wisconsin?

A. It's throughout the City of Wisconsin. We do have a

statewide affiliate called Wisdom. We have 10 other


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organizations that do the same thing throughout Wisconsin in 10

other municipalities.

Q. So MICAH is in Milwaukee.

A. MICAH is in Milwaukee.

Q. What faiths are represented in MICAH?

A. We have all faiths at this time, probably, except for

Buddhists and probably Atheists. We are a multidenominational,

a multiracial makeup. We believe the ills of this community and

this country has to let down the guards of racial and religious

barriers to form an organization that does justice for people.

Q. What communities does MICAH serve?

A. MICAH was formed to serve the central city of Milwaukee

which was the most disenfranchised and the most impoverished

and the one then most discriminated by housing and banking

during the 1980s when it was formed.

Q. What racial groups live in the central city?

A. Predominantly African-American.

Q. Are there Latinos as well?

A. Latinos as well, there are Hmong, there are also African

contingent that live in the city.

Q. So why does MICAH focus on the central city?

A. Like I say it's the most impoverished, it's the most

segregated, it has the lack of most provisions. The disparities

between incomes and living wages is the most dire in that area.

Q. So what are some of the program areas that MICAH focuses on?


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A. MICAH believes that everything within the inner community

calls under four main issues: Jobs and economics, education,

immigration, and treatment alternatives instead of prison.

Q. And why did you choose these program areas to focus on?

A. Because those are the program areas that basically, if you

look at the Bible, if you look at any society that it is a

successful society, it has to have all of these areas

functioning in a proportionate manner and not a disproportionate

manner.

Q. Does MICAH focus on voter and civic engagement?

A. That's one of our passions, one of our -- and especially in

the last 3 years, it's one of our greatest passions.

Q. And does that fit under one of the programs that you

previously mentioned?

A. It fits under jobs, economics, it fits under education.

Q. Can you describe why?

A. Why, because where I come from we did not have the ability

to have a voice in either one of those areas, jobs, economics,

or education, and it was basically a non factor. I had a

discussion with my mother this morning and I wanted to know why

didn't any of her and her siblings vote at that time and she

felt that we did not have a voice, we could not change things,

we did not have a candidate in the race, and so it was too

dangerous and too punitive to put our families at risk. So I

now have taken that mantle to realize that nothing like this


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will ever happen again.

Q. Before becoming president did you hold any other position at

MICAH?

A. I started out at MICAH as a member of the jobs and economics

task force and I became president of the jobs and economics task

force.

Q. And what did you do in that role?

A. In that role we tried to organize contractors. We tried to

change the landscape of Milwaukee as far as the black male

unemployment. We realized that if we were going to get black

males employed and improve the 53206 ZIP code area, we had to

approach contractors. We had the ability to get government or

city contracts, and that way they would be able to hire

African-American men. But we found out that that was a lot more

strenuous than we had perceived.

Q. So apart from your role at MICAH, are you a pastor at any

other church in Milwaukee?

A. I'm an associate minister at New Covenant Baptist Church,

and I serve underneath their pastor, Dr. F.L. Crouther,

C-R-O-U-T-H-E-R.

Q. And what is the racial composition of that church?

A. Predominantly African-American. We have a small white

contingent, and there is a -- Hispanics on the roll but they

have not attended in a while.

Q. Are you registered to vote?


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A. Yes, I am.

Q. How often do you vote?

A. I make sure that I vote in every election no matter what it

is because of the fact of what my mother and I discussed this

morning. We did not have that opportunity before, and I want to

make sure that I have set an example not only for my children

but for their children that we have a stake in this country and

we have an obligation to vote in this country.

Q. So earlier you testified that MICAH has a voting and civic

engagement program. What specific voting programs does MICAH

engage in?

A. We do door-to-door canvassing with our partners in voter

engagement, we do voter education in our churches, we actually

conduct a lot of training sessions at our board meetings, and we

make sure that our members in each church has a civic engagement

proponent that deals with voter engagement.

Q. So have you personally participated in these civic

engagement activities?

A. Yes, I have. I've driven people to neighborhoods, various

industrial corridor, the 30th Street corridor that is notorious

for not having a great voter turnout. We basically populated

that area during the elections to get people out to vote. And I

have done canvassing myself.

Q. And do you know what elections those were?

A. We did the gubernatorial, the president election, and also


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the local elections when it came to county supervisor, aldermen.

We targeted all of those.

Q. And how did you pick those particular neighborhoods to

canvas in?

A. We picked those neighborhoods because demographics showed

that there was a lack of turnout, historical lack of turnout in

those areas. And as you went through those areas, you found out

that that was the area where people were the most

disenfranchised. They had the most hopeless thoughts in their

minds regarding elections and what they could change. So we

wanted to change that perception to let them know that they had

a right to stand up.

Q. And what was the racial makeup of those neighborhoods?

A. Predominantly African-American neighborhoods.

Q. So did you observe any problems while you were canvassing?

A. Yes. While canvassing, the same things that you heard

testified to earlier. People were distrustful of government, a

lot of people had transferred. Their relatives came here from

areas of the South where they believed that they did not have

the right to vote, their vote didn't count, and a lot of people

did not want to take the extra measures that it involved to

vote.

Q. So I want to talk about voter ID. Are you aware of the

Wisconsin voter ID law?

A. Yes, I am.


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Q. What did MICAH do when the voter ID law was in effect?

A. When it was in effect, we knew that it was going to be a

very detrimental and punitive to our community. Because we have

a large amount of individuals who returned from prison, who were

-- had never been employed, who can't get employed, who don't

have driver's license or IDs. We wanted to make sure that they

were not disenfranchised in this vote. We wanted to try to make

sure that we reached as many people as we could to make sure

that they were registered to gets IDs and that they had an

ability to get there.

Q. Did you have specific programs to help people?

A. We had -- we did the van drives to the DMV, we did -- we had

worked with people like Citizen Action who went around to

churches educating the leadership and the congregations as to

what was required and how they could go about getting these IDs

and what they needed to do to get their birth certificates.

Q. So were you able to help all the MICAH members who needed an

ID?

A. We were able to help a lot of people, but we weren't able to

help all people.

Q. And why is that?

A. That is because it is impossible to reach down to the levels

where some of these people were and to get them to be trusting

and to get them to come forth.

A lot of people thought that if I come forth and apply


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579

for something, that I have something in my record, I have

something that the government will charge me with or something.

If I register, I become a target. We had that demographic.

We also had the demographic that just felt hopeless in

this whole process and that this was just another barrier.

We had a whole other demographic that believed this

was a poll tax, this was something that they had seen before,

that they had heard about before, and they weren't going to

engage in it.

Q. And what was the racial makeup of those people?

A. Predominantly African-Americans.

Q. Is Cross Lutheran Church a member of MICAH?

A. Yes, it is. Cross Lutheran was one of the founding members

of MICAH.

Q. And does MICAH have members affected by the voter ID law?

A. Yes. There's members in our congregations. That was where

we first started to try to make progress.

Q. And what do you think about the voter ID law?

A. I think the voter ID law is unnecessary. I think it's

another barrier that's being placed on people who have a

historical distrust of barriers that are placed on their voting

rights. I think being born in this country as a citizen and

working in this country and having your ties is enough in this

country to vote.

I don't think that we need to put any more punishment


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on individuals. We are trying to engage our communities. And

those people who have totally been disenfranchised through

history, we are trying to get them to realize that they play a

part in this. So we don't need to put any more barriers ahead

of them.

There is no evidence that elections have been swayed

or have been determined by the black voter ID, and it's not

necessary.

MS. CHAPMAN: Well, thank you. I have no further

questions.

CROSS-EXAMINATION

BY MS. LAZAR:

Q. Good morning, Reverend Brisco.

A. Good morning.

Q. And first of all, thank you for coming in and sharing your

story. And happy birthday in two days.

A. Thank you very much.

Q. Not a problem. Not four.

You indicated that MICAH has 34 church members and

about 10,000 individual members.

A. 34 churches in the membership, yes.

Q. And you indicated that MICAH's mission was to do what is

just?

A. Yes.

Q. Is there -- and you indicated you understand or you're aware


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of Act 23, the voter ID law, correct?

A. Correct.

Q. Is there anything that MICAH is required to do by Act 23?

A. We are not required to do anything by Act 23. We are doing

it out of mission.

Q. And what is the purpose of MICAH?

A. The purpose of MICAH is to do social justice, to speak for

those who do not have a voice or who don't have a means to come

forward with their voice. We reach out to those who have been

disenfranchised and been disproportionately disadvantaged.

Q. You indicated that MICAH has some programs that they are

involved with in your voting and civic engagement program, and

one of the programs you mentioned was van rides.

Isn't it true, however, that MICAH's program for free

rides to get IDs hasn't got -- hasn't had a lot of attention?

Let me rephrase that.

Isn't it true that not a lot of people have requested

assistance from your van ride program?

A. We actually reached out to individuals because we don't have

vans or we don't have that money available. These are things

that we did, raise funds and got grants and funds to do this

because this is not an ordinary function of us. We are a

nonprofit organization.

Q. So would you say, then, that your program assisting people

to get IDs was successful?


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A. I would say it did what was it intended to do. It did not

reach the amount of people that it needed to reach.

Q. You specifically said that MICAH helped not all members but

a lot of members. Do you know, can you name any members of

MICAH who have not been able to vote if the voter ID law was in

effect?

A. Individually name them, no, I cannot. But I can attest that

there were.

Q. Okay. You indicated that there were several reasons why

some of the individuals you could not help, and one of them --

and two of the reasons you indicated hadn't -- one of the

reasons you indicated was that there was a lack of trust in the

system. Is that correct?

A. That is correct.

Q. And so that would have nothing to do with whether there was

voter ID law or not. That was just a specific lack of trust in

general?

A. There's a lack of trust in general, yes.

Q. You also indicated another reason was a general sense of

hopelessness. But that has nothing, really, to do with the

voter ID law. That's just another perceived feeling, isn't

that?

A. It does have something to do with the voter ID law.

Q. And what does it have to do with the voter ID law?

A. It's another punitive measure that they have witnessed


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583

through history that is a poll tax that they believe, and they

really stand out against it.

Q. You indicated it's a poll tax. Isn't it true, however, that

in the State of Wisconsin individuals can get a free state ID?

A. They can get a free state ID. I did not say that it was a

poll tax. I said it was perceived as a poll tax because the

majority of our individuals in our communities have ties to the

South. And if you have ties to the South, you know the

restrictions and you know the punitive things that were put on

the voter.

Q. And are you aware, if you are aware, whether or not in

Milwaukee County individuals can get free birth certificates?

A. Yes, I was aware of the free birth certificates. I was also

aware of the free IDs.

But I was also aware of how that was really, really a

trying effort to get those. The voter IDs at the driver's

license stations was punitive and was very congested. And there

wasn't a whole lot of information on how you got free birth

certificates. There was a whole lot of problems in getting both

of those.

Q. You indicated that you thought that this was another

barrier. And I maybe quoting you wrong. You said something to

the effect that being born is enough.

Do you believe that people should not even have to

register to vote?


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A. I believe that people should be able to register to vote.

They don't need to be able to prove that they have been in this

country all of their lives. They don't need this punitive

measure put on them. If they were born in this country, if

they're a naturalized citizen, if they are paying taxes, that

should be enough for them to vote.

Q. Well, if you're saying they should register, do they have to

prove -- are you saying they should have to prove who they are

or just walk in and say "I'm Reverend Brisco"?

A. Registering and voting are two different things. You can

actually register, you use your home address. You can use

actually your ID from work. You should be able to use your

school ID. You should be able to use your Social Security card.

You should be able to use just a plain birth certificate, if

necessary. But you're saying that you need a current valid ID.

Q. But you're saying that they need to have some proof of who

they are, correct?

A. And it does not necessarily mean a photo ID.

Q. Do you believe that every citizen born in the United States

has the right to cast a vote?

A. Every citizen born in this country should. And I think when

this country looks back on some of its punitive measures, what

it has done to felons and what it has done to our population,

it's going to be a big disgrace and a big mark on America as a

culture.


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585

Q. Do you believe that every vote should count?

A. Yes.

Q. Do you believe that people should not have the ability to

void out validly cast ballots?

A. Should void out? Explain that.

Q. Do you believe that someone should not be able to illegally

void out your vote?

A. Yes, they should not be able to discount my vote.

Q. Do you believe that voter confidence and the integrity of

elections and the electoral process is important in our

democracy?

A. Yes, it is important.

Q. And do you believe if the public does not have confidence in

the integrity of an election or the process itself it damages

the legitimacy of the government?

A. If the public had that view, I would say so.

MS. LAZAR: Thank you very much.

THE COURT: Thank you. I believe you're excused.


MR. LENNINGTON: Your Honor, I believe the plaintiffs

are going to call John Mas at this time, and we would like our

motion in limine to be heard.

THE COURT: Okay.

MR. ULIN: Your Honor, the plaintiffs call John Mas.

THE COURT: Okay. I read the papers. Do you want to


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586

add anything?

MR. LENNINGTON: Yes, Your Honor, I'd like to add a

few things.

THE COURT: Okay.

MR. LENNINGTON: Leland Beatty will testify that he's

discovered that a certain number of Wisconsin registered voters

do not have a matching driver's license or a free state ID card.

Leland Beatty was disclosed as an expert long ago; he

was deposed twice; he produced two expert reports and supporting

materials.

Mr. Beatty's going to testify that after he discovered

these people without driver's licenses or state ID cards that he

gave those names to a company called Ethnic Technologies.

Ethnic Technologies is, in my mind, a black box. You

don't know what comes in and you don't -- all you know is what

comes in the black box and you know what comes out the black

box. You don't know what happens inside the black box.

We don't know how Ethnic processes the information.

We don't know what Ethnic did with Beatty's numbers. We don't

know who received Beatty's numbers. Beatty's info went in one

end and came out the other, and Ethnic is going to produce some

evidence here that a certain number of Beatty's unmatched

registered voters are a certain race.

Realizing that Mr. Beatty is not qualified to testify

as to what Ethnic did, plaintiffs added just last week a new


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587

witness named John Mas.

The e-mails from Beatty establish that the fact that

the plaintiffs desperately need Mr. Mas to testify as to how

Ethnic took these unmatched names and magically produced the

races of these individuals.

All the way back in 2012, Beatty said that the legal

process requires me to defend the accuracy of the match.

We attach these all to our motion.

He said we really need an expert witness who can

establish the credibility of your analytics, meaning Ethnic

Technologies. He said that expert validation of Ethnic

Technologies would obviously be of great help.

And just this morning we received a witness list from

the Advancement Project which said that the purpose of John

Mas's testimony is to talk about the process that our

statistical expert used.

Defendants' position with this motion is this.

Mr. Mas cannot testify as an expert because he was late

disclosed. This means no testimony. Under Rule 702, scientific

testimony, technical testimony or other, quote, specialized

knowledge. This would include testimony about the processes

employed and the methodologies used by Ethnic Technologies when

evaluating Mr. Beatty's information.

Defendants -- plaintiffs say that Mr. Mas is no

expert. He's just going to say that Ethnic apparently is a good


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588

company that he used to work for back in 2007. But if this is

the limited nature of the testimony, it's simply not relevant.

If Mr. Mas is not going to say anything about what Ethnic did

with Beatty's info, then why is it relevant and why is it

pertaining to any of the elements of their case?

The only relevant testimony is testimony about how

Ethnic took Beatty's data and processed it, analyzed it, and

determined the race of approximately 300,000 Wisconsin

registered voters.

THE COURT: Okay. Thank you.

MR. LENNINGTON: Thank you.

MR. FOSTER: Thank you, Your Honor. Nathan Foster for

plaintiffs.

This is a witness who worked at the company in

question for many years. He has a continuing relationship with

him. Our position as to the nature of his testimony is that it

is factual testimony. Mr. Beatty is the disclosed expert, the

qualified expert, and we in no way agree that Mr. Beatty is not

qualified to describe what Ethnic does or how it worked in this

case. We think he can testify. We expect that he will testify

on that question.

Mr. Mas is disclosed because as an employee of E Tech.

He has firsthand factual knowledge about what goes on there,

about who their clients are, about how long they've been in

business, and yes, how their process works.


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589

We don't think that that makes it expert testimony.

In our pleadings, which I gather you've read, we think that the

case law supports that. We think that there is a body of law

out there which recognizes that employees and owners of a

business have what the law describes as particularized knowledge

of that business, and that makes it factual testimony. That is

in the Downeast Ventures cited in our motion.

Would you like the citation read into the record or is

the motion sufficient?

It's in the Annapolis Bank Corp. case which describes

an FDIC accountant who was allowed to give factual testimony in

spite of the fact that it's unarguably complicated and arguably

specialized and beyond the nature of a layperson. That is still

considered factual testimony because it is what is sometimes

described as percipient testimony from his experience. That's

the nature of what we're talking about here. That's why we

think the law considers it fact testimony.

As to the background on Mr. Beatty, since June 20

of '12, a few weeks after the e-mails disclosed by the state,

Mr. Beatty put into the record of this court other academic

articles that use Ethnic Technologies, his own understanding of

what Ethnic Tech does. That's in Mr. Beatty's rebuttal

declaration of the preliminary injunction briefing. I believe

the docket numbers are 59, 60-3, and 60-4.

So the state's contention that they have a black box


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590

understanding of this company and what they do goes back well

over a year. They've had plenty of opportunity to do their own

discovery on this case. They have, as they admit, deposed

Mr. Beatty twice.

We disclosed Mr. Mas a couple days after this

court's -- we disclosed his name in the pretrial report witness

list. As required, we stated that he was an Ethnic Technologies

employee, I believe about two days thereafter. And you know, we

think it's very clear that the state has long known about this

company and been able to investigate it. If they had wanted to

depose Mr. Mas, they could have done so anytime after the 22nd

of October when by my count think at least 4 or 5 expert

depositions of other individuals have been taken in that window.

The state has taken no other depositions of fact

testimony, all of which in our view goes to the point that

regardless of whether you consider this a fact or expert witness

testimony, there's no basis for exclusion under the standard

Rule 37 which indicates that if the, you know, imperfect

disclosure is harmless, there's no reason to exclude. We think

the state has had opportunity to take on these facts.

The only other point I would make, I think,

Your Honor, is to say that if Mr. Mas is an expert based on his

work in this case, at Ethnic Technologies, then it's very

likely, in my mind, that the clerks disclosed by the state to

testify about how the complicated election process in Wisconsin


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591

works are also experts but have not been so disclosed. It's

very likely that the GAB and DMV administrative officials have

that same position.

You know, we think that this is on the fact side of

the testimony. And irrespective of whether that's a fuzzy line

at times, we don't see the harm. We think it is harmless or

substantially justified under the procedural history here and

would ask that Mr. Mas be allowed to testify.

THE COURT: Okay. Thank you. Go ahead. Do you want

to say something more?

MR. LENNINGTON: Just a few minor points.

Again to emphasize, Mr. Mas was disclosed last week.

We had depositions scheduled -- one or more depositions

scheduled every single day.

They knew in 2012 that we, quote, really need an

expert witness. Now they're saying he's not an expert, although

he's the cavalry coming in at the last minute.

If we hear Mr. Mas, we're going to hear a lot about

onomastics and geocoding. Onomastics was asked about

Mr. Baretto yesterday. He didn't even know what it was. If

onomastics and geocoding are not expert testimony, I don't know

what is expert testimony. He's obviously going to testify as to

what Ethnic did with this data in one end and came out with the

race of 300,000 people on the other end. That surely must meet

the definition of expert testimony.


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592

Thank you, Your Honor.

THE COURT: Okay.

MR. FOSTER: Your Honor, if I may. Three points.

Regarding the e-mails, we considered whether to call

an expert on this. We decided we didn't need one. The record

shows that that consideration was a couple of weeks before

Mr. Beatty put in the additional materials on Ethnic in

June 2012.

As to Mr. Lennington's point that the only relevant

issue is what Eth Tech did, Mr. Mas has no knowledge of what Eth

Tech did in this case. He didn't work on the project. That's

not what we're going to call him for.

We do think the background is relevant for the reasons

that are clear. It's a process that Mr. Beatty used and we

think there are, you know, indicia of reliability that come out

of the background of who the company is and what they do.

And you know -- and finally, you know, as to the

question of whether there was surprise or timing or anything

else, the record speaks for itself on the dates. As I said,

they knew he was a witness on the 18th. Per court order, they

knew he worked at Eth Tech on the 22nd. They never asked for a

deposition.

It was not until several days later that they said,

hey, we think this guy is an expert and we object. They did not

ask for a deposition at that time. They never at any time since


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593

June 2012 sought discovery on E Tech, including after they knew

Mr. Mas's name and role.

(Brief pause.)

THE COURT: Okay. Well, the proponents of the witness

basically state in their memo that Mr. Mas is going to address

factual issues, basically relating to his -- what he did at

Ethnic Technologies, how long it's been in business, what

clients use its services, what kinds of decisions these clients

make, and what data sets supports its analysis.

Basically, these are observations, as I understand it,

that he made as a person who works there. And testimony about

what Ethnic Technologies does is lay testimony.

You know, testimony about whether what Ethnic

Technologies does is scientifically valid or something like

that, that's not okay. I mean, you can't go into generalized

principles, you can't explain scientific principles, or he can't

offer opinions based on specialized knowledge.

Seventh Circuit makes a distinction that that kind of

testimony -- basically, the Seventh Circuit cases state that lay

testimony is limited to what the witness observed. It doesn't

become expert testimony until the witness brings -- makes

observations and connections for the finder of fact based on

specialized knowledge.

So there's a line, obviously it's not an entirely

clear line. And so Mr. Mas will be allowed to testify as a lay


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594

witness. He was properly or timely disclosed as a lay witness.

And if he goes beyond that, you can object and I'll uphold your

objection.

MR. LENNINGTON: Thank you, Your Honor.

THE COURT: Okay.

MR. FOSTER: Thank you, Your Honor. Plaintiffs call

John Mas.

THE COURT: Okay.

JOHN MAS, PLAINTIFF WITNESS, DULY SWORN

THE COURT: State your name for the record.

THE WITNESS: My name is John, J-O-H-N, M-A-S. I'm

also Juan because I have a dual identity from my birth

certificate versus my name here.

THE COURT: Okay.

THE WITNESS: J-U-A-N for Juan.

THE COURT: And speak real close to the mic.

THE WITNESS: Thank you.

THE COURT: Okay.

DIRECT EXAMINATION

BY MR. FOSTER:

Q. Good afternoon, Mr. Mas. Can you tell the Court where you

live, please?

A. I live in Heledon, New Jersey.

Q. Can you tell us a little what you do for a living?

A. What I do for a living right now is I have a company that


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595

does digital direct marketing. It works with supermarkets, and

what we do is we do advertising for the store owners.

Q. What other jobs have you had in the past?

A. I worked at Ethnic Technologies in 2007, from 2004 to 2007.

After that, I worked at Pro Marketing doing digital --

doing marketing for stores.

And prior to that -- I mean back before 2003, I worked

for R. Paniague, Inc. And actually it was a partnership with

Don King and we did promotions with boxing, with baseball, and

other things as well.

And prior to that, I worked in Hispanic advertising

agencies all the way down to 2007. So you could say over the

last 35 years I've worked in Hispanic marketing. I've worked in

marketing and analysis of different things.

Q. Fair to say all those jobs are in direct marketing or

digital marketing?

A. Yes. They all require direct marketing expertise.

Q. What was the last title you had when you worked at Ethnic

Technologies?

A. I was an account director. What we did was I helped the

development of new business and new products within Ethnic

Technologies. So I was a salesman but I was also account

executive, and I helped to manage the relationship between the

clients and the company.

Q. So a big part of your job was working with the clients of


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596

Ethnic Technologies?

A. That was my main focal point.

Q. In that job you had lots of opportunity to talk with those

clients.

A. I had to.

Q. You understood what they hired Ethnic Technologies to do?

A. Yes. My job was to communicate the value proposition of

Ethnic Technologies, how it worked, what it did, and what was

the benefit to the client, and to understand what the client

needed so we made sure everyone was on the same page.

Q. And did you also field questions from those clients, they

came back with follow-up and asked more about what you did and

how it worked?

A. Yes, I did. I mean -- my approach is always to explain

things on a very simple way so people could understand the

premise of how it worked. And because direct marketing is a

trial and error focus, science and art, what I did was we worked

through to make things better over time progressively. So that

entailed that bidirectional communication with customers so if

something didn't happen right we found out what, how to tweak it

to make it better.

Q. So in that job I'm sure you got an understanding of what it

was that Ethnic Technologies' clients, do; is that true?

A. I had to because it's a solution. I mean it's not one size

fits all, it's what they need and you figure out what they need


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597

and then you find out what you can do to fulfill that need.

Q. If I can back up for a second. Do you have a cooperating

relationship with Ethnic Technologies since 2007?

A. Yes, I do. I have on a multiple levels if I have clients

that need their services or that can use their services I would

recommend them because I've had a positive experience with their

outcomes. From a different level I have a personal relationship

with the owners and with different people there that have become

friends -- more like friends or family over time.

Q. How frequently do you work with them in your current

professional life?

A. Once a quarter. It just depends upon the -- I mean, because

I've moved into a different field a little bit, I don't need

them as much but I do keep in contact with the staff.

Q. How long has Ethnic Technologies been in business?

A. Ethnic Technologies as a entity has been in business maybe

since 1995. And I say that because it was Consumers Marketing

before that, and the partners got together and changed it to

Ethnic Technologies in the 1990s, late 1990s. Mid to late.

Prior to me coming on board.

Q. In general terms can you tell us what is the service that

Ethnic Technologies provides to its clients?

A. What Ethnic Technologies does is it helps to analyze data

which is names and addresses of individuals and helps determine

their origin or their ethnicity, their language preference, the


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culture or religion through a process.

Q. Who are some of the clients that hire Ethnic Technologies

for that service?

A. There are clients that hire, the U.S. census hires Ethnic

Technologies. Social Security Administration hires Ethnic

Technologies. And these are long lasting relationships past 10

years old. You have Experian which is the credit bureau, one of

the credit bureaus that also does direct marketing. They have

licensed Ethnic Technologies since before I was there so it has

to be at least 10 years. Acxiom which is a major database

company that sells data and that does modeling, they've used

Ethnic Technologies. They're the main clients and they pay

royalties to them for over 10 years. And another company would

be knowledge based also known as A.C. Nielsen uses Ethnic

Technologies for their modeling purposes. A.C. Nielsen is also

the one that does the Nielsen ratings for TV and other things of

that nature. So they rely on Ethnic's data for their marketing

purposes. And all these are long lasting relationships and I

believe the remuneration is in the millions. So it's not cheap.

Q. How big of a company is Ethnic?

A. At the time I was there because I don't do head counts now,

but at the time I was there it was about 25 employees.

Q. Tell me, what kind of information about the individuals in a

database does Ethnic provide to its customers?

A. The nature of the businesses of Nielsen or Experian or


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Acxiom, these are companies database compilers and they have a

myriad of additional information about people's behavior, their

purchases, their income, their background. So it's a composite

picture of what the individual and where they live, how much

they earn, they have homes, they don't have homes, they have

debt. That type of information is within the Ethnic database,

but more particularly Ethnic looks at people's language

preference. Inferred, these are all inferred.

MR. LENNINGTON: Objection, Your Honor, we're getting

into process and specialized language.

THE COURT: Overruled. He's talking about what it

does.

THE WITNESS: What it does. They look at inferred

information as far as language preference, gender, religion.

Ethnicity. And, you know, cultural -- and language of origin in

many cases. I mean country of origin, let me correct myself,

country of origin.

BY MR. FOSTER:

Q. So one of the pieces of information they deliver to a client

that gives them a database is the ethnicity of the individuals

named in that database.

A. Yes.

Q. Is that a primary piece of their business?

A. Yes.

Q. Would you describe that as their core competency?


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A. Yes.

Q. Let's talk a bit about the customers you named somewhat.

You mentioned the U.S. Census Bureau.

A. Uh-huh.

Q. Has the census bureau used Ethnic Technologies more than

once?

A. Yes, I believe so, yes.

Q. Has the census bureau used Ethnic Technologies to provide

the service you just described of providing matching information

including the ethnicity of individuals named in a database

provided by census?

A. I believe so. But because of the confidentiality involved,

I can't attest to it.

Q. How long has Ethnic Technologies worked for the Social

Security Administration?

A. I would say at least over 10 years because when I was there

they did projects for them but again, I'm not there continually

and I don't ask about those -- those are proprietary questions.

Q. Do you know what Social Security Administration did with the

data provided by Ethnic?

A. That was confidential.

Q. Let's talk about some of the commercial clients. You

mentioned Experian, that's one of the three major credit

bureaus, correct?

A. Correct.


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Q. You said over 10 years that Experian has hired Ethnic?

A. Yes.

Q. What does Experian do with the data provided by Ethnic?

A. Experian and Acxiom, a knowledge base, those three companies

do similar things. They have a compiled database and what they

do is they add the cultural aspect to it or the language

preference or the country of origin aspect to it and they create

models based upon where people live, how much they earn and what

their culture is so when they want to communicate to that

individual they want to communicate just like two people who

identify themselves and say, you know, and speak to them in

their language or in their cultural context with a message

that's appropriate. So, for instance, if you want to reach

people who are from India for a fund-raiser after the Tsunami,

what I did at that time is I sold lists of people from India or

Sumatra, Indonesia, who were wealthy, and I sold those lists to

fund raising companies which would then turn around and try to

raise money for the Tsunami. That's the nature of -- you

identify the list, you give the list to a person interested in

reaching that group, and then they would mail to that group.

And the process that if we had bad mailings or bad names or

something they would come back and we would try to figure out

what went wrong and fix it. So it's a fine-tuned process that

was what Ethnic Technologies does is not only sells the lists or

identifies, it but continually tries to sharpen the pencil.


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Q. And so the companies you mentioned rely on the Ethnic data

to make major business decisions.

A. Yes. Right. And they're repeat customers so it tends to

validate what the product they produced.

Q. And Experian, Acxiom, Nielsen, Knowledge Base, the companies

you mentioned, would you consider those to be market leaders in

their field?

A. They're market leaders and they're also -- they're companies

that have licenses with Ethnic. In fact, they also hold the

software and they pay royalties and they resell that

information. So if they re-sold bad information I guess that

relationship wouldn't last very long.

Q. And so in your business relationship and your sales

relationship with them, the reliability of their data is an

important business fact for them.

MR. LENNINGTON: Objection. Talking about reliability

of the Ethnic data is specialized knowledge.

THE WITNESS: Okay.

MR. FOSTER: Your Honor, I'm not asking him to opine

about the reliability.

THE COURT: Overruled. When you say they I was

confused as to who had these -- you're talking about Ethnic?

THE WITNESS: The customer.

MR. FOSTER: Let me enumerate the question,

Your Honor.


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THE COURT: Okay.

BY MR. FOSTER:

Q. Based on your experience -- first of all, how long have you

worked with Experian?

A. Experian is still a customer to my knowledge. So back in

2004 Experian was a customer.

Q. And based on your experience working with Experian is the

reliability of the data that they get from Ethnic an important

fact to them?

A. Yes, it is. Otherwise they would substitute with another

competitor, I believe.

Q. Based on your experience working with them do they make

significant business decisions based on the reliability of that

data?

A. I believe so. That's a critical component from my

experience in the Hispanic market especially identifying who is

Hispanic for marketing purposes is very critical in this

juncture as far as marketing goes because of just marketing

itself. And if you can identify Hispanics accurately it goes a

long way towards the marketing program.

Q. Same questions for the Acxiom company. First of all, tell

us a little bit more about what you know that Acxiom does with

its data?

A. Acxiom does pretty much with Experian does but maybe on a

larger scale.


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Q. How large of a scale?

A. They have every name and address in the country but they're

more aggressive on the list side. Experian has different

verticals where they do the credit bureau and the other things.

Acxiom is purely a list and database company. So their prime

focus is that. Acxiom is the largest customer for Ethnic.

Q. And given your experience working with Acxiom is the

reliability of the data they get from Ethnic an important

business input for them?

A. I would assume so just as it is for Experian and probably as

Knowledge Base or A.C. Nielsen, they use it in their modelling.

Q. From your experience with them do they make significant

business decisions based on the reliability of that data?

A. Yes. It's the prime -- it's one of the component datas

within the data selection on the database online.

Q. Third you mentioned knowledge based Nielsen. Is that the

Nielsen people we are familiar with from TV ratings?

A. Yes, it is.

Q. And that's a significant database company as well?

A. Yes, it is.

Q. Is the reliability of the data they get from Ethnic an

important business fact for them from your working experience?

A. I would assume so because they're still customers.

Q. Because?

A. They're still customers.


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Q. And do they make significant business decisions based on the

reliability of that data?

A. It's part of their modelling so it's -- it should be because

then the models would be wrong.

Q. Is Ethnic Technologies a market leader in the field of what

it does?

A. Yes, it's the number one company.

Q. Of how many companies approximately?

A. There are about five. There's LSDI, which was actually

founded by former Ethnic Technologies employees. And it's

Geo-Scape. And there's a couple other new ones but I haven't

really gone that way.

Q. Can you describe in basic terms what's the principle of how

Ethnic Technologies provides an Ethnic match for a name?

MR. LENNINGTON: Objection. Your Honor, he

specifically used the word principles and now he's asking for

principles.

THE COURT: Yeah. It sounds like we're kinda getting

into general principles. I don't know. You can ask him what it

does. But he can't explain the theories or anything behind it.

BY MR. FOSTER:

Q. What is the name matching technology or system or process

used by -- what does it do?

A. In a very -- in the nutshell, my name is Juan, my last name

is Mas, many people in this room would assume that I spoke


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Spanish because my parents named me Juan. When I came to this

country my mother changed my name to John in school because she

wanted me to be treated differently. We didn't live in a

Hispanic area at the time. So the premise is that you look at a

person's first name and you can infer a little bit about their

culture or their background or you can look at the last name.

If you heard Alex Rodriguez you wouldn't think that he's a

Chinese person playing baseball. And that's the nutshell of how

Ethnic Technologies works and what they did was they refined

that process through research.

Q. Were you in the courtroom yesterday when Attorney Kawski

examined the witness Ray Ciszewski?

A. Yes.

Q. Do you remember Attorney Kawski recognizing that as a Polish

name?

A. Yes.

Q. Same principle?

A. Exactly.

Q. Is it fair to say that what Ethnic does is a more

sophisticated implementation of the basic principle you just

described?

A. Yes. They have over 30 to 40 years of massaging the process

of the names to arrive at their results.

Q. Where did they get the data that matches names to

ethnicities?


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A. Research.

Q. Proprietary research?

A. Yes.

Q. How many names do they have that they can match to

ethnicities?

A. 900,000 names for last names, 165,000 first names.

Q. These are round figures.

A. Round figures.

Q. Is there any other part of what they do other than the

naming match?

A. They also use geography.

Q. Is that the process that gets described as geocoding?

A. You could say that.

Q. What's the nutshell view of how that works?

MR. LENNINGTON: Objection. Calls for expert

testimony. He said how does geocoding work. That's exactly

what I was talking about.

MR. FOSTER: I'm asking for the same level of

explanation --

THE COURT: I think he can say what he did there and

if he understands what Ethnic Technologies does. He can't

explain why or any principles behind it but he can say what it

is.

THE WITNESS: In the nutshell geocoding is the process

where you look at a person's name in reference to where they


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live. So you could have people with the last name Lee, like

Bruce Lee or Stan Lee and help decipher if he's Chinese or

Jewish. So if you know where they live you can know that Bruce

Lee if he lived in Chinatown more than likely would be Chinese,

or Stan Lee if he lived in Riverdale, New York was Jewish. And

that's a very rudimentary answer.

BY MR. FOSTER:

Q. Is it fair to say that the way in which Ethnic implements

that is more sophisticated than what you've just described?

A. Much more, but I can't discuss that.

Q. Where do they get the data for geography matches that they

use?

A. U.S. Census.

Q. Anywhere else?

A. Their own research.

Q. How big is the database of geography data that they use?

A. I would just say just census block. The lowest denominator

within the census block. The census block, or Lat/Long which is

the latitude and longitude, and the ZIP+4.

Q. Were you in the courtroom yesterday when Mr. Barreto

testified and was asked about geocoding?

A. Yes.

Q. Do you remember that Mr. Barreto gave a hypothetical example

that if you had a census block that was 96 percent Hispanic that

in all likelihood a person randomly selected in that census


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block would be Hispanic?

A. Yes.

Q. Is that an accurate nutshell version of what you're talking

about?

A. Yes. Yes.

Q. Does Ethnic Technologies use other databases in addition to

the other processes you described to support their process?

A. Actually they use the U.S. Postal Service because the U.S.

Postal Service provides all addressable or mailing addresses.

Q. What do they do with the postal service data?

A. Just to make sure that the address is correct on the

database. Because your information and this is a general

hopefully answer, information that you get out is only as good

as the information you put in. So if the address is wrong or

the phone numbers are wrong or whatever is that you put in are

wrong you're not gonna have good data. So you just have to make

sure that the U.S. addresses are correct. They have other

databases from Acxiom, Experian, Knowledge Base, that all have

basically much of the same data and they just make sure that

everything is playing well together and up to date.

Q. How big are those data sets that they use?

A. They go through about 2.5 billion records a year.

Q. So the process you're describing is to make sure the

addresses that are received are -- I'll withdraw the question.

A. Okay.


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Q. Is there a similar process that Eth Tech uses to make sure

you have good name data in addition to good address data?

A. It's within their system of identifying names.

Q. And what do they do to do that?

A. The software looks at the names and makes sure that they're

separated correctly. Commas, spaces, dots. All those things.

Q. What do they do to check for spelling errors, for example?

A. They just have, it's just in the software. I don't want to

go too deep. But it's just more -- it's like a computer system.

You enter -- how do I say this -- anyone who does a Google

search misspells a name on Google of a restaurant they're

looking for and Google will come back with the search results

with the right spelling. That type of a concept.

Q. Do they use phonetics to correct for misspellings?

A. More than probably.

Q. Does Ethnic provide numbers or measures of reliability to

its clients?

A. It does on its literature. It's basically, if it says it

gets a clean list that it normally gets about 96 percent

accuracy on the clean list, meaning of accuracy of them saying

of identifying names on the clean list, 96 percent.

Q. And that's a number that's reported to clients.

A. That's a number that's on their literature. So that's

easily researchable.

Q. And clients who have seen that number have continued to hire


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Ethnic over the years.

A. Yes. And if the rate is not there, they question why and

then it's I guess reviewed. That's what I used to do is to find

out why it wasn't measured -- why it doesn't measure up and most

of the time it's the list.

Q. What does Eth Tech do to check the accuracy of its

information?

A. They did two things while I was there. The research

department would actually do primary research which is calling

people up to make sure that any assertions they made reflect the

hypothesis of what they were thinking of. That's the primary.

And the secondary one, well, it's actually the one they did the

most was if I'm a person mailing to people and I had mail that

didn't get directed to the right place or the names are wrong or

the -- something was wrong with the mailing, those mailings are

sent to the company in a box and the company goes through the

boxes of the errors, we'll call that, and find out what was the

error and try to figure out how to improve their process to

eliminate error. And over time they try to fix it.

Q. So if I can play that back to you. One thing they do is

they directly call people who they've identified as A, B or C

ethnicity and they check if they were right; is that true?

A. Yes, because that's the only way to test your hypothesis. I

mean, on a real term.

Q. And another thing they do is they get feedback from the


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companies or the organizations that have hired them, this was

good or this was bad, and they investigate those points of

feedback.

A. Actually they did one more thing. They would go to those

areas they identified as Hispanic or Irish or whatever and they

would test the hypothesis by actually going there and doing a

survey and walking around and looking at people and asking them

questions to make sure that what the research said was

actionable or real. Not all the time. I mean, it's just a

small sample, when in doubt.

Q. You gave the early example the nutshell example earlier of

what Eth Tech does using your own name. Can you give an example

of what they do to match African-American names?

A. It's the same process. But they had databases of people's

naming conventions from Africa and they identify those. Then

they have people with maybe names here, American names that were

more prevalent in the African-American community. From my

ex-wife's name like a Shanekwa or names of that nature, that

tend to be more African-American, and they use those names, and

then they look at names of people who may be European like a

John Smith and they use -- they look at those names and then

they use the geo with that to try to isolate like a Bruce Lee or

a John Smith or a name of that nature to fit the community they

live in to try to differentiate. And again there's an error

involved, it's not perfect, but it helps group the people


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into -- but the accuracy has been pretty good.

Q. How good?

A. I would say 9 out of 10.

Q. And they do that matching at the same time -- or is what

they do to match the names for African-American and Hispanic

individuals done at the same time as they match everyone else in

the database?

A. No, they match everyone else first.

Q. First, before who?

A. Before African-American.

Q. So by the time they do a match on African-Americans they've

already --

A. Pretty small.

Q. What do you mean pretty small?

A. What it means is that it's a process of elimination. So if

they find you to be Polish that means you're not

African-American. So by ruling out other ethnicities or people,

then you're left with the -- you rule out the Africans because

they're identified as African-American but they're African names

or Jamaican or Caribbean or Hispanic, and then you're left with

the Joneses and the Smiths and people like that that could be

multiple. And then they use the geo to find that. Like if

Shanekwa Jones more or less will be ruled as African-American

and you don't have to worry about Jones because you look at the

first name. But if she's Maria Jones it could be.


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MR. FOSTER: I have nothing further at this time.

CROSS-EXAMINATION

BY MR. LENNINGTON:

Q. Mr. Mas, thank you for being here. Thank you for putting up

with our arguments about you.

A. That's okay.

Q. Before you testified during our argument one of the things

Mr. Foster said is that Mr. Mas has no knowledge of what Ethnic

did with Leland Beatty's data. Did you hear him say that?

A. Yes, I did.

Q. Did you agree with that?

A. 100 percent.

Q. Thank you. You used the phrase refine the process, as in

Ethnic Technologies refined the process while you were there.

Correct?

A. Yes.

Q. And you understand that after you left they also refined the

process.

A. They continued to refine the process.

Q. In fact, they refined the process every month or every year?

A. Every day.

Q. Every day they refine the process.

A. Every day.

Q. And when you were there at Ethnic Technologies was in 2007,

correct?


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A. Yes.

Q. And when you were there you were bound by a nondisclosure

agreement; is that correct?

A. Yes.

Q. And you're still bound by a nondisclosure agreement isn't

that true?

A. I'm still bound. But what I've disclosed is public

knowledge, pretty much because everything that I've talked about

is from literature which I actually had distributed at trade

events. And I'm not disclosing anything that's not known.

Q. No, I'm not questioning whether you violated anything.

A. Oh.

Q. My question is this, is that after you left, you were not

there in 2008.

A. Right. But I've kept communication.

Q. But you were not privy to the scientific developments in

2008 because those were still proprietary and confidential as to

the people who worked there. And since you did not work there,

you were not privy to the exact things that were going on at

Ethnic; is that correct?

A. Yeah -- yes and no. Because they publish a data card and

the data card I have is from 2009, and the data card from 2009

basically repeats a lot of the processes or things that they did

when I was there in 2007.

Q. Do you have any data cards from after 2009?


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A. Yes, I do.

Q. And what years do you have?

A. I have 2009. I have something dated 2011 or 2012.

Q. Do those data cards reveal anything proprietary?

A. No. What they do is pretty much what I shared here today.

They share how many names that they use in the database, the

E Tech process.

Q. So tell me, what are you not familiar with? What don't you

know about what Ethnic does?

A. Okay. What I'm not familiar with is the current

day-to-day -- I worked hand in hand with the person while I was

there who actually did the research. Because one of my

customers had a question about a name or something, I would go

sit with that person and share my experience, and he would go

ahead and put -- use that as one of the names he had to review

to make sure that he was accurate.

Q. But as far as their process.

A. Their process has not changed. What they do and what they

continue to do, from my understanding because I've read their

literature that they handled out, is the same thing. It's

what -- maybe I'm confusing two things.

The macro process is the same, meaning that the

overall philosophy of the company as far as looking at first

names first, last names that are -- databases and their rules

and maybe they've gotten more into geocoding, meaning that


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they've done better detailed analysis of people living by

geography through census or other data.

They may use -- they used the census and they use

other data. I don't know exactly what other data they're using

right now per se, but they've added -- I would think that

they've added more data sets to help isolate people and identify

them.

Q. Okay. So what you're saying is that you understand macro

what they're doing. The big picture, in other words.

A. The big picture. The little things in the small picture,

no, because I'm not there.

The other thing that they have done that I'm pretty

sure is that progressively from year to year when they put

out -- back then, they were doing -- they called it E Tech 7.2.

When I left, it was 7.0.

Q. E Tech 7.2 is the name of a software program?

A. Right. That's their iteration. Every year. It's like

Microsoft Office 9, 10, 11.

Q. And is it public knowledge --

A. That's public knowledge.

Q. -- what goes into E Tech 7.2?

A. No, what comes out of E Tech 7.2.

Q. But is it public knowledge how E Tech 7.2 works?

A. The premises that I shared, I have the published data sheet

how it works with how many names they match and those type of


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things. That is public knowledge. What their rules are and how

the software operates internally is not public knowledge. But

how, the premise is public knowledge.

Q. Okay.

A. Not the execution. Okay?

Q. So you are unfamiliar with the current rules of their

software program, correct?

A. No, the -- well, I never sat down with the programmer and he

explained to me how the 3600 rules worked.

Q. So can I ask you this real quick? So you used the phrase --

the word "rules," correct?

A. Yes.

Q. And you used the word "software operating" --

A. System.

Q. -- "system."

A. Right.

Q. Internally, how it operates internally.

A. Yes.

Q. And that is proprietary, correct?

A. Right.

Q. And so you're not familiar with how that works in 2013,

correct?

A. Okay. I want to be clear. The concept of how it works of

looking at a name and deciphering what that name belongs to is

the -- I understand the premise of that. To say I understand


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the programming behind it, I don't. I just wanted to

differentiate between understanding the premise of the concept

of something and the, you know, programming.

Q. So since 2007, would you say that the programming has

changed at E Tech?

A. I think that the programming -- conceptually is probably

evolved just like computers have evolved.

But the premise of looking at the first name first and

looking at the last name and creating a catalogue of names has

improved because they claim to have more names on their data

sets that they can identify. So for instance, they had 900,000

surnames that they identify. Those 900,000 surnames were back

then maybe 800,000. So they've increased names to try to

increase accuracy.

Q. I have a series of questions here about Mr. Beatty.

Have you ever, by the way, met Mr. Beatty?

A. Not until I got here.

Q. Have you ever e-mailed with Mr. Beatty?

A. Never.

Q. Have you ever talked to him over the phone?

A. No.

Q. Have you reviewed his expert reports?

A. No.

Q. Have you reviewed his deposition transcript?

A. No.


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Q. Did you verify whether the race statistics in Mr. Beatty's

report were accurate?

A. No.

Q. Did you perform any analysis of Mr. Beatty's data?

A. Never.

Q. Were you employed by Ethnic Technologies when Mr. Beatty

submitted his data to Ethnic?

A. No.

Q. Do you know who he submitted his data to?

A. Maybe one of three people.

Q. Do you know -- under oath here today, do you know the name

of the person who Mr. Beatty submitted his data to?

A. No. Again, that's confidential information from Ethnic. I

don't ask those questions; they don't tell me.

Q. You are not testifying here today as to the scientific

reliability of the work performed by Ethnic on Mr. Beatty's

data, are you?

A. No.

MR. LENNINGTON: Thank you, Your Honor. That's all I

have.

THE COURT: Okay.

MR. FOSTER: Very brief, Your Honor.

THE COURT: Okay.

REDIRECT EXAMINATION

BY MR. FOSTER:


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Q. Mr. Lennington asked you about the refinement of E Tech's

process over time.

What do they do to refine their process?

A. What they do to refine their process is they look at the

feedback from customers and from there testing their own

hypothesis when they call, when they select names.

And what they do is they go ahead and either make

phone calls or just, you know, sharpen the pencil and try to

figure out where they went wrong and make adjustments.

So the conceptual process has not changed but maybe

the name banks is what's important. If you only know three

names and you can't catalogue everybody, but the more names you

know the more you can dissect the database. And that's

basically what they do is they try to know more names than

anybody else because that's the only way they could survive.

Q. Has the refinement over time changed their numbers of

percentages of reported accuracy that you testified about

earlier?

A. During my tenure their accuracy improved in areas, and in

fact, they've taken names they thought they identified and would

take them off as unidentified and then reassigned them later.

Because what they wanted to do is they wanted to make sure that

any client that mailed wouldn't mail people in error. They'd

rather sell less names and be right than sell more names and be

wrong.


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Q. When you say that the accuracy improved when you were there,

what kind of improvement did you see?

A. Incrementally every day they added names. So over time it

improved in some areas. I think within the African-American it

may have gone up 5 to 10 percent.

Q. In number terms, it improved from what to what in the time

that you are talking about?

A. The Hispanic improved from 89 percent to maybe 94 percent

for Spanish speaking.

MR. FOSTER: That's it. Thank you.

THE COURT: You're excused.


MR. ULIN: Your Honor, our next witness is Mr. Beatty,

whose testimony I expect will be lengthy. And I can't quite

estimate that but I would say anywhere from 90 minutes to

120 minutes.

THE COURT: Do you want to start or do you want to

have lunch?

MR. ULIN: Our preference I think would be to start

after lunch.

THE COURT: Okay. Fine. We'll break for lunch, come

back at -- why don't we come back at quarter to 1:00.

(Lunch recess taken at 11:58 a.m., until 12:54 p.m.)

THE COURT: Are we ready?

MR. ULIN: Yes, sir. Your Honor, plaintiffs call


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Leland Beatty.

THE COURT: Okay.

LELAND BEATTY, PLAINTIFF WITNESS, DULY SWORN

THE COURT: Okay. State your name for the record,

spell your last name. Speak into the microphone.

THE WITNESS: My name is Leland Beatty, last name

B-E-A-T-T-Y.

DIRECT EXAMINATION

BY MR. ULIN:

Q. Good afternoon, Mr. Beatty.

Mr. Beatty, have you been retained as an expert

witness by the plaintiffs in the Jones vs. Deininger case, now

known as LULAC vs. Deininger?

A. I have.

Q. And on what subjects have you been retained to provide

expert opinions to this court?

A. About the number of Wisconsin registered voters that have

matching driver's licenses or state IDs.

Q. And without stating your opinions, have you, in fact, formed

an opinion on that subject to offer to this court?

A. Yes, I have.

Q. Before we turn to your opinions, I'd like to discuss your

qualifications to offer them.

Mr. Beatty, what do you do for a living?

A. I'm a statistical marketing consultant. Primarily,


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especially in even-numbered years, I work for political

campaigns, and primarily in odd-numbered years I work for

companies that do direct marketing.

Q. And how long have you worked as a consultant in those

fields?

A. Off and on most of my life. In this particular role, for

the last 12 years.

Q. Since 2000; is that correct?

A. Since 2001.

Q. 2001. And is your work as a political and marketing

consultant your only employment?

A. Yes.

Q. And has that been true since 2001?

A. Yes.

Q. What sorts of clients do you work for as a consultant?

A. I work for a wide variety of clients: insurance companies,

big-box retailers, political campaigns, organizations that raise

money. A wide variety.

Q. Over the course of your 12 years as a consultant, how would

you break down the percentage of your work done for each type of

client you just described?

A. If we were to measure it in dollars, probably 60 percent of

it is commercial marketing and 40 percent political campaigns or

organizations that raise money.

Q. And if you measured it in terms of the number of clients you


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serve, how would that break down?

A. There are many more clients on the political and

organizational side. There is a dozen or so on the marketing

side.

Q. And if you measured your -- the amount of time you -- ask

the question again.

If you measured based on how much time you commit to

each type of client, how would you break that down?

A. I've got 80/20 in favor of campaigns and organizational

work.

Q. Can you name some of the big-box retailer clients who you

work for?

A. I've worked for Best Buy, for -- let me see if I can

remember them all -- Sony retail outlets, to name two.

Q. What sort of consulting work have you done for big-box

retailers?

A. Primarily understanding where their retail base is. If

these were two electronics -- primarily electronics retailers.

And so we were looking for customers within their market area

that were likely to spend money on electronics.

Q. And how do you accomplish that?

A. A wide variety of things. Customer records. I take the

customer records, I combine them with other data, and I build

marketing models.

Q. You're doing statistical analysis?


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A. Right.

Q. Can you name some of your insurance company clients for the

Court?

A. I'm not necessarily sure of who the individual clients

always are. Eldercare, which operates in the five boroughs of

New York City, is my primary insurance company client.

Q. And what sort of work have you done for Eldercare?

A. Primarily finding customers for Medicare Part B.

Q. And what do you do in order to accomplish that?

A. I build statistical models trying to find people that

primarily aren't likely to have pension plans that provide

Medicare Part B.

Q. And what sorts of data do you analyze to build those

statistical models?

A. Much of the data comes from Experian or Acxiom. I take that

data, I geocode it, understand how customers concentrate up, and

try to build a model that will produce them better results than

the last time.

Q. And what sorts of information about those customers are you

reporting back to your clients?

A. They give me the actual purchasers from the last round as

well as the prospects from the last round. I take that, add

data to it, and then build the model.

Q. What sorts of political candidates have you worked for?

A. I've worked for statewide elected officials, for legislative


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627

candidates, for congressional candidates, for county judge

candidates, county commissioner, city council, school board.

Pretty much at every level.

Q. Do your political candidate clients tend to fit into one of

those categories more than others?

A. No. They're widely spread.

Q. Do you tend to represent Democrats more often or Republicans

more often?

A. I represent Democrats more often but not exclusively.

Q. Was that true in the 2012 campaign season?

A. During the 2012, I had clients from both parties.

Q. And can you give an estimate with respect to how many of

those were Democrats and how many were Republicans by

percentage?

A. In the spring during the primary season, they were about

60 percent Republican. In the fall for the general election,

they were 90 percent Democrats.

Q. What sort of work do you perform for your political

candidate clients?

A. I build much the same kind of market models. We build a

turnout model so that we understand who is going to vote no

matter what, who needs a little push to go vote, and who is

unlikely to vote at all.

We household that together, build household dynamic

models so we can see who the dominant voter in the household is,


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who the secondary voters are, and how we maximize the return out

of the household.

Q. And how do you accomplish that analysis?

A. I have a lot of variables on every household, everything

from everybody in the household, likely household income, voting

history, ethnicity, age, the gender type of household, is it a

male-female household, is it male only, is it female only, is it

a single-voter male, single-voter female. And we add then

neighborhood information and try to cluster it in such a way

that it gives us the best results.

Q. Do you also try to provide your political candidate

clients -- do you also try to provide your political candidate

clients with information about the races of the clients?

A. Absolutely. Yes.

Q. And why do you do that?

A. It matters a lot in terms both of their likely preference.

I also build preference models: Who is going to vote Republican

no matter what. Who is going to vote Democrat no matter what.

Who is going to vote straight ticket out of those. And then who

is persuadable. And among the persuadable people, which ones

are likely, once they're persuaded, are they persuaded at a

party level or are they persuaded at what we call a ballot

position. You know, at the top of the ballot they may vote one

way, the middle of the ballot they may vote another way, and at

the bottom of the ballot they may go back to their original


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629

preferences, as an example.

Q. Can you estimate for the Court how many political candidates

you work for in a given election year?

A. Maybe 20, 25, 30, something like that.

Q. Is that only even-number election years or is that every

year?

A. That's even-numbered election years. In odd-numbered

election years, it's much smaller.

Q. And these candidates are relying on your analysis for

information they hope will allow them to sway the outcome of an

election; is that correct?

A. Yes. They want to win.

Q. Do you also work for the proponents of initiatives or issue

campaigns?

A. Occasionally, yes.

Q. And can you give the Court some examples of issue campaigns

that you've worked for as a consultant.

A. Affordable housing, building a train from Milwaukee to

Chicago, a wide variety of issues.

Q. What sort of analysis do you perform for the proponents of

initiatives or issue campaigns?

A. I do survey work. It plays a role in every kind of

campaign. But we call people, we know who they are, we ask them

a small set of questions, and then use that. Typically I'll get

1,000 to 5,000 responses to five to seven questions and use that


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then to build regression models showing likely preference all

through the entire voter file.

Q. Do you also analyze data on individual voters that exists in

databases that have already been created?

A. Yes.

Q. You mentioned that you do work for organizations that are

seeking insight into the political process. What sort of

organizations are those?

A. Let's see. I've worked for the Mexican American chamber of

commerce. I've worked for religious organizations, for --

Sierra Club and other kinds of environmental organizations, for

economic development organizations.

Q. What sort of work do you do for organizations that are

seeking insight into the political process?

A. Typically they have an election interest or they have a

fund-raising interest. Sometimes they have both. If it's fund

raising, we try to identify from an existing base of donors who

else out there is most like the people we already know were

giving and match that to the type of appeal that those givers

respond to.

Q. And how do you perform that analysis?

A. Pretty much the same way. We use a lot of data. We use

survey responses and build regression models from that.

Q. And roughly how many organizations seeking insight into the

political process would you say that you represent as a


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631

consultant in an average year?

A. Two or three.

Q. And with respect to issue campaigns or initiatives, how many

of those would you say you represent in an average year?

A. In an average year, less than one.

Q. How many would you say you've represented over time?

A. Maybe a dozen to 15.

MR. ULIN: I'd like to show the witness what has been

marked as the Jones Plaintiffs' Exhibit 2.

Your Honor, would it help if I hand one up to the

Court as well?

THE COURT: We should have our books.

(Discussion off the record.)

MR. ULIN: Shall I continue?

THE COURT: Yeah, please do.

BY MR. ULIN:

Q. Mr. Beatty, turning to the back page of Exhibit 2 --

A. Yes.

Q. -- do you -- first of all, what is this that's printed on

the back page of Exhibit 2?

A. It is my resume.

Q. And is this a current resume?

A. Yes, it is.

Q. And you prepared it?

A. Yes.


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Q. And the top entry on your resume, does that reflect your

consulting work which we've been discussing?

A. Yes, it does.

Q. In your description of that work, you indicate -- excuse

me -- that part of what you do involves voter participation and

preference modelling. Do you see that?

A. Yes.

Q. What does that mean?

A. As I was just explaining, we tried to take available data,

we try to gather survey data, and we tried to predict voter

behavior both in terms of set behaviors and the degree to which

a person's voting behavior may be changeable.

Q. And is that what you refer to as predictive modeling, in the

text by the first bullet?

A. Yes. Predictive analytics is, I think, the general term for

what this work is called.

Q. And if I were to ask you what predictive analytics means,

you would give me the same answer you just did?

A. Yes, I would.

Q. You indicate that in your -- in the past four election

cycles the actual results have varied less than 2 percent from

predicted results. Do you see that?

A. Yes.


A. When we model it up and we plan a campaign, we come with


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a -- down to a likely outcome. To the extent that we execute

the plan, the results have not varied more than as much as

2 percent in the last four cycles.

Q. What sort of data do you analyze to advise your clients in

connection with your predictive analytics work?

A. We begin with a voter file so that we have a picture of all

the voters. We sometimes depending on the case also have a file

of households that have no registered voters because sometimes

we need to increase the electorate.

We begin with that voter file, we append data to it,

and then do different statistical practices, regressions,

repeated measure ANOVAs to try and come to an understanding of

what their likely behavior is going to be, what they're going to

respond to, or whether or not they're going to respond.

Q. Just to be clear, you have had occasion in this analysis,

and it sounds like frequently, to analyze voter registration

data.

A. Yes.

Q. Have you also had occasion to analyze data from driver's

license or state identification card files?

A. Recently, yes.

Q. Other than in connection with this case?

A. In Texas, yes.

Q. And have you analyzed information from other public data

sources in connection with your predictive analytics work?


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634

A. Yes.

Q. What sorts of data sources?

A. I take property tax records, alumni association membership

lists, union membership lists, professional organization

membership lists and try to integrate all of that into a useful

database.

Q. Who are some of the political candidates that you have

helped to win elections over the past four cycles?

A. I'm trying to pick someone you might know. But in -- I wish

I could remember all of the Milwaukee candidates. But the

fellow who was president of the school board here for several

terms. City council candidates. But people running for higher

office, lower office, congressional candidates. Not many of

them are household names, but if they're in your district you

might recognize them.

Q. You mentioned earlier that in connection with your political

consulting work you've had occasion to analyze the racial

breakdown of voters; is that correct?

A. Yes, uh-huh.

Q. What data do you use to analyze racial breakdown?

A. Typically if I have my choice I will use the Ethnic

Technologies racial appends, whether we get them directly from

Ethnic Technologies or from Acxiom or Experian or someone that

is a secondary vendor of Eth Tech's work.

Q. You say if you have your choice you would use Ethnic


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Technologies to analyze the racial breakdown of a group of

voters, why is that?

A. I have found it to be highly superior and very reliable and

we know this because of the feedback we get.

Q. What do you mean by the feedback?

A. It's important that the mail go to the appropriate audience.

It's easier to get away with sending mail intended for white

voters to African-American households. That's not what we want,

but if we send mail intended for African-American households to

white households we get a lot of feedback.

Q. Are you familiar with other companies that provide -- let me

ask a different question.

Are you familiar with how Ethnic Technologies analyzes

the racial makeup of a group of people?

A. Yes.

Q. And how have you learned that?

A. Both directly from Ethnic Technologies and from wide reading

in the practice of using available data to identify race at the

individual level.

Q. We'll come back to this in some detail later in your

examination but can you briefly describe for the Court how

Ethnic Technologies analyzes the racial makeup of a group of

people?

A. I provide them with a file that has the first, middle, last

names and either a complete address or I may geocode the file


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myself and provide latitude and longitude for each voter.

Q. And what do they do with that information to give you

information about the racial breakdown of a group of voters?

A. They run it through their system and return the file to me

with a set of variables appended to it.

Q. And what are those variables?

A. Likely country of origin. Likely race. Likely language.

Likely religion. And gender.

Q. And based on your familiarity with Ethnic Technologies, your

review of their materials and your review of the literature

concerning that company and its processes, how do they arrive at

the information that they provide you about the individuals?

A. They use a system that breaks out each part of a person's

name so that they have a mini database that's built up over a

long period of time where they understand name prefixes, middle

parts of last names, name suffixes that are highly predictive of

country of origin. They begin with the first name. The first

name is very indicative of the cultural values of the namer of a

person. Typically parents. So they begin there and where there

are names that are only found in one particular type of -- one

particular race, that's gonna be determinative. If the first

name is not determinative they move to the last name where they

literally parse it apart syllable by syllable and understand

what that name means, what its derivation is, and what country

of origin it was likely from.


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Q. And is there other information beyond first and last name

that goes into that analysis?

A. Yes. If it's still not decisive they use the middle name

which like the first name is very indicative of the cultural

values of the namer. If we're still uncertain we look at that

actual latitude and longitude, put it in a block, and understand

if it is predominantly, overwhelmingly, marginally one race or

another.

Q. And when you say that latitude and longitude, what do you

mean by that?

A. It's -- latitude and longitude is a way of measuring a

particular spot on the earth. And if you know the latitude and

longitude you can place it right into a neighborhood.

Q. You mean of the individual's residence.

A. Yes.

Q. And when you say in a certain block what do you mean by

that?

A. A census block in urban areas is often literally a city

block. In rural areas it may cover a wider expanse, but mostly

in urban areas it's close to an exact city block.

Q. And is there information available about the racial

demographics of the residents of a census block?

A. Yes, there's both census data, there's commercial data, but

also we aggregate the voter file itself to understand the voter

makeup in that block.


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Q. Is it common practice in the field of political consulting

to rely on firms like Ethnic Technologies to provide information

about the ethnicity and race of voters?

A. It's becoming more and more likely. I would not call it an

absolute standard yet but among consistently successful

campaigns it certainly is a standard.

Q. Are you familiar in addition to Ethnic Technologies with

other companies that provide a similar service?

A. Yes.

Q. And what are those if you can tell the Court?

A. Well, I believe it's CPM Technologies is the primary

competitor, CPG, which uses a very similar system, but does not

quite have the reputation that Ethnic Technologies does.

Q. So that was going to be the next question I asked you, is

there one company in the field that is recognized as the market

leader?

A. That is Ethnic Technologies, yes.

Q. And why are they recognized as the market leader if you

know?

A. They were first in the market and they've consistently

provided superior results.

Q. And when you say superior results what do you mean by that?

A. I mean that we're able to rely on that data as in our work

to do our predictions. To put it into the mix of things that

create predictions for voter behavior.


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Q. Did you rely on Ethnic Technologies to assist you in your

analysis in this case?

A. Yes, I did.

Q. Turning back to the back page of Exhibit 2 for a moment.

Prior to your work as a political consultant have you had other

jobs that involved statistical analysis or predictive analytics?

A. Yes.

Q. And what are those?

A. Well, at Texas Rural Communities, which is a foundation

created during the Great Depression with a mandate to intervene

in dysfunctional markets in favor of the dispossessed. We ran a

number of programs there where we used data analysis to tell us

are we, in fact, hitting a mark, are we making a difference,

what's the economic result of the work that we're doing.

Q. Were you the person primarily responsible for that data

analysis?

A. I was.

Q. And was data analysis one of the principal parts of your job

at Texas Rural Communities?

A. It was among the principal parts of my job.

Q. Did you do any -- anything for Texas Rural Communities that

involved the analysis of elections or voter behavior?

A. Yes.

Q. I'm sorry, please.

A. We often helped rural communities pass economic development


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taxes, hospital taxes. These would be elections and we would

help them try to pull their resources together and plan --

succeed at that.

Q. Toward the bottom of your resume you list your educational

history.

A. Yes.

Q. And you indicate that you have an MBA from the University of

Texas at Austin at the McCombs School of Business; is that

correct?

A. That is correct.

Q. In what year did you obtain that MBA?

A. In 2003, I believe.

Q. And what was the focus of your MBA studies?

A. Statistical marketing.

Q. And why did you undertake an MBA in 2003 so late in your

career?

A. I had polio as a child and experienced a mid life situation

that I could no longer do the kind of traveling and appearance

making that I once could do. I needed to find something that

was not quite as physically strenuous.

Q. Mr. Beatty, have you received any awards or recognition for

your work as a predictive analytics political consultant?

A. Yes.

Q. Could you tell the Court what those are?

A. Well, in 2010 a national trade journal called Campaigns and


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Elections, which is the trade journal for campaign

professionals, said I was the seventh most influential Democrat

in the state of Texas.

Q. And Mr. Beatty, have you served as an expert witness in

litigation before?

A. No.

Q. Have you ever testified at trial before today?

A. Yes.

Q. In what context?

A. Well, in family law. At Texas Rural Communities we often --

we had an active loan program, sometimes there were

foreclosures.

Q. Let me pose the question differently. Have you testified as

an expert witness at trial before?

A. No.

Q. Beyond this case, have you ever provided any prior analysis

of the effect of the voter ID law on voters of color in any

state?

A. Yes.

Q. And can you explain that to the Court, please.

A. In the State of Texas.

Q. And would you explain your analysis of the voter ID law in

the State of Texas to the Court?

A. We had very restrictive data at the time. We had really

gross numbers, first at just the county level and then broken


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down by part of counties, often by county commissioner,

precinct, every county's got four county commissioners and the

county is divided up that way. And so we had the number of

people that matched by race, by either Latino or not Latino, for

each of those. And we also combined that with a lot of census

data to understand what the likelihood was that there was a

disparate impact by race.

Q. In the sense that a person might or might not have a

qualifying identification?

A. Because we have a -- I use a complete statewide voter file,

I was able to see how many registered voters, by race, there

were in each of these areas and compare that to what the

information the state provided about the number that had

matching IDs.

Q. And did you conclude that there was a disparate impact on

Latino voters in the state of Texas?

A. Yes.

MR. ULIN: At this time, Your Honor, I would proffer

Mr. Beatty as an expert on voter demographics and behavior

elections research predicted analytics and statistical analysis.

THE COURT: You can certainly continue to question

him.

MR. ULIN: Fair enough.

BY MR. ULIN:

Q. Mr. Beatty, what were you asked to analyze in this case?


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A. To determine the number -- the match rate -- how many voters

had a matching driver's license or state ID.

Q. Mr. Beatty, as part of your work in this case is it correct

that you issued an expert report in the form of a declaration?

A. Yes.

Q. And you issued that report in and of 2012; is that correct?

A. Yes.

Q. And is it also correct that you supplemented your report in

the form of two additional declarations twice during the course

of the litigation?

A. Yes.

Q. And the first time was in June of 2012; is that correct?

A. That's right.

Q. And then the second time was in October of this year 2013,

correct?

A. Yes.

Q. You have before you what's been marked as Jones

Plaintiff's Exhibit 2. Is that a true and correct copy of your

original expert report or declaration in this case?

A. Yes.

Q. And at page 14 of Exhibit 2, is that your signature on the

signature line?

A. Yes, it is.

Q. And does this report contain your original expert opinions

in this case?


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A. Yes, it does.

Q. I'd like to place before the witness what has been marked as

Exhibit 202 in the Jones case. Mr. Beatty, do you recognize

Exhibit 202?

A. Yes, I do.

Q. Is this the rebuttal declaration that supplements your

original expert report which you signed during June of 2012?

A. Yes, it is.

Q. And turning to page 8 of Exhibit 202. Is that your

signature on the signature line?

A. Yes, it is.

Q. And does Exhibit 202 represent a declaration that contains

supplements to your expert opinions that you intend to offer in

this case?

A. Yes.

Q. Finally I'd like to put before the witness what has been

marked as Exhibit 817 in the Jones case. And Mr. Beatty, do you

recognize Exhibit 817?

A. Yes, I do.

Q. And is Exhibit 817 a true and correct copy of the

supplemental declaration that you signed in this case in October

of 2013?

A. Yes, it does.

Q. And does Exhibit 817 contain additional opinions that you

intend to offer as an expert in the litigation?


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A. Yes, it does.

MR. ULIN: Your Honor, I'd like to move the admission

of Exhibits 202 and 817.

THE COURT: Okay. So ordered.

BY MR. ULIN:

Q. Mr. Beatty, did you form any opinions on the basis of your

analysis of data in this case?

A. Yes, I did.

Q. And what opinions did you form?

A. That Hispanic voters, Asian voters and African-American

voters were substantially more likely to be without a matching

driver's license or state ID than white voters.

Q. And when you say that you mean in the State of Wisconsin?

A. Yes.

Q. And when you say to be without a matching state ID or

driver's license what do you mean by that?

A. I mean that the information -- the personal information, the

identification information in the voter registration matches the

personal identification information in the driver's license or

state ID.

Q. And we'll come back to that in some detail. Did you perform

an analysis to determine the overall numbers or percentages of

voters who lack matching driver's licenses and photo

identification cards in Wisconsin?

A. Yes. Yes, I did.


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Q. And did you also analyze the percentages of white voters who

lacked matching drivers licenses or photo identification cards?

A. Yes, I did.

Q. Did you also analyze the numbers and percentages of black

voters who lack matching identification cards or driver's

licenses?

A. Yes, I did.

Q. Did you also perform an analysis of the numbers or

percentages of Latino voters who lacked matching drivers

licenses or state identification cards?

A. Yes, I did.

Q. And finally, did you -- well, let me leave it there for the

moment.

What was your conclusion in and of 2012 with respect

to how the numbers of black voters lacking matching driver's

licenses or photo identification cards compared to the numbers

of white voters who lacked similar identification?

A. African-American voters were 1.7 times as likely as white

voters to not have a matching driver's license or state ID.

Q. And what was your conclusion with respect to the comparison

between the numbers of Latino voters in the State of Wisconsin

who lacked matching driver's licenses or photo identification

cards as compared with white voters who lacked similar

identification?

A. As I recall it was about 2 1/2 times as likely as white


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voters to be without a matching driver's license or state

identification.

Q. Mr. Beatty, what data did you use to perform your analysis

of the numbers and percentages of people who lacked matching

identification?

A. I began with what we call the state voter file or the list

of all of the registered voters in the state, their names, their

birth dates, their addresses, their voting history. There may

have been a couple of more things in that file but those were

the primary variables that we used.

Q. Did you also use driving license and state ID records from

the Wisconsin Department of Motor Vehicles?

A. Yes. Two additional files, one a complete list of Wisconsin

residents with drivers licenses and the complete list of

Wisconsin residents that possessed a state ID card.

Q. And it may assist you or it may not to turn to Paragraph 16

of Exhibit 2 in responding to my next question. Can you provide

a brief overview for the Court of the process by which you

determined whether registered voters had matching driver's

licenses or state identification cards?

A. Yes. The first thing that we did was to dry and create

unique identifiers for each voter. And we did this by putting

together strings of personal information and we tried to get to

the place where we really had an insignificant or as small as

possible number of duplicates in that. So we really had unique


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identifiers for each and every person in the voter registration

file, for each and every person in the combined state driver's

license file and the state identification card file.

Q. And then having created those matching strings what did you

do next?

A. We ran a match. We ran a database match to count how many

of those voters had a matching driver's license or state ID at

that match string.

Q. And how many levels were there to your analysis?

A. Three.

Q. Can you describe them briefly for the Court, please?

A. Yes. The first one used the voter's first name, last name,

date of birth, residence, county and ZIP code. Because we found

that we had the smallest possible number of duplicates at that

level. That was the strongest unique identifier at the top

level. After we conducted that match we removed everyone that

had matched at that level because it gave us a better chance

with a smaller -- with fewer variables in the string at having

unique records because that first level matched enough when we

took those out we could use a shorter string and still have

integrity to the unique identification.

Q. And what was the information that you used in the second

level match?

A. The voter's first name, last name and date of birth.

Q. And once that second level match was completed, what did you


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do next?

A. Then if the voter's last name, date of birth and ZIP code

matched uniquely, that was the third level.

Q. And that's, in rough terms, the entire matching process; is

that correct?

A. Yes. There were incidental parts to it where we hand

matched, we tried to understand anomalies and hand matched those

and further reduced the numbers.

Q. Let's talk for a moment about creating the matching strings.

And you may want to look at Paragraph 15 in Exhibit 202 in

responding to my next question.

A. Uh-huh.

Q. What fields of information were available to you in creating

the matching strings?

A. We knew first name, middle name, last name, gender, date of

birth, this is in the driver's license file, date of birth,

race, ZIP code, county name, current driver's license or state

ID number, the date of issuance of the driver's license or state

ID, the date of expiration and the current driver's license or

ID status.

Q. And in creating a matching string -- let me ask you another

question first. Was that same information available to you in

the state identification card files?

A. Yes. And we combined the driver's license and state

identification file and reduced that down to unique records so


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that those that had both weren't represented twice.

Q. Individuals who had both the state identification card and a

driver's license were not double counted in other words.

A. Right.

Q. And in creating the matching strings why did you begin with

the DMV files?

A. It was the file we needed to match to. It had the largest

number of records and we wanted to create as strong a unique

string as we possibly could.

Q. Can you describe for the Court the process of using the

information from the DMV files to create a matching string and

in your response you may or may not choose to look at

Paragraphs 18 to 22 of Exhibit 2.

A. We began with ID string 1 because only 13 out of the

4,394,000 driver's license and state ID holders, only 13 had

identical strings with at least one other person.

Q. Could you remind the Court what ID string 1 consists of,

please?

A. Yes, it's the voter's first name, last name, date of birth,

residence county, and ZIP code.

Q. And is it correct that with regard to ID strings 2 and 3 you

simply eliminated fields of data from the ID string to focus the

analysis on a shorter ID string?

A. Yes.

Q. What fields of information were available to you in the


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Government Accountability Board's voters registration files?

And here you may choose to look at Paragraph 24 of Exhibit 2.

A. There was an administrative ID number, first name, middle

name, last name, name suffix, date of birth, a state ID number,

a voter registration number, 13 address variables where the

address was broken out into each part, block number, block

number fraction, street prefix, and so on. So there were 13

variables containing address information. ZIP code, five voter

status variables including current status, status reason,

application source, application date, and effective date.

There were 23 jurisdictional and district variables

including county, ward, assembly districts, court districts, and

municipalities. There was a field for phone, for a phone

number, although it was not well populated, a binary field on

whether someone was a permanent absentee, and 22 election

participation variables showing whether or not people had voted

in each election since 2006.

Q. I want to talk a little bit more about how you used the data

in the DMV and GAB files to calculate the percentages of

registered voters who lacked a matching ID. You talked about

creating ID strings by matching parameter.

What did you do next, once you had created the ID

strings, to prepare the data for the matching?

A. Well, in each file we tried to count the number of

duplicates there were with that ID string. We treated those


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that were duplicates differently because if there were three

voters with an identical string but just one driver's license,

you didn't want to count all three voters as having a driver's

license because only one of them did.

Q. Because it was the same person; is that correct?

A. Well, these may be three different people over here and you

didn't want to say all three of them were going to use this same

driver's license. Once we got ahold of those duplicate counts

then we ran the match, how many people in the voter file

uniquely matched a driver's license or a state ID.

Q. Before we get there, at Paragraph 26 of Exhibit 2, you

indicate that for ID string 1, the string that included five

variables, your data sort uniquely identified 99.9 percent of

registered voters and 99.9 percent of driver's license or ID

holders. Do you see that?

A. Yes.


A. I mean that there were very, very, very few duplicates.

That this string was truly unique. In 99.9 -- and you could add

a bunch more 9s to that -- percent of the time, that was the

only voter, the only driver's license or state ID holder with

that ID string.

Q. And in the next paragraph you indicate that for ID string 2,

first name, last name, and date of birth, that string uniquely

identified 99.7 percent of registered voters and 99.9 percent of


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driver's license and ID holders. What do you mean by that?

A. Again, once we take out the people that matched before, we

look at it again and we say how many unique individuals does

this string identify? In 99.7, it's not as good as 99.9 but

it's still the strongest string we had in the file.

Q. The same question then for ID string 3, which is the last

name, date of birth, and ZIP code.

A. This one uniquely identified 99.4 percent of registered

voters and 99.5 percent of driver's license and ID card holders.

Q. And is it true that in each instance at each level of your

analysis you were looking for the ID string that had the highest

percentage of uniquely identified individuals?

A. Yes.

Q. Now if you would, please describe the matching process.

A. The matching process is pretty straightforward. We would

create a match between the two databases based on that string.

If they matched uniquely, there weren't more than one in the

voter registration file, not more than one in the driver's

license file, then we counted that as a voter having a matching

driver's license or ID card. We marked that, we separated them

out from the voter file, and continued at the next level with

the remaining voters and driver's license and ID holders.

Q. So looking at Paragraph 32 of Exhibit 2.

A. Yes.

Q. What was the result of the first-round match of voters by


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first name, last name, date of birth, residence county, and ZIP

code?

A. 71.8 percent of registered voters matched at least

one driver's license or ID record on that string, leaving

916,505 voters unmatched.

Q. And for the 2,338,535 voters that did match, they were

removed from the analysis before the second-round match; is that

correct?

A. Yes.

Q. And with respect to the second-round match of first name,

last name, and date of birth, turning to Paragraph 37 of

Exhibit 2, what was the result of that matching process?

A. After that round completed, we now had matched 87 percent of

registered voters, leaving only 432,796 left.

Q. And did you remove from the pool of voters for further

matching the roughly 485,000 voters that were matched in

Round 2?

A. Yes. We removed them both from the voter file and the

matching driver's license or state ID holder from that file.

Q. And then with respect to the third-round match of last name,

date of birth, and ZIP code, turning to Paragraph 41 of

Exhibit 2, what were the results of that match?

A. 76,283 voters matched on ID string 3, leaving 356,512 voters

unmatched to a driver's license or ID holder.

Q. And after those three rounds of matching were completed, did


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you attempt further matching efforts with the remaining names in

the DMV and GAB databases?

A. We tried to find additional strings that were shorter but

still would provide us with a high level of confidence that we

were matching unique voters to unique driver's license and ID

holders. We were not able to find a significant match below

that level that didn't produce a lot of duplicates.

Q. Did you actually match a number of voters through other

matching processes in your effort to find a fourth-round match?

A. We went through and we tried to identify anomalies in the

file, phantom characters. We tried to make sure that we got the

maximum match, and that was the hand matching part, trying to

find an additional way that we could show additional matches.

Q. And did you actually find additional matches through that

process?

A. A few.

Q. And were they added to your numbers of voters who matched

or, put another way, removed from the numbers of nonmatchers?

A. Yes.

Q. Did you undertake to determine the racial breakdown of the

356,000-plus voters who you identified as nonmatching?

A. Yes, I did.

Q. And how did you try to accomplish that?

A. I prepared the file and submitted it to Ethnic Technologies

for its ethnicity match.


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Q. And here's one of the few questions I did not ask you about

earlier. Is Ethnic Technologies a company who you have used

frequently in your professional work?

A. Yes.

Q. How often would you say you have used Ethnic Technologies?

A. Either directly or indirectly on a dozen or more occasions.

Q. And each time has that been for the purpose of identifying

the racial or ethnic breakdown of a group of voters?

A. Yes. And in one case, language.

Q. You mentioned, Mr. Beatty, that you prepared data for

submission to Ethnic Technologies. What do you mean by that?

A. I created a clean file with -- and I'm not sure it says here

and I don't remember myself. Typically, though, I will have the

first name, middle name, last name, latitude, longitude of the

residence. Sometimes I will include the address variables,

depending on my confidence in the geocode.

Q. To the best of your recollection, did you provide Ethnic

Technologies with the first, middle name, if available, last

name, and a geolocation of each of the 350,000-plus nonmatching

voters who you presented to them in this case?

A. Yes. Yes, I did.

Q. Did you do the geolocation yourself?

A. Yes.

Q. How did you do that?

A. I used a program called ArcGIS, which is a geodemographic


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economic analysis program. At its basic level, it will provide

very accurate geocoding of virtually every address in the

country.

Q. And what did you direct Ethnic Technologies to do with the

data that you provided to them?

A. Provide ethnicity and race matches for these voters.

Q. And did they do that for you?

A. They did.

Q. And what did Ethnic Technologies tell you about the racial

breakdown of the Wisconsin registered voters who you identified

as lacking matching driver's licences or identification cards

based on your analysis in and 2012?

A. In the aggregate or at -- what was the actual data they

appended?

Q. Yes.

A. They appended those country of origin, ethnicity, race,

religion, gender.

Q. And in the aggregate, turning to Paragraph 45 of Exhibit 2,

what did Ethnic Technologies tell you about the racial breakdown

of the nonmatching voters that you submitted to them in

and 2012?

A. That as a share of voters without a matching driver's

license or state ID, 15.8 percent of Asians did not have a

matching driver's license or state ID, 16.2 percent of

African-Americans, 24.8 percent of Hispanic registered voters,


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5.6 percent of Native American registered voters.

The other category, there is no other reference for

that because they did not match or had some -- something other

than the five races included in the Wisconsin driver's license

file. And 9.5 percent of white voters did not have a matching

driver's license or state ID.

Q. And that's the information reflected in the far right-hand

column of the table reprinted at Paragraph 45 of your

declaration?

A. Yes.

Q. And is that the information that enabled you to form your

opinion in and of 2012 that black voters were 1.7 times as

likely as white voters to lack a matching driver's license or

state identification card?

A. Yes, it is.

Q. And is that the same information that allowed you to form

your opinion in and of 2012 that registered Latino voters were

2.6 times as likely as white voters to lack a driver's license

or state identification card?

A. Yes, it is.

Q. Mr. Beatty, what have you done to learn how Ethnic

Technologies' racial identification process works?

A. I've read extensively in the academic literature on how name

and geographical-based racial identification works.

Q. Did you also read materials published by Ethnic Technologies


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that describe their process?

A. Yes.

Q. And did you describe any of the information that you

reviewed to inform yourself about Ethnic Technologies in your

expert opinions in this case? Excuse me. In your expert

reports in this case.

A. I believe I did.

Q. And I'll direct you to Exhibit 202.

A. Yes. Not in this one.

Q. No. Exhibit 202 --

A. 202, yes.

Q. -- page 7, Paragraph 21.

And Exhibit 202, just to refresh everyone's

recollection, is your supplemental declaration of June the 27th,

2012; is that correct?

A. Yes.

Q. And one of the items that you indicate you looked at was

Ethnic Technologies' own detailed explanation of its methodology

for determining ethnicity. Do you see that at Footnote 2?

A. Yes.

MR. ULIN: I'd like to put Exhibit 74 before the

witness. I'm sorry. This is Jones Plaintiffs' Exhibit 74.

THE COURT: Okay.

BY MR. ULIN:

Q. Mr. Beatty, is Exhibit 74 the information from the Ethnic


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Technologies website that you reviewed that described the

process by which Ethnic Technologies' ethnic identification

system operates?

A. Yes, it is.

Q. And again, this is information that you cited in the

declaration disclosed to the State of Wisconsin in June of 2012;

is that correct?

A. That's correct.

Q. And you also indicated that you reviewed certain literature

confirming the accuracy of Ethnic Technologies' methods; is that

correct?

A. That is correct.

Q. And one of those was a study done by the National Cancer

Institute; is that correct?

A. That's correct.

MR. ULIN: I'd like to put Exhibit 75 before the

witness, please. I'm sorry. This is Exhibit 212. I was

looking at the deposition exhibit numbers and I think I got

matters confused. The previous -- sorry. The previous exhibit

which I identified as 74 is actually 211, and I had mistakenly

referred to it by its deposition exhibit number. And I

apologize to the Court.

THE COURT: Okay. So it's 211 and 212?

MR. ULIN: Yes, sir.

THE COURT: Okay.


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BY MR. ULIN:

Q. Mr. Beatty, is Exhibit 212 the National Cancer Institute

study to which you refer at Paragraph 21 of your declaration?

A. Yes, it is.

Q. And is this -- well, is this one of the documents that you

read to confirm for yourself both how Ethnic Technologies'

ethnic identification process operates and how reliable that

process is?

A. Yes.

Q. What did you learn from the National Cancer Institute study?

A. That the process was highly accurate in identifying white

persons in their survey; that in some cases it equaled or

exceeded the reliability of personal contact; however, it had a

tendency to underidentify African-Americans.

Q. What was the accuracy reported in the National Cancer

Institute study regarding either Latinos or Asian-Americans?

A. They were very, very close. The difference is within the

tolerance for multiracial persons.

Q. And with respect to African-Americans, can you explain what

you just informed the Court about the tendency to undercount the

numbers of African-Americans?

A. Yes. Because African-Americans often have names exactly

similar to Caucasians and as time has passed assimilate more and

more into formerly all-white neighborhoods, there was a tendency

to underidentify African-Americans.


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Q. Is there a statistic that's associated with that tendency to

underidentify?

A. About 10 percent.

Q. And in what year was the National Cancer Institute study

published?

A. As I recall, it was published in 2007. Let's see. I'm sure

there's a date on here.

Q. Look at the top right-hand corner --

A. Yes. July 2007.

Q. And I believe we heard some testimony earlier when Mr. Mas

was on the stand about improvements in the Ethnic Technologies

method and system. Do you recall that?

A. Yes. Version 7 had not yet been released, which included

extraordinary improvements in first names.

Q. Could you describe for the Court what the differences

between Version 6 of Ethnic Technologies' system and Version 7

which was implemented after the National Cancer Institute study

was published?

A. In Version 7, the first name took dominant priority rather

than last name because Ethnic Technologies had built a much

larger database of racial -- racially unique first names.

Q. And what effect did that have on the accuracy of Ethnic

Technologies' results, if you know?

A. Overall it significantly improved those results.

Q. And how do you know that?


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A. I have been using Ethnic Technologies for many years.

Q. Is that also reflected in your review of the professional

and scholarly literature in the area?

A. Yes. Now, the process in most of the academic literature is

not identified specifically with the Ethnic Technologies brand

name but describes what we call the onomastic process.

Q. And before we turn to some of that literature, Mr. Beatty,

the National Cancer Institute study, that's the study that you

refer to in Paragraph 21 of your declaration which is

Exhibit 212; is that correct?

A. Yes.

Q. And that's information that you provided to the State of

Wisconsin in June of 2012, correct?

A. Yes, it is.

Q. And then, Mr. Beatty, you also indicate that you have

reviewed scholarly articles confirming the accuracy of Ethnic

Technologies' methods. Do you see that?

A. Yes.

Q. And you cite certain articles in this declaration, three of

them on pages 7 and 8. Do you see that?

A. Yes, I do.

MR. ULIN: I'd like to put before the witness

Exhibit 213, 214, and 215. Those are Jones plaintiffs'

exhibits.

BY MR. ULIN:


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Q. You can take a moment to identify them, if you wish.

A. Do you want me to identify them by name?

Q. No, just to yourself. I'll ask you a question and we'll see

if we can move through it fairly quickly.

(Witness peruses documents.)

BY MR. ULIN:

Q. Have you had a moment to familiarize yourself with the

exhibits, Mr. Beatty?

A. Yes.

Q. Mr. Beatty, do you recognize Exhibit 213?

A. Yes.

Q. And is that a true and correct copy of an article by Pablo

Mateos in the journal of "Population, Space and Place,"

entitled, "A review of name based ethnicity classification

methods and their potential in population studies"?

A. Yes.

Q. And that study was published in 2007; is that correct?

A. Yes.

Q. And is that one of the pieces of scholarly literature that

you identified as confirming the accuracy of Ethnic

Technologies' methodology?

A. Yes, it is.

Q. And do you also recognize Exhibit 214, Mr. Beatty?

A. Yes.

Q. And is that an article by Pablo Mateos, Richard Webber, and


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Paul Longley, entitled "How segregated are name origins? A new

method of measuring ethnic residential segregation"?

A. Yes, it is.

Q. Is that also one of the scholarly articles that you

identified as confirming the accuracy of Ethnic Technologies'

methodology?

A. Yes, it is.

Q. And do you also recognize Exhibit 215, Mr. Beatty?

A. Yes.

Q. And is Exhibit 215 an article by Joel Rosenthal published in

the "Journal of Interdisciplinary History," entitled "Onomastics

and Its Uses"?

A. Yes, it is.

Q. And is that also a scholarly publication that you identify

as confirming the reliability of Ethnic Technologies and its

ethnic identification methodology?

A. Yes, it is.

Q. And just a last question to clarify this record. All three

of these are scholarly articles that you identified for the

state in your declaration which is Exhibit 212?

A. Yes.

Q. And that was in June of 2012, correct?

A. That is right.

Q. Mr. Beatty, have you also read other scholarly articles that

confirm the reliability of Ethnic Technologies' methodology?


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666

A. Yes.

Q. And articles that have been published more recently than

2007?

A. Yes.

Q. Including articles published in 2012 and '13?

A. Yes.

Q. Roughly how many articles would you say you've read that

confirm Ethnic Technologies' reliability?

A. Three or four additional ones.

Q. In your declaration which is Exhibit 202 -- I apologize. I

think I've been referring to it as 212. The declaration is 202.

Did you also provide a brief description of Ethnic

Technologies' methodology?

A. In Exhibit --

Q. In your June 2012 declaration.

A. Which is 202.

Q. Yes, sir.

A. Yes, I did.

Q. And you provided that description at Paragraph 20 of your

declaration; is that correct?

A. Yes.

Q. And that again was provided to the State of Wisconsin in

June of 2012?

A. Yes.

Q. Mr. Beatty, did Ethnic Technologies use the process that you


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667

described in your declaration and to this court today in

analyzing the nonmatching voter information that you provided to

them and providing you with an analysis of those voters by race?

A. Precisely that process.

Q. How do you know?

A. They told me.

Q. And was there anything about the output that they gave you

that also confirmed that they used that process?

A. Because we had the appended codes, was the evidence.

Q. Can you explain that to the Court, please?

A. To each voter, we had those basic race, religion, and gender

codes attached into the pile.

Q. And it's your understanding that was determined by Ethnic

Technologies using their onomastic method of analyzing first,

middle, and last name by naming conventions and also using

information about the geolocation about the voter being

analyzed?

A. Yes.

Q. As well as other data that they've collected concerning

individuals who reside in a particular geolocation?

A. Right.

Q. Or about the particular individual being researched?

A. Uh-huh.

Q. Mr. Beatty, have you reviewed other research about who lacks

driver's licences and state-issued photo identification?


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A. I read regularly on the subject.

Q. Are your conclusions in this case about the racial breakdown

of who lacks photo identification -- state-issued photo

identification and driver's licences consistent with results

with other studies that you have read?

A. Yes.

Q. And you may or may not wish to turn to Paragraphs 46 to 51

of your Exhibit 2, but could you explain to the Court some of

the prior studies with which your identification of the racial

breakdown of who does not have a matching driver's license or

state identification card are consistent?

A. Yes. John Pawasarat who is director of employment --

director of the employment training institute at the University

of Wisconsin, Milwaukee did a seminal study in 2005. He was not

able to gain access to individual level data, but compared data

at the census code levels to between ID holders, between

residents, people of voting age population, broken out by race,

by age, by income, and really set the standard for the study of

the effect of voter ID laws.

Q. And were Mr. Pawasarat's conclusions consistent with yours

about the disparate impact of voter identification on black and

Latino voters in Wisconsin?

A. Yes. Yes.

Q. Are there other studies that you analyzed that came to

consistent results with respect to the disparate numbers or


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669

percentages of people who lacked state identification cards or

driver's licences by race?

A. Yes.

Q. Would you explain to the Court, please.

A. We looked at the three studies, one done by M.V. Hood, one

done by -- I'm sorry, I'm not remembering Pasteur's first name,

and the third study by Matt Barreto.

Q. And can you explain to the Court how your findings were

consistent with those studies, please?

A. Yes. In each instance the disparity by race was consistent

with what we discovered through this process.

Q. And what do you mean by consistent?

A. I mean that Hood, for example, found that 6.8 percent of

African-Americans did not have an acceptable voter ID compared

to 3.7 percent of white voters. 7.3 percent of Latinos did not

have an acceptable ID compared to 3.7 percent of white voters.

And where we found 2 1/2 times as many Latinos, Hood found right

at twice as many. Twice as likely.

Q. Mr. Hood was analyzing statistics in the State of Georgia

and not Wisconsin.

A. Right. Hood did Georgia, Pasteur did Indiana, Maryland and

Mississippi, and Barreto did Indiana.

Q. And then turning to pages 15 and 16 of Exhibit 2, your and

2012 declaration.

A. Uh-huh.


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Q. You reprint four tables.

A. Yes.

Q. Can you explain those to the Court, please?

A. We wanted to look to see how many elections were decided by

a smaller margin than the voters -- registered voters without a

matching driver's license or state ID. A smaller margin than

that. And we geocoded these folks so that we knew which

districts they all lived in and we discovered that in three

Congressional districts and at the statewide office level

Governor, Attorney General, Secretary State, Treasurer and U.S.

Senate, there were, I believe, nine state Senate districts, and

I'm not quite sure of the full number of assembly districts --

more than 25.

Q. I'm sorry, Mr. Beatty, did you finish your answer?

A. I think it's more than 30. I didn't count them all just

then but -- a significant number.

Q. You're not saying that those races necessarily would have

come out differently if all those people had photo ID cards?

A. We don't know that.

Q. And given that those races took place in 2010, in fact, the

voter ID law wasn't even in place at that time.

A. Right.

Q. You're merely suggesting in a world where voter ID is in

place in each of these districts the number of people who would

not quite likely be able to vote given their lack of


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671

state-issued photo ID exceeded the margin of victory in the

election.

A. That's right.

Q. You mentioned a moment ago, a study by M.V. Hood.

A. Yes.

Q. Do you know who Mr. Hood is?

A. I don't know him personally but I know that he is a

professor and has written extensively on voter identification.

Q. Are you aware that Mr. Hood is an expert for the State of

Wisconsin in this case?

A. Yes, I am.

Q. And has issued two reports in this case; is that correct?

A. That's correct.

Q. And both of which purport to study the numbers and

percentages of voters who lack state-issued photo ID cards and

driver's licenses, correct?

A. That's correct.

Q. A similar inquiry to the one that you made; is that right?

A. Yes.

Q. And Mr. Hood has also in his reports provided some

criticisms of your analysis; is that correct?

A. That is correct.

Q. And I think you said this, I'm sorry if I'm asking it again,

you've reviewed both of Mr. Hood's reports?

A. Yes, I have.


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672

Q. And you reviewed his criticisms of your analyses, correct?

A. Yes, I have.

Q. You're aware that in and of 2012 Mr. Hood through his

analysis came up with a lower number of voters whose DMV records

did not match their voter registration records than you did,

correct?

A. That is correct.

Q. Can you account for the difference between your results and

Professor Hood's results?

A. Yes, I can. First, Professor Hood in the voter registration

file there is a field called state ID number but is, in fact, a

driver's license or state ID number. Mr. Hood tried to match

those -- he assumed that everyone that had that number did, in

fact, match a driver's license but he did not check to see if

the names or the dates of birth matched between those two

numbers. They may have been a voter and a driver with the same

driver's license number in the file, but a significant number

while the number may have matched there were disparities, the

personal identification information did not match.

Q. So you found instances reviewing the records from DMV and

GAB where a driver's license or state ID number matched between

the two files but the name, date of birth or gender didn't

match; is that correct?

A. That's correct.

Q. How many instances of those types of non matches did you


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find?

A. I can give you a fairly exact number here.

(Witness peruses document.)

A. 85,622 registered voters were counted as having

identification when, in fact, the personal information did not

match.

Q. So and those 85,000 some odd voters are people that in

Mr. Hood's analysis were all treated as matches because the

state identification number matched; is that correct?

A. That is correct.

Q. Now, in your analysis did you just simply throw them out and

treat them as non matches?

A. No. I gave them other opportunities to match but I didn't

assume that because there was a driver's license number in the

voter registration file and the same driver's license number in

the DMV files that they must automatically be the same person.

And checked to see, is the first name the same, is the last name

the same, is the date of birth the same, and in 85,622 cases

they were not.

Q. But for some number of those your personal identification

matching system would still have picked them up as matches.

A. Yes. We reclaimed a number of them through other methods.

Q. Including, for example, in your third round match if their

last name and ZIP code and date of birth matched, correct?

A. Right.


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Q. Even if the first name was a not match.

A. We were trying to allow for nicknames there but we added the

ZIP in, in order to give us enough unique identifiers to reduce

the duplicates.

Q. Was there another method -- methodological difference

between you and Mr. Hood that accounted for his assigning

matches to certain voters where you would have required further

analysis?

A. Yes.

Q. Can you explain that to the Court, please.

A. There is a driver's license number in the voter file, but

there is no matching number in the DMV file, when the driver's

license or state ID file. The number is present in the voter

file but there is no number that matches in the driver's license

or ID files.

Q. And those people who had a driver's license or state ID

number in their voter file but not in the DMV files, Mr. Hood

treated those all as matches; is that correct?

A. That's correct.

Q. And how many voters did Mr. Hood treat as matches when they

had a driver's license or a state ID number in the voter file

with no match in the DMV file?

A. 106,825 such voters.

Q. And again with respect to your analysis did you simply

treatment all of those folks as non matches because they didn't


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have a state ID number in the voter file --

A. No.

Q. -- I'm sorry, in the driver's license file?

A. No. We went through the personal identification match

levels, subjected them all to that and many of them did, in

fact, match at that level.

Q. So between the two sorts of individuals who Mr. Hood matched

based on the state identification number there was the potential

for over 190,000 voters to be added to his matching numbers that

you would not have found as matches, correct?

A. Not based on the criteria he used. As I said, reclaimed a

number of them through other match methods, but we wouldn't

assume that they automatically had a matching ID just because

they were numbers in a file.

Q. Actually the difference between your number and Mr. Hood's

number was approximately 55,000 or so non matching voters; is

that correct?

A. Uh-huh. Yes.

Q. So in fact you reclaimed perhaps 140,000 odd of these voters

that Mr. Hood had automatically assigned to the matching group

based on their having a state ID number; is that correct?

A. Right.

Q. Mr. Hood also criticizes you for coming to the -- a number

of non matching voters that differs from the number that was

found by professor Kenneth Mayer of the University of Milwaukee


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at Wisconsin in the NAACP vs. Walker state case; do you recall

that?

A. Yes I do.

Q. Can you explain the difference between your method and

Professor Mayer's method?

A. It's probably easiest to say that Professor Mayer's method

and Professor Hood's method were exactly the same.

Q. And is it correct, would you describe Professor Mayer's

method for the Court?

A. Driver's license number, first name, last name, first name,

last name, date of birth.

Q. Is it correct that Professor Mayer treated anybody who had a

driver's license or state identification number in their voter

file as a, match period, regardless?

A. Yes. As Professor Hood did.

Q. And you didn't, you required further analysis.

A. No. Because what the issue at hand is, can you present a

matching ID, and whether or not there is a number in a file is

no indicator of whether or not your ID matches your voter

registration identification.

Q. So what happens at the polling place on election day under

Act 23 when the voter shows up with their state issued

identification card and tries to get it matched to the record in

the voter file?

A. It is going to not be a match. It's possible that some


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voters will be allowed through, it's possible that other voters

won't be allowed through, but on the whole you're going to wind

up with an ID that does not match your voter registration

information and could well be denied access to a ballot.

Q. And what are the things that a poll worker is supposed to be

looking for on the state-issued photo ID to determine whether it

matches to the voter file?

A. Because there is election day registration, there's a chance

to cure that on election day. But if you have a different name,

if your birth date is different, you don't match. If it doesn't

match, then you don't have a matching ID.

Q. Is it correct to say that you were attempting to perform a

matching analysis that as closely as possible parallels the

matching analysis that the poll worker does at the polling place

on election day under Act 23?

A. Yes.

Q. Mr. Hood also provided some criticism of your analysis based

on limitations he perceives in the data that the state provided

for your use. Do you recall that?

A. (No response.)

Q. This would be in his supplemental declaration of October

2013.

A. In his. I don't have that in front of me.

Q. Yes.

A. But I recall a number of pieces of information I learned


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from that. What is your question again?

Q. Well, let me review five limitations in the state's data

that Mr. Hood identified and allow you to respond to his claims

that it affects the credibility of your analysis, if I may.

A. Uh-huh.

Q. First, Mr. Hood contends that your analysis and anybody's

analysis of the data from the GAB and DMV is made less reliable

because there is no unique and permanent personal identifier in

the records between the two databases. Can you respond to that?

A. Yes, that is correct. And this is one of the issues with

assuming that because the numbers match that there is a matching

ID. As it turns out the state, your driver's license number

does not always stay the same. There are a number of things,

moving, change of name that causes your ID number to change. So

the ID number you had in your voter file when you first

registered to vote may well have changed based on a change in

residence, a marriage, and so it creates an unreliability.

Q. So that's a problem if you're trying to match by state

identification number, correct?

A. Absolutely. And that explains much of why one person with a

specific driver's license number in the voter file might match

that number in the driver's license file but it turns out to be

an entirely different person.

Q. So in your analysis which does not match by state

identification number, is the lack of a consistent


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identification number a problem?

A. No. And that is why we did it this way. We noticed early

on in this that there was a problem trying to match by that

number simply because of the number of discrepancies we had

between names and date of births.

Q. So that's a problem for Professor Hood.

A. Yes.

Q. And it's a problem for Professor Mayer.

A. Yes.

Q. But it's not a problem for you.

A. No.

Q. Secondly, Mr. Hood indicates that another problem is that

the voter registration database field the first state

identification numbers is not fully populated because prior to

2006 in the Help America Vote Act, driver's license information

was not collected by GAB.

A. Right. There was no statewide database of voters. And, in

fact, if you lived in an area, in a township or municipality

with fewer than 5,000 residents, there was not even a voter

registration process required at all.

Q. Is that a problem for your matching analysis, the fact that

the GAB's database field for state ID number is not fully

populated?

A. No, because we did not depend on that.

Q. Didn't depend on state ID numbers.


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A. Right.

Q. So again the lack of the a state ID numbers in those voter

records is a problem for Mr. Hood, correct?

A. But it does not affect my analysis.

Q. Very good. Third, Mr. Hood indicates that there is

inconsistent data even identifying data within the fields of

data as between the two databases in DMV and GAB: What's your

response to that?

A. We tried our best to account for expected variations. For

instance, using last name, date of birth, ZIP, to allow for

nicknames. Although that may have been a step too far, everyone

knows that Bob and Robert are the same person but not everyone

knows that Jesus and Chewey are the same person. That was a

difficult decision to make but we didn't want to just discount

entirely people's tendency to register to vote with nicknames.

And so if the date of birth was the same and the ZIP was the

same and the last name was the same we went ahead and counted it

although it's a less than platinum quality match.

Q. And isn't the inquiry you're making whether the data is

consistent between the ID card and the voter file?

A. It -- the actual number of people who might wind up at the

polls turned down because the information doesn't match could be

larger than the number that I was quoting because I did make

that concession for the potential for nicknames.

Q. Because that's the matching analysis that the poll worker is


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doing when she looks at your driver's license and sees whether

it matches her poll book.

A. Right. I might add that the Attorney General of the state

of Texas did not have -- had a different first name on his

driver's license from his voter registration card in yesterday's

election.

Q. Turned out to be a problem for him and his ability to vote

as I understand it.

A. Uh-huh.

Q. Mr. Hood also indicates that the state data -- another

problem with the state data is that it does not take into

account the possibility that non matching voters will have other

forms of qualifying ID not a driver's license or state ID card

but perhaps a passport, military card, what have you. What's

your response to that?

A. Some number of them may but because the unmatched skewed so

heavily to low income and elderly groups, which are the lowest

likelihood to have passports and military IDs, it seems unlikely

that they would make a huge difference but certainly there will

be some.

Q. Would you say in your expert opinion that the view you just

expressed is borne out by some of the testimony we have seen in

this case from low income minority individuals who did not have

any other form of qualifying identification?

A. Yes.


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Q. Finally, Mr. Hood contends that another problem with the

data that confounds your analysis is that the data from DMV that

was provided to you and to him did not include driver's licenses

or identification cards that expired after the last general

election, after November of 2012 which could still be used to

vote at least until the next general election in November 2014

under the terms of Act 23. What is your response to that?

A. We made requests for a full history, we wound up settling

for this. I'm sure that some number of them are in there but

that's only good for one cycle and then they'll be without. So

in the short run it might make a small difference, but past that

makes no difference.

Q. In other words, we're going to have a lot more elections

beyond November 2014?

A. It's not the last election we're going to have.

Q. By the way, did Professor Hood analyze the race of non

matching voters?

A. No, he did not.

Q. And by contrast did you attempt an analysis of the racial

breakdown of voters that Professor Hood identified as non

matching based on the state's 2012 data?

A. Yes. I used his exact methodology and all of the unmatched

voters that resulted from his methodology were also in the set

of unmatched voters that I had produced.

Q. I just want to pause you there. So Professor Hood's non


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matched voters was a subset of yours; is that correct?

A. Yes.

Q. Okay. Please continue.

A. And as it turns out the racial disparity was even greater

between minorities and white voters in using his match method

than with mine.

Q. And is it correct you were able to analyze that because you

had the racial and ethnic identifying information from Ethnic

Technologies' analysis for all of the voters that Professor Hood

identified as non matches?

A. Yes. Because they were a subset of the unmatched that I had

produced.

Q. And turning in Exhibit 202 to page 6 and the tables

reproduced at Paragraphs 15 and 16 of that supplemental

declaration. Can you tell the Court what the racial breakdown

of the non matching voters identified by Professor Hood in 2012

was?

A. Yes. 11 -- essentially 11.7 percent of non-white Wisconsin

registered voters lack a driver's license or state

identification card as compared to only 4.36 percent of white

voters.

Q. Let me pause you there for a moment. Are you saying that

under Professor Hood's own analysis non-white voters were

something like 2 1/2 times more likely than white voters to lack

a matching driver's license or photo identification card?


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A. That's correct.

Q. And can you break that down further looking at the table you

reproduced at Paragraph 16 of Exhibit 202 by race?

A. Yes. The share without a matching driver's license or ID,

African-American, 9.0 percent; Hispanic, 9.7 percent; white, 4.4

percent.

Q. So again is it correct based on your numbers that for both

Latino registered voters and African-American registered voters,

based on Professor Hood's 2012 analysis, they are each more than

twice as likely to lack a matching state identification card or

driver's license?

A. That is correct. Although his match method produced a

smaller number of voters without matching driver's license or

ID, the disparity by race was significantly worse.

Q. Were you, Mr. Beatty, recently provided with new data from

the State of Wisconsin?

A. Yes.

Q. And that was updated statistics from the GAB with respect to

registered voters; is that correct?

A. That is correct.

Q. As well as updated information from the Department of Motor

Vehicles with respect to driver's license and state

identification cards?

A. Yes, that's correct.

Q. And that data was current as of September of 2013; is that


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right?

A. Right.

Q. And did you rerun your analysis using the new numbers?

A. Yes, I did.

Q. I would like you to turn, if you would, to Exhibit 817,

please.

A. Uh-huh, yes.

Q. With respect to your analysis of the new numbers,

Mr. Beatty, did you use the same process that you used to

analyze the data in and of 2012?

A. I did. And added a couple of additional approaches based on

feedback I had gotten in depositions with the State of

Wisconsin.

Q. And I want to come to those in a moment. But before I get

there, I want to talk about your results in the statistics.

A. Uh-huh.

Q. Turning to the second page of Exhibit 817 and the table that

you've reproduced there, can you inform the Court what the

results of your analysis of the September 2013 data were,

please?

A. Yes. The share by race without -- registered voters without

a matching driver's license or ID card: Asian, 12.2 percent;

African-American, 11.5 percent; Hispanic, 19.2 percent; Native

American, 6.3 percent; white, 8.3 percent. Overall average was

8.8 percent.


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Q. And I want to back up for a moment to Paragraph 6 of

Exhibit 817.

A. Uh-huh.

Q. First of all, in your match based on the 2013 data, your

conclusion was that 317,335 -- sorry -- 735 registered voters

are still lacking matching driver's licenses or photo

identification cards, correct?

A. That is correct.

Q. And you've given us the racial breakdowns of those voters.

Is it correct, based on those statistics, that your analysis

shows that blacks remain at least 1.4 times as likely as white

registered voters to lack a matching state identification card

or a driver's license?

A. That is correct.

Q. And with respect to Latino, is it correct that, based on

your analysis as reflected in Exhibit 817, they are 2.3 times as

likely as white registered voters to lack a matching state

identification card or driver's license?

A. That is correct.

Q. You mentioned that you attempted additional analyses in your

work on the 2013 Wisconsin state data. What did you attempt?

A. The question had come up before about people with hyphenated

last names or multiple-word last names and people with

multiple-word first names. Mary Ann might be Maryann is the

first name in one record; in the other, Mary might be the first


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name, Ann might be the second name.

Q. Or by contrast, we might see somebody like Pastor Michelle

Townsend on one record and her more complete name, Pastor

Michelle Townsend de Lopez, on another.

A. Right.

Q. Okay. Continue, please.

A. So we separated those records that had multiple-word names

either as first name or last name and we tried to cross-match

against each of those words. And if Word 1 matched either

Word 2 -- either Word 1 or Word 2, we counted it as a match. If

Word 2 matched either Word 1 or Word 2, we counted it as a

match.

Same with last names. We allowed for your driver's

license might just have a single last name. Your voter

registration, which is typically a much more personal document,

might well have a hyphenated last name. And so we tried to see

if we made -- after we did all of our other match levels, we

tried to see if that made a difference.

Q. And did it make a difference?

A. About 400.

Q. And did you include all of those people in your totals of

matched voters in 2013?

A. Yes, I did. Yes.

Q. Did you also attempt to use the field of data for "former

last name" that appeared in the DMV records?


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A. Yes. Additional field was available in the DMV records in

the second round, and it was former last names.

Q. So that had not been available in 2012 but it was available

in 2013.

A. Right. It did not, however, tell us the former last name.

It merely contained the word "former" or it was empty. And so

in those cases, after we had done all of the other matches and

removed all of the matches from the voter file in order to try

and really limit the number of duplicates, we tried to see if

the first name, middle initial, and date of birth would create a

unique match. And it did a few.

Q. Approximately how many?

A. Less than 400.

Q. And did you include all of those people as matches in your

analysis?

A. Yes, I did, although that one gave me a little bit of

heartburn. I still did not want to exclude the possibility it

would have been good to have known what that former last name

was, but I did not want to discount the possibility that that

might, in fact, be the same person.

Q. Gave you a little heartburn because the records that you

were matching didn't actually match; is that correct?

A. Well, if you show up at the polling place and your last name

is different, that's difficult. Most people believe that a last

name is a positive identifier.


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Q. Mr. Beatty, I notice your analysis for 2013 shows something

like 317,000; is that correct?

A. 317,735.

Q. Then your number for 2012 was somewhere in the range of 356

to 360,000; is that correct?

A. Correct.

Q. And 2013 number is obviously somewhat lower, right?

A. Yes.

Q. Does that show -- indicate to you any trend in the numbers

of persons -- registered voters in Wisconsin who do not have

matching state ID or driver's licences?

A. No, it does not.

Q. Would you explain that to the Court, please.

A. There are only two data points, and you don't establish a

trend out of two data points.

Additionally, part of that reduction is because voters

who apparently -- I'm sorry -- drivers and ID holders who

apparently had an ID or a driver's license at the time of the

last analysis but were not included in that file were also

included -- were, in fact, included in the new file.

So part of the reduction is because of the inclusion

of additional records, and part of it was because of an increase

in driver's license and state ID holders.

Q. But some of that number was people who should have been

matches last time, is what you're saying.


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A. Right.

Q. Okay. Similarly, there is at least a somewhat lower

disparity as between the rates of lacking a matching state ID or

driver's license as between blacks and white registered voters

and also as between Latinos and white registered voters.

A. Yes. Minorities were the primary gain in state ID cards.

Q. Does that represent to you a trend with respect to the

disparities of ID ownership -- of matching ID ownership?

A. No.

Q. And can you explain that to the Court?

A. About 30 percent of state ID card holders also have a

driver's license. They are responding to the warnings that

voting could become difficult and have adopted the belt and

suspenders approach: If I have both an ID and a driver's

license, they've cut their odds significantly of things going

wrong.

Q. Mr. Beatty, as you sit here today, is it your opinion as an

expert that African-American registered voters in the State of

Wisconsin are significantly less likely to possess a driver's

license or state-issued photo identification card that matches

their voter file than are white registered voters?

A. Yes, sir.

Q. And as you sit here today, is it your opinion that Latino

registered voters in the State of Wisconsin are significantly

less likely to possess a driver's license or state-issued photo


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identification card that matches their voter file than are white

registered voters?

A. Yes, sir.

MR. ULIN: I have no further questions for the witness

at this time, Your Honor.

THE COURT: Counsel, you referred to Exhibits 211

through 215. Do you want to offer those?

MR. ULIN: Yes, I would like to move their admission,

Your Honor. Thank you.

THE COURT: So ordered.

Let's take a break and then you can do your

cross-examination. About 10, 15 minutes.

MR. ULIN: Your Honor, can I ask one question? You

did admit 202 and 817?

THE COURT: Yes.

(Recess taken at 2:56 p.m., until 3:11 p.m.)

THE COURT: Before we do the cross-examination of

Mr. Beatty, we're going to do another witness. I have to swear

you.

SAMANTHA MESZAROS, PLAINTIFF WITNESS, DULY SWORN

THE COURT: State your name for the record. Spell

your last name.

THE WITNESS: Samantha Meszaros, M-E-S-Z-A-R-O-S.

THE COURT: And talk real close to the mic like you're

doing. And okay, go ahead.


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DIRECT EXAMINATION

BY MS. LIU:

Q. Good afternoon, Miss Meszaros. When were you born?

A. December 1st, 1992.

Q. And how old are you?

A. I'm 20.

Q. What is your permanent address?

A. 1582 Candlewood Drive, Crystal Lake, Illinois.

Q. And are you in college?

A. Yes.

Q. Where?

A. I go to Carthage College in Kenosha, Wisconsin.

Q. Do you know how many students there are there?

A. Probably between 2,500 to 3,000.

Q. Do you know how many from out of state?

A. There's a lot.

Q. More than 100?

A. I would say so.

Q. And do you know if they use home state driver's licences?

A. Yes, they use their home state driver's license.

Q. And where do you live?

A. I live in the residence halls on campus.

Q. And as a student, how many months a year do you live in

Kenosha?

A. 10 to 11 months out of the year.


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Q. And do you vote in Wisconsin?

A. Yes.

Q. When did you first vote in Wisconsin?

A. In the recall election in summer of 2012.

Q. And have you voted in Wisconsin since then?

A. Yes. I voted in the presidential elections, 2012

presidential elections.

Q. And Ms. Meszaros, why do you vote in Wisconsin?

A. I vote in Wisconsin since I do not just like attend Carthage

on a regular school year, but I also work and live in Kenosha

over the summer so I consider it much more of a permanent

residency besides Illinois. As well as after college I might

still stay in Wisconsin so I feel like these elections mean much

more to me and are much more important to me than Illinois

elections are.

Q. And where do your parents live?

A. They live in Crystal Lake, Illinois.

Q. And is that where you grew up?

A. Yes.

Q. Do you have a driver's license?

A. Yes.

Q. And when did you get that driver's license?

A. September -- summer of 2009.

Q. And what state is that license from?

A. Illinois.


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Q. And during the school year, do you drive in Wisconsin?

A. No.

Q. And why do you keep an Illinois driver's license?

A. I don't drive at all during the school year in Wisconsin.

However, when I do go home, for example for holiday breaks, I

drive in Illinois. Therefore it wouldn't make sense to give up

my Illinois driver's license.

Q. And when did you start college?

A. I started college in fall of 2011.

Q. And did you get a student ID then?

A. I got it a couple months prior in winter/early spring of

2011.

Q. And was that student ID voter ID compliant?

A. No.

Q. Did that student ID have your signature?

A. No.

Q. Did it have an expiration date?

A. No.

Q. Did Carthage end up changing its ID?

A. They offered an alternative for students if they wanted to

come in and they could get a free voter ID approved ID.

Q. And when did they do that?

A. In winter/early spring of 2012.

Q. And what's the difference between the first and the second

IDs?


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A. The second ID has an issue date, my signature, as well as an

expiration date sticker on the back.

Q. And did you get that second ID?

A. Yes.

Q. And is that ID the one that you currently have?

A. Yes.

Q. How did you get that current ID?

A. The dean of students office sent out an e-mail saying if you

want to come and exchange your ID. So I went to the DSO office

and I -- they gave me a new voter approved ID.

Q. And did you run into any problems?

A. Yeah. One problem I realized after I accepted the ID that

they didn't put the expiration date sticker on the back. So a

couple days later I had to go back and get the sticker put on

and that caused a little bit of confusion because they couldn't

find the stickers and stuff along those lines.

Q. And did you have any other problems?

A. Yeah. I got my ID, the new student approved ID on a Friday

and I went to go after the office closed I went to go buy food

and they didn't put the food points, they didn't switch my food

points over so the whole weekend I didn't have any food points

and which wouldn't have happened if I was able to just keep my

regular ID I wouldn't have needed to get a new student-approved

ID and that was just a real big inconvenience for me and all my

friends who had to buy me food. So --


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(General laughter.)

BY MS. LIU:

Q. Ms. Meszaros, do you have a passport?

A. Yes.

Q. And did you have it when you started at Carthage?

A. No.

Q. When did you get that passport?

A. I applied for the passport late summer of 2012.

Q. And why did you get that passport?

A. I decided to go on a school trip that was to Poland this

past summer.

Q. And how much did that passport cost?

A. Around $100.

Q. And do you have a tribal ID?

A. No.

Q. Do you have a military ID?

A. No.

Q. Do you think Wisconsin students from out of state should

have to get a passport to vote in Wisconsin?

A. No, because, first of all, it does cost around $100 and

there's an inconvenience of having to go through the application

process. As well as the purpose for the passport is more for

international travel, and if you're not planning internationally

traveling there's not really a legitimate reason to get one.

Q. Do you think Wisconsin students from out of state should


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697

have to give up their out-of-state licenses to vote in

Wisconsin?

A. No, because, first of all, if you don't have a car up at

your school and you -- therefore you're not going to really be

driving in Wisconsin, however, you do go home for holiday breaks

or summer breaks, you're most likely going to be driving in your

home state so it doesn't make sense to give up your home state

driver's license.

MS. LIU: I have no further questions.

CROSS-EXAMINATION

BY MR. KAWSKI:

Q. Good afternoon, Ms. Meszaros. My name is Clay Kawski, I'm

an attorney for the defendants in this these cases. Just a few

questions for you.

You said that you use your home state driver's license

for driving in Illinois. Do you ever drive in Wisconsin?

A. Once in awhile over the summer.

Q. Okay. So do you ever have a car here then where you're

working over the summer?

A. Yes.

Q. How do you get home from Kenosha when you're at school to

Crystal Lake?

A. My parents come pick me up.

Q. Have you ever driven from Kenosha to Crystal Lake?

A. Yes.


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698

Q. And so would you consider yourself a Wisconsin resident?

You said you vote in Wisconsin, right?

A. Yes.

Q. Do you understand that under Wisconsin law, if you're a

resident of Wisconsin for purposes of voting you're also a

resident of Wisconsin for purposes of driving?

MS. LIU: Objection. Foundation.

THE COURT: She may answer if she knows.

THE WITNESS: I wasn't aware.

BY MR. KAWSKI:

Q. Do you know that if you're driving in Wisconsin you should

have a Wisconsin driver's license?

A. I primarily don't drive much in Wisconsin.

Q. Do you understand though that if you are a Wisconsin

resident you're supposed to have a Wisconsin driver's license?

A. I'm an Illinois resident. I just identify myself as a

Wisconsin voter.

Q. So you're a Wisconsin resident for purposes of voting but an

Illinois resident for purposes of driving.

A. I drive much more in Illinois than I ever have in Wisconsin.

MR. KAWSKI: No further questions.

THE COURT: Okay. Thank you very much.

(Witness excused at 3:19 p.m.)

THE COURT: Okay. Dr. Beatty.

MR. EICHNER: Your Honor, can we slide in one more


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699

witness?

THE COURT: Sure.

Ma'am, raise your right hand.

ROSE THOMPSON, PLAINTIFF WITNESS, DULY SWORN

THE COURT: Okay. State your name for the record and

spell your last name.

THE WITNESS: Rose Thompson.

THE COURT: Talk real close to that mic.

THE WITNESS: I'm Rose Thompson, and my last name

is -- I mean my first name is Rose Thompson, and, I spell my

last name T-H-O-M-P-S-O-N. Thompson.

THE COURT: Okay.

DIRECT EXAMINATION

BY MR. OSTROW:

Q. Thank you, Ms. Thompson. My name is Daniel Ostrow.

Ms. Thompson, could you tell me when you were born,

please?

A. December the 25th, 1933.

THE COURT: Can you talk into that mic? It might not

be so comfortable. You can move the mic if you can.

BY MR. OSTROW:

Q. There you are. Sorry. And when did you say you were born?

A. 1933. December the 25th, 1933.

Q. So you'll be 80 years old?

A. Yes.


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Q. And where were you born?

A. I was born in Louisville, Mississippi.

Q. Were you born in a hospital?

A. No, midwife.

Q. Do you currently have a birth certificate?

A. No, I don't.

Q. Have you ever had a birth certificate?

A. No, I haven't.

Q. And why not?

A. Pardon?

Q. How come you never had a birth certificate?

A. Because every time I send for my birth certificate they

claim they can't find it or something or is something wrong.

And I done sent money down there about four or five times trying

to get my birth certificate.

Q. All right, we'll get to that in a second. Where do you

live?

A. I live 4244 North Teutonia.

Q. And how long have you lived in Wisconsin?

A. I lived here ever since 1970 -- '74.

Q. 1974?

A. Uh-huh.

Q. And in Milwaukee the whole time?

A. Yes.

Q. And what's your racial background? What race are you?


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701

A. I'm black. You can look at me and tell that.

(General laughter.)

BY MR. OSTROW:

Q. Thank you, Ms. Thompson. Do you go to Cross Lutheran

Church?

A. Yes.

Q. How often do you go?

A. I go every Wednesday. I help with the meal program.

Q. And how long have you been going there?

A. Oh, about 3 months and a half now, I think.

Q. I want to talk to you a little bit about identifications.

Do you currently have a Wisconsin driver's license?

A. No, I don't.

Q. Have you ever had a Wisconsin driver's license?

A. No.

Q. Have you ever had a driver's license?

A. No -- in Mississippi. In Lewisville, Mississippi I had a

driver's license.

Q. And when you moved to Wisconsin did you bring the license

with you?

A. Yes.

Q. Did you ever renew it?

A. No. I think I renewed it twice because I went back to

Mississippi and had them renewed, you know.

Q. And is that license now expired?


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A. Yeah.

Q. And when did it expire?

A. In '80.

Q. In 1980?

A. Uh-huh.

Q. Do you have a U.S. passport?

A. No.

Q. Do you have a U.S. military ID?

A. No.

Q. Do you have a naturalization certificate?

A. No.

Q. Do you have a tribal ID for Native American?

A. No.

Q. What about a student ID card?

A. No.

Q. Have you ever had a student ID card?

A. No.

Q. Do you have a bank account?

A. I got my money on a card. They tell me go to the bank and

then they put it on the card. I don't know.

Q. So you have a debit card that you use.

A. Yeah.

Q. And your Social Security checks.

A. Yeah.

Q. Do they go straight into that?


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703

A. Card.

Q. Go right on the card?

A. Uh-huh.

Q. When you got that did you need to show a photo

identification?

A. No, I didn't.

Q. Do you have any other IDs?

A. I got them packed up somewhere at home, some old IDs, but I

never found them because I got about eight boxes of papers and

stuff I'm saving.

Q. Do you have a Medicare ID?

A. Uh-huh.

Q. Does it have your photo on it?

A. No.

Q. Can it be used for voting, do you know?

A. Not as I know of.

Q. Do you have a Social Security card?

A. Yes.

Q. Could you use that to vote?

A. Yes, I reckon so because that's what I show it and my

Medicare card when I go.

Q. Do you ever need a photo in your daily life?

A. No.

Q. Does anyone ever ask you they need to see a photo ID from

you?


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704

A. No.

Q. Have you ever tried to get a photo ID from the Department of

Motor Vehicles?

A. Here, yes.

Q. Here in Milwaukee?

A. Yes.

Q. About how many times have you tried to do that?

A. About four or five times, I think.

Q. Have you ever been successful?

A. No.

Q. How come?

A. They tell me I need my birth certificate. And then one time

the lady had me to bring all of my children birth certificate,

take it down to her, and I carried them down there so, you know.

Then she said she couldn't use them.

Q. Did you go by yourself?

A. My daughter went with me, Carol.

Q. She took you. And when the DMV told you she couldn't use

all those documents to get you an ID, what did you do then?

A. Go home.

Q. What did she tell you you needed in order to get --

A. She turned around, she told me I needed my birth certificate

and I told her I hadn't been able to get my birth certificate

because I've been sending money to Jackson, Mississippi to try

to get my birth certificate.


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705

Q. About how many times did you try to get your birth

certificate from Mississippi?

A. I sent $10 twice, that's when it was $10 apiece. And then I

went and I sent $12, you know. And I showed you that letter I

got, they want me to send 25 now. And every time I send my

money they don't send it back to me.

Q. Did they ever send you a birth certificate?

A. No.

Q. So they kept your money and no birth certificate.

A. That's right.

Q. And was that a lot of money for you?

A. Yes, way the time is now. $3 is a lot of money for me.

Q. Do you currently have a job?

A. No, I draw my husband's pension.

Q. So that money is coming from your husband --

A. It's Social Security and a VA.

Q. I want to switch topics a little to voting. Are you

registered to vote here in Milwaukee?

A. I filled out a card and I've been voting every year.

Q. How long have you been voting for? When is the first time

you remember voting?

A. I think here it was in 1975.

Q. Here in Wisconsin was the first time.

A. Yes. Uh-huh.

Q. When was the first time you voted at all?


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706

A. It was, I forget the governor that was running but I voted

for him. You know, I've been voting ever since.

Q. Did you ever vote when you were down in Mississippi?

A. Oh, yeah.

Q. What was it like being an African-American in Mississippi

when you were voting?

A. You don't want to know.

Q. Can you tell us any stories about it?

A. Oh, yeah. Mississippi is the worst place anybody can live.

They killed my cousin, they killed two more, and they tell us

there was nothing we could do about it.

Q. And this was in the 1960s.

A. Yes, it was.

Q. And you voted in Mississippi in the 1960s.

A. Yes, we vote but they tell us who to vote for.

Q. And you were saying that somebody was telling you who to

vote for?

A. Yes, it was. We didn't vote for that person. They said it

wouldn't be counted.

Q. Who told you?

A. Up at the courthouse. I lived in town and we had to go to

the courthouse and vote and they meet you at the door and tell

you who you vote for then. They tell you who to vote for and he

said if you don't vote for that person your vote won't be

counted.


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707

Q. And who was that person, do you remember?

A. I can't remember right now but he still down there in the

courthouse.

Q. Was he an African-American?

A. No, white.

Q. So a white candidate met you at the courthouse and said you

have to vote for this candidate.

A. Yes.

Q. And you voted in that election.

A. Yes.

Q. Is voting important to you?

A. Yes.

Q. Why is it important to you?

A. Because I want to be able to elect the president or anybody

who run for anything.

Q. If the voter ID law goes into effect and you need a state ID

to vote, would you be able to vote?

A. No.

Q. How would that make you feel?

A. Make me feel bad.

Q. How would it make you feel to know that you could vote in

Mississippi in the 1960s, but if this law goes into effect you

couldn't vote in Milwaukee in 2014?

A. That make me feel real bad.

Q. No further questions. Thank you.


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708

A. Uh-huh.

CROSS-EXAMINATION

BY MR. KAWSKI:

Q. Good afternoon, Ms. Thompson. Thank you for being here

today.

A. Sure.

Q. My name is Clay Kawski, I'm an attorney for the defendant in

these cases and I just have a couple questions for you.

A. Okay.

Q. You mentioned that you volunteer on Wednesdays for Cross

Lutheran Church, right?

A. Uh-huh.

Q. Are you a member of Cross Lutheran?

A. No.

Q. When you tried to get your birth certificate numerous times

from Mississippi, did you ever try and call them and follow up?

A. I called them. That's when I would send the money. The

next time I would call down there in Jackson, they tell me

send -- then it would be like two times I paid $10 and then the

next time I sent -- paid $12. That's when it went up to $12.

And then the next time they sent me a letter, want me to send

$25 now to get a birth certificate.

Q. And in these letters this is where you got the phone number

to call them, correct?

A. Yeah.


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709

Q. Did they tell you to send anything else with the letters or

just the money?

A. They told me to send my oldest son birth certificate. And I

sent my oldest son birth certificate and they still didn't send

it. They sent it back but they don't never send my money back

to me.

Q. Did you follow up with them after you sent your son's birth

certificate?

A. I called them -- Yeah, I called them.

Q. I said did you follow up with them after you sent your son's

birth certificate?

A. Yeah. Because see, they send his birth certificate back to

me, but wasn't no check or nothing or money order of what I

sent.

Q. Did they send just the birth certificate or anything else?

A. They sent a little old letter and I gave it to somebody. I

don't know now. I forgot.

Q. What did that letter say?

A. Well, it told me to send $25 and my son's birth certificate.

Q. And you had just done that?

A. Yes.

Q. And you didn't follow up with them as to why they were

asking you for the same thing again?

A. No, I didn't.

Q. Okay.


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710

No further questions. Thank you.

A. Uh-huh.

THE COURT: Okay. Thank you. Thank you very much.


THE COURT: Okay. Now we're going to go to the

cross-examination of Dr. Beatty.

LELAND BEATTY, PLAINTIFF WITNESS, PREVIOUSLY SWORN

CROSS-EXAMINATION

BY MR. LENNINGTON:

Q. Good afternoon, Dr. Beatty, I'm Dan Lennington and I

represent the defendants in this case.

A. Yes.

Q. And we talked over the phone last week; do you remember

that?

A. I do.

Q. It's nice to meet you in person. Thank you for coming here.

You determined in your most recent report that

approximately 317,000 Wisconsin registered voters do not have a

matching state ID or a matching state driver's license; is that

correct?

A. That is correct.

Q. You did not, however, determine whether any of these 317,000

Wisconsin registered voters had an expired state ID card, did

you?

A. That data was not available.


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711

Q. You did not determine whether any of these 317,000 Wisconsin

registered voters had an expired driver's license, did you?

A. That was not available.

Q. And do you understand that under Act 23 expired ID cards may

be used as a valid form of identification so long as the ID

expired after the last general election? Do you understand

that?

A. I do.

Q. Now, you did not determine whether any Wisconsin registered

voters had a matching passport, did you?

A. I did not.

Q. You did not determine whether any Wisconsin registered

voters had a military ID, did you?

A. I did not.

Q. Or a certificate of naturalization.

A. I did not.

Q. Or an unexpired driving receipt.

A. No.

Q. Or an unexpired identification card receipt.

A. No.

Q. Or an ID card issued by a federally recognized Indian tribe.

A. No, I did not.

Q. Or an unexpired state ID card issued by an accredited

university or college.

A. No.


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712

Q. You only determined whether Wisconsin registered voters had

a state ID card that was valid or a state driver's license that

was valid, correct?

A. That is correct.

Q. You did not determine whether any Wisconsin registered

voters had birth certificates, did you?

A. I did not.

Q. Or whether they could get birth certificates, did you?

A. No, I did not.

Q. You did not examine whether any Wisconsin registered voters

had the underlying documents necessary to get an ID card, did

you?

A. No, I did not.

Q. So it is not your conclusion -- it's not your conclusion

that 317,000 Wisconsin registered voters lack a form of

identification that would allow them to vote under Act 23.

A. As I stated, that is the number that do not have a matching

driver's license or state ID.

Q. Okay. It's not your conclusion that those people cannot

vote under Act 23.

A. It is my conclusion that they don't have a matching driver's

license or state ID.

Q. I just want to try this one more time: You're not telling

the Court that those people can't vote under Act 23, are you?

MR. ULIN: Objection. The question's been asked then


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713

answered twice.

MR. LENNINGTON: I asked a yes-or-no question, I

didn't get an answer.

THE COURT: I think he did answer twice. You can ask

a third time if you want.

BY MR. LENNINGTON:

Q. I just want to ask, I want to make perfectly clear you're

not telling the Court that those people, 317,000 people, cannot

vote under Act 23, you're not saying that, are you?

MR. ULIN: Same objection, Your Honor.

THE COURT: Yeah, I guess -- go ahead, answer the

question.

THE WITNESS: There may be some that can recover with

that. I have no data on that.

BY MR. LENNINGTON:

Q. Okay, thank you. So your conclusions here today only relate

to two forms of identification that would allow someone to vote

under Act 23, correct?

A. The predominant forms of identification.

Q. Mr. Beatty, who hired you as an expert witness in this case?

A. I believe it was the Advancement Project.

Q. The Advancement Project hired you. And when were you hired?

A. I first was hired to work on Texas in 2011, and shortly

after that was retained to work on Wisconsin.

Q. Okay. Has the Advancement Project paid you for this


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714

testimony?

A. No.

Q. Are they supposed to pay you for this testimony?

A. I believe that I will be paid.

Q. Have you sent them an invoice?

A. I have.

Q. Now, you utilized a database of registered voters from the

Government Accountability Board, the GAB; is that correct?

A. That is correct.

Q. And one of the fields in the database for the GAB database

is a state ID number; is that correct?

A. That is correct.

Q. And that's in there because when people register to vote in

Wisconsin they may write down their driver's license number; is

that correct?

A. That is correct.

Q. Now, you did not consider registered voters with a state ID

number in their voter registration file to be registered voters

with a state identification card or driver's license, correct?

A. I did not consider them to have a matching driver's license

or state ID card.

Q. Did you consider state ID numbers at any point in your

three-step process?

A. They were a guide. In the final round when we got the new

file the best unique string I could build included the state


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715

driver's license number as well as first name, last name, date

of birth and ZIP.

Q. And your conclusions and analysis is located in the expert

reports that you submitted, correct?

A. Yes.

Q. Okay. And so in which expert report and where does it talk

about you using a state ID number as part of your analysis?

A. I don't know that I went into detail. It was a one-page

declaration. But to answer your question, it was a

consideration in that last round.

Q. So you considered state ID numbers as part of your analysis

to determine whether someone had a matching state ID card or

matching state driver's license number.

A. It was a portion of the -- of the second iteration.

Q. That was part of your analysis but you didn't include it in

any of your expert reports.

A. No, just generally in attempting to match various

combinations.

Q. What was that last part?

A. I did say I attempted to match various combinations.

Q. So when you say that you matched various combinations you

meant to say one of those combinations included the state ID

number and the GAB database.

MR. ULIN: Objection. Misstates the witness's prior

testimony.


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716

THE COURT: Witness may answer.

THE WITNESS: It was not determinate, but even in the

first round, as I pointed out the first time I went through it,

I tried to treat it as if it were, in fact, a worthy ID number

but when I discovered that people -- different people could have

the same number, I discounted it pretty quickly.

BY MR. LENNINGTON:

Q. So these people who have the same number, how many people

have the same number? Was this the 82,000 or 85,000 people who

have the same number? Is that what you were talking about?

A. No. I rejected the use of that in the first round once I

discovered that it was not a unique identifier.

Q. Okay. So how many people have the same number in the State

of Wisconsin?

A. I don't recall.

Q. Is there one person in the State of Wisconsin?

A. No, there is more than one, there's more than 10, there's

more than 100, but I couldn't tell you the exact number right

now.

Q. How do you know there's more than one person in the State of

Wisconsin with the number of somebody else in the State of

Wisconsin?

A. By matching the driver's license number out of the voter

file with the driver's license number from the DMV whether it's

a driver's license or state ID, and then checking to see if the


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717

names and date of birth matched.

Q. So you have a state ID, the registered voters right here,

and some of them have ID numbers, right? And then you've got

the DMV database over here and some of those people have numbers

and you combine them and there's some matches with just the

numbers, correct, but they're different people?

A. But they're different people.

Q. And you don't know how many there are, but you know there's

some.

A. I know there's some. I know there were too many for it to

be accepted as a unique identifier.

Q. And is there anywhere in your expert reports that you detail

how many people share the same number with someone else?

A. No.

Q. Now, another part of your testimony concerns the ethnic

breakdown of those who you claim do not have matching driver's

licenses or state ID cards, correct?

A. Who do not have matching driver's license or state ID cards.

Q. Correct. But you did not personally determine which of

these registered voters were Asian or black or Hispanic or

Native American or white, did you?

MR. ULIN: Objection. Misstates the witness's prior

testimony.

THE COURT: The witness may answer.

THE WITNESS: Did I personally go through and judge


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718

each one? No, I did not.

BY MR. LENNINGTON:

Q. You hired -- in other words, you hired Ethnic Technologies

to do that, correct?

A. Right. I hired the best in the field.

Q. Did you directly hire them?

A. In the sense --

Q. That Leland Beatty hired Ethnic Technologies, yes.

A. I made a recommendation and I assume it's the Advancement

Project that paid for that. I do not know.

Q. So you didn't pay them.

A. I did not.

Q. Did you have a written contract with them?

A. I did not.

Q. Did you ever see a written contract that explained exactly

what Ethnic Technologies was supposed to do?

A. No.

Q. So you provided the name, address, date of birth of 317,000

Wisconsin residents to Ethnic Technologies, without any written

agreement.

A. I believe that it was the name element and the geocode, the

latitude and longitude.

Q. So the name and the latitude and longitude of 317,000

Wisconsin residents was provided to an out-of-state company

called Ethnic Technologies.


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719

A. That is correct.

Q. Was there any protections that you ensured that this data

was handled correctly and to guard against privacy or any other

problems that may come up with this data?

MR. ULIN: Objection, relevance. Beyond the scope of

the direct examination.

MR. LENNINGTON: Shows how careful he is with the data

that he was entrusted.

THE COURT: He may answer.

THE WITNESS: I have a long-standing relationship and

I found them to be trustworthy providers who code my file and

return it.

BY MR. LENNINGTON:

Q. Have you ever heard whether Ethnic Technologies has misused

any data?

A. I have not.

MR. ULIN: Objection. Relevance. Move to strike on

that ground.

THE COURT: Overruled.

BY MR. LENNINGTON:

Q. So it sounds to me like someone at Ethnic Technologies took

your data and they imputed that data into a computer program

called E Tech 7.2?

A. That's correct.

Q. When the results came out, did someone at E Tech verify


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720

those results?

A. I'm not sure I know what you mean.

Q. Did they process them any further or did they just give you

what came out of E Tech 7.2?

A. They just returned my file to me.

Q. The file that was returned to you, do you believe it's

important to test the accuracy of that file?

A. What do you mean "test the accuracy"?

Q. I'm going to hand you what's been marked as Defendants'

Exhibit 1106.

Can you identify this as an e-mail string between you

and Candace Kennedy in August 2013?

A. Yes.

Q. And in the middle of the page that's an e-mail that you

sent, correct?

A. Yes.

Q. This e-mail says: We're now approaching trial on the voter

ID matter, and I wanted to check in on your current policy.

Expert validation from Ethnic Technologies would obviously be of

great help, and we would expect to fully compensate for the

expertise. If your policy is the same, I would like to do a

telephone survey of a sample from the ethnicity matched records

asking respondents to self-identify ethnicity, projecting

accuracy by comparing the self-identification against the Ethnic

Technologies match.


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721

Did I read that correctly?

A. No.

Q. Okay.

A. It says "I will likely."

Q. Oh, "I will likely do a telephone survey."

Do you believe, as you wrote here, that expert

validation from Ethnic Technologies would obviously be of great

help?

A. Insofar as the State of Wisconsin, you, challenged the

notion that Ethnic Technologies was, in fact, the market leader

and produced a superior product, I thought it would be good for

them to be able to lay that out.

Q. And --

A. I did not need it for myself.

Q. It's your understanding that the State of Wisconsin

challenged Ethnic Technologies' bona fides in August of 2013?

A. That, in fact, I don't remember exactly when. That was June

of 2012 when I read the Hood supplemental.

Q. Okay. So you don't believe that expert validation from

Ethnic Technologies would obviously be of great help.

A. Great help to you.

Q. Okay.

A. Not to me.

Q. So it says that I'll likely do a telephone survey of a

sample.


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Why would you do a telephone -- what does it mean to

do a telephone survey of a sample?

A. To pull a sample --

Q. So Ethnic Technologies sends you the data and you pull a

sample out of there, right?

A. Yes.

Q. And then you call those people and say "What's your race?"

A. In a nutshell, yes.

Q. So is it more accurate to conduct a survey -- is it more

accurate to conduct a survey asking people to self-identify

their race compared with what Ethnic Technologies does?

A. No.

MR. STEINER: Objection.

BY MR. LENNINGTON:

Q. So Ethnic Technologies --

THE COURT: He answered, but overruled. Go ahead.

BY MR. LENNINGTON:

Q. Ethnic Technologies' process of geocoding and onomastics is

more accurate to determine someone's race than calling them up

on the phone and asking them what their race is?

A. It has the potential to be, depending upon how well you've

constructed a survey sample and what kind of response rate you

get.

Can I refer you to previous --

Q. The other --


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723

A. -- experience?

Q. Well, we'll get there in a second. I just want to make sure

I get this right.

It's your expert opinion that Ethnic Technologies'

process is more accurate than self-identification through a

survey.

MR. ULIN: Objection. Misstates --

THE COURT: Sustained. Don't ask him a question that

doesn't exactly represent what he said.

BY MR. LENNINGTON:

Q. Okay. What's more accurate? Telephone survey with

self-identification or Ethnic Technologies' process?

MR. ULIN: Asked and answered.

THE COURT: You may answer.

THE WITNESS: Ethnic Technologies' process is

determined. Telephone surveys depend heavily on the

construction of the survey instrument, the company used to do

the calls, the response rate, the completion rate. There are

many risks in that.

BY MR. LENNINGTON:

Q. Are you qualified to do a telephone survey?

A. I do them often.

Q. I'm going to hand you what's marked as Defendants'

Exhibit 1103. Is this an e-mail string between you and Karen

Sinisi of Ethnic Technologies in June of 2012?


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724

A. Yes, it is.

Q. In the middle of that page, in blue, does it represent an

e-mail from you to Karen Sinisi?

A. Yes, it does.

Q. And does that paragraph say: The group I'm working with

would like to engage the appropriate person at Ethnic

Technologies as an expert witness purely to explain your method

for race matching and to establish the reliability of that

method and will compensate for time.

MR. ULIN: Objection. Relevance.


BY MR. LENNINGTON:

Q. Are you the person here who is going to establish the

reliability of that method?

A. I'm sorry. I didn't see that there.

Q. In the middle of the page it says that you are working with

the group who would like to engage the appropriate person at

Ethnic Technologies as an expert witness. Do you see that?

A. Yes. You asked me if that's what it said. Yes, that is

what it says.

Q. Then it says: Purely to explain your method for race

matching, correct?

A. Yes.

Q. And then it says: And to establish the reliability of that

method, correct?


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725

A. Yes.

Q. Are you the person who is going to establish the reliability

of Ethnic's method?

A. Are you asking me --

Q. Are you, Leland Beatty, here to establish the reliability of

Ethnic Technologies' method?

A. I'm happy to establish reliability of Ethnic Technologies'

method.

Q. I'm going to hand you what's marked as Defendants'

Exhibit 1104.

MR. ULIN: Just note for the record, Your Honor, that

the defense exhibits above 1103 are not among the exhibits

submitted to the Court.

THE COURT: Okay.

BY MR. LENNINGTON:

Q. Does this reflect an e-mail between you and Karen Sinisi of

Ethnic Technologies from June of 2012?

A. It is the e-mail, the series of e-mails between us.

Q. Did you write in this e-mail that the E Tech match helped us

make our case and now the legal process requires me to defend

the accuracy of the match?

MR. ULIN: Objection. Calls for a legal conclusion.

THE COURT: I guess the question was -- what was the

question? Did he write that?

BY MR. LENNINGTON:


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Q. Yeah, did you write that?

A. I did write that.

Q. Has anybody, to your knowledge, defended the accuracy of the

match that Ethnic performed? How would one go about defending

the accuracy of the match?

A. I would refer you to the National Cancer Institute's test

and what they discovered.

THE COURT: Gotta get a little closer to the mic.

THE WITNESS: I would refer you to the National Cancer

Institute study. Cancer researchers have a very high standard

for accuracy.

BY MR. LENNINGTON:

Q. Does that article defend the accuracy of the match that you

performed in this case?

A. I did not perform a match.

Q. Ethnic performed a match?

A. Yes, using the same process.

Q. And has there been any process or method undertaken by

anyone that has looked at the accuracy of the match that Ethnic

gave you?

A. Not that I'm aware of.

Q. I'm handing you what's been marked as Defendants'

Exhibit 1105.

MR. ULIN: What number is this, please?

MR. LENNINGTON: 1105.


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727

BY MR. LENNINGTON:

Q. Is this document an e-mail string between Karen Sinisi and

you from June of 2012?

A. Yes, it is.

Q. In the middle of the page did you write in this e-mail: We

really need an expert witness who can establish the credibility

of your analytics. We will pay. We don't expect the expert

witness to take sides, only to establish the reliability of the

data.

Did you write that?

A. I did.

Q. Have you found this expert witness who can establish the

credibility of your analytics?

A. I'm not really qualified to define "expert witness." I used

those words. I have no idea what the qualifications of an

expert witness is, and it may have been inappropriate for me to

use those words. What I was looking for was something in

response to the State of Wisconsin, who questioned this.

Q. In 2012?

A. Yes.

Q. Our deposition was last week. Wasn't that correct?

A. Yes.

Q. Okay.

MR. ULIN: Objection. Misleading. There were two

depositions.


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728

THE COURT: Okay. Okay. Next question.

BY MR. LENNINGTON:

Q. So do you or do you not believe what is written here that

you said we really need an expert witness who can establish the

credibility of your analytics?

MR. ULIN: Objection. Relevance. Asked and answered.

Calls for a legal conclusion.

THE COURT: I'll allow him to answer.

BY MR. LENNINGTON:

Q. Do you believe that, sitting here today?

A. Do I believe that you were going to challenge Ethnic

Technologies and that it would help to have someone there --

from there explain their process so that you could understand

it? Yes, I believe that would be good.

Q. Thank you.

MR. LENNINGTON: Your Honor, I move for the admission

of Exhibits 1103, 4, 5, 6, and 7.

MR. ULIN: We object on the ground of relevance.

MR. LENNINGTON: Excuse me, not 7. 1103, 4, 5, and 6.

THE COURT: I'll admit them.

BY MR. LENNINGTON:

Q. Your conclusions are that non-white Wisconsin registered

voters will be significantly and adversely impacted by the

Wisconsin voter ID law; is that correct?

A. That is correct.


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729

Q. Yet you did not determine how many non-whites had qualifying

IDs in Wisconsin or how many whites had qualifying driver's

licenses.

A. I did determine that.

Q. So how many non-whites have qualifying IDs in Wisconsin?

A. I'll have to find the actual numbers, but of --

Q. Yeah, I believe maybe we're misunderstanding each other.

When I use the phrase "qualifying IDs," I mean all of

the qualifying IDs, not just the driver's licences and the state

ID card.

A. I've answered that.

Q. Okay. Did you determine the rate at which Wisconsin

registered voters possess qualifying IDs?

A. I believe I've answered that.

MR. ULIN: Objection. Asked and answered.

THE COURT: I'm sorry? He may answer. I think you

did answer.

MR. ULIN: He did answer. I withdraw the objection,

Your Honor.

THE COURT: Okay.

BY MR. LENNINGTON:

Q. You testified about mail that was intended to go to black

households but it was accidentally sent to white households. I

don't understand what you meant by that. Could you explain

that?


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730

A. I didn't say "accidentally."

Q. Okay.

A. I said "intended." When mail is intended -- you can

typically send mail that's intended for white households to

African-American households and you don't experience a lot of

feedback. But if you send mail that's intended for

African-American households to white households, there is often

feedback.

Q. What is feedback? First of all, what is mail intended for

black households? I don't know what that means.

A. We segment markets just the way any marketer would do. And

when there's the cultural sensitivity is such in the white

households if they feel like a piece of mail is not appropriate

to them, they bring it up.

Q. What does it mean to be appropriate for them?

A. Depends on the campaign.

Q. Are you saying that there may be a flyer from a candidate

that has pictures of African-Americans on it and then pictures

that have white people on it and they intend to send the

pictures with African-Americans to African-American mail

addresses but the white recipients to white addresses? Is that

what you're trying to say?

A. That would be a very crude example and not anything I've

done.

Q. I didn't mean to be crude about it. I just didn't know what


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731

you were saying.

A. Well, if there is a respected figure in the community

providing insight into an election, that credibility figure

matters a lot. And when we send mail to a household intending

to have credibility with them, we want to have that credibility.

We can make -- when that mail intended for the white

households and whoever that community figure is that is

providing that advice or guidance goes to an African-American

household, in my experience I don't get a lot of feedback from

it.

When I send mail intended with a figure of credibility

in an African-American neighborhood to a white household, I

often hear about it.

Q. And how do you hear about it?

A. Well, people call me, people call the campaign. They say,

"Who do you think I am?" They object, "Why are you doing this?

I won't vote for your guy."

Q. And how long have you been involved in this process of

direct mail?

A. You mean in any --

Q. In any case.

A. In any capacity?

Q. Yeah.

A. Oh, 40 years.

Q. Guess that says a lot about our culture.


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732

MR. ULIN: Are you testifying now, Dan?

THE WITNESS: You can draw your conclusions. I just

try to get it right.

BY MR. LENNINGTON:

Q. You said that Ethnic will break up names such as first name

and determine whether it's decisive. Can you explain that?

A. Yes. First names are really a cultural expression, a

personal cultural expression of the namer. They have real

meaning to the namer. Doesn't matter what race it is, they have

real meaning to the namer.

Often because they've kept such good records for such

a long time on so many people, they've been able to identify

those names that are particular to -- those first names that are

particular to different ethnicities and races. And it's a big

indicator much of the time of not so much the ethnicity of the

child but the ethnicity of the namer, who is most often, almost

always, a parent.

Q. And sometimes that is decisive.

A. Sometimes that is decisive.

Q. And Ethnic Technologies determines when it's decisive,

correct?

A. Yes.

Q. And they have some sort of an algorithm or a computer

percentage that determines what is decisive. Is that your

understanding?


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733

A. There are names that are unique, truly unique to certain

ethnicities and races. Other people don't name their children

with those names.

Q. What I'm saying is that you don't know how Ethnic

Technologies determines whether a particular name -- Bob or

Larry or Steve -- is decisively white.

MR. ULIN: Objection. I'm sorry. Objection.

Misstates the witness's prior testimony.

THE COURT: You can answer. I think you got the idea

what he's getting at.

THE WITNESS: Whether or not it's decisively white --

it's more likely decisively Chinese, decisively

African-American, decisively Latino. That's what it is. White

people don't name their children that.

BY MR. LENNINGTON:

Q. But there's some sort of mathematical formula that Ethnic

must use in order to determine this because it's put into a

computer program, right?

MR. ULIN: Objection. Misstates the witness's

testimony. We're bordering on badgering the witness,

Your Honor.

THE COURT: It doesn't quite restate what at least I

heard from Ethnic. Why don't you rephrase it.

BY MR. LENNINGTON:

Q. Do you know what constitutes a decisive match according to


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734

E Tech 7.2?

MR. ULIN: Objection. Asked and answered.


THE WITNESS: They have maintained records over time.

They have cooperated with the largest databases in the country

with records from every household in the country. And they have

built databases and tested them, done the research over time,

and have built databases with tens of thousands if not hundreds

of thousands -- tens of thousands, 78,000 I believe is the

latest count of ethnically or racially unique first names.

BY MR. LENNINGTON:

Q. You used the word "we" many times, as in we did this or we

did that. Is there more than one person who worked on this

project?

A. I am the we.

Q. You're the we. Royal we.

A. Editorial we, I like to think.

Q. You also talked about a hand-matching process. Where is the

hand-matching process described in any of your expert reports?

A. It's not.

Q. Okay.

A. They're just trying to recover and match as many as I can.

Q. Comparing your 2012 analysis and your 2013 analysis, is it

true that there are less overall unmatched registered voters?

A. There's a smaller number, yes.


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735

Q. Is it true that more Wisconsin residents have the free state

ID today than they did in 2012?

MR. ULIN: Objection. Lacks foundation. Calls for

speculation. Beyond the scope of the direct examination.


THE WITNESS: Could you restate the question?

BY MR. LENNINGTON:

Q. Did you receive numbers in 2012 about how many people had

free state IDs?

A. Is that different than -- what I received is the database of

state IDs. There was no distinction in that between free and

not free.

Q. Okay. What I'm saying is, when I say "free state ID," I

just mean the nondriver's license state ID card.

A. Did I receive that --

Q. Yes, did you receive that.

MR. STEINER: Objection. I think the witness has

testified that his files had both together, ones that you paid

for and ones that are free.

THE COURT: He may answer. I'm not sure what the

question is now.

BY MR. LENNINGTON:

Q. The question is this: Did you receive a file that had

everyone who had driver's licences in the state?

A. Yes.


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736

Q. And was there a separate file for who had the state ID

nondriver's license file?

A. Yes.

Q. In 2012 there was a certain number of people in that file

for who had the state ID card, correct?

A. Uh-huh.

Q. And you got an updated file in September of 2013, correct?

A. Yes.

Q. Is the number for 2013 higher than the number for 2012?

A. It is both higher but also had a higher number of duplicates

of people that also had a driver's license.

Q. What's the string of information that you submitted to

Ethnic Technologies?

A. I didn't submit a string. I submitted distinct fields:

first name, last name -- first name, middle name, last name, and

as I recall, just the geocode information, although it may have

had an address field in there.

Q. So sitting here today, you don't know exactly what you

submitted to Ethnic Technologies.

MR. ULIN: Objection. Misstates his prior testimony.

THE WITNESS: I'd have to go back and look at --


MR. LENNINGTON: I think it's answered. I'll move

along.

BY MR. LENNINGTON:


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Q. Ethnic did not match 9 percent of your unmatched voters,

correct?

A. That is correct.

Q. I have some guess about this 2012 -- or this Exhibit 212,

the cancer study. Do you have that in front of you?

A. I can have it here. Yes.

Q. Page 5. I have a question about one issue in this report.

A. Okay.

Q. Do you see where it says: Discussion methods of race -- of

methods to estimate race?

A. Yes.

Q. It says: Although E Tech was nearly perfect in estimating

white race when participants were self-reported white, it

misclassified 52 percent of the sample's self-reported black

participants as white.

A. Right.

Q. Okay. And so as I read this, they took a sample of what

E Tech did, correct?

A. Yes.

Q. And then they did a survey and asked people what their race

was, correct?

A. That's correct.

Q. And 52 percent of the time for African-Americans, it was

wrong.

A. It underestimated -- it undercounted African-Americans.


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738

Q. 52 percent of the time, correct?

A. In this case.

Q. And that was E Tech's process.

A. This was before the new version came out. And that at that

point in time was an extraordinarily good number.

Q. Did you say that you relied on Exhibit 212 to form your

opinion of how credible E Tech was?

A. Insofar as you read the totality of this, they say that

Ethnic Technologies provides a significant improvement over

other ways of filling in the blanks.

Q. Let's turn to Exhibit 213, Plaintiffs' Exhibit 213. It's

this report from Pablo Mateos.

A. Uh-huh.

Q. You used this report as a basis to verify whether Ethnic

Technologies was accurate or reliable?

A. What this does is establish the onomastic technique. It is

not based specifically on Ethnic Technologies.

Q. So the words -- the company Ethnic Technologies is not

mentioned anywhere in Exhibit 213, correct?

A. And it's not about Ethnic Technologies but rather about

onomastic techniques.

Q. And the same with 214. Ethnic Technologies is not mentioned

in that report either.

A. No.

Q. Or Exhibit 215 either.


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739

A. No. Merely about onomastic techniques and their

reliability.

Q. When you mentioned your work for private companies --

Strike that. I'll move on. This, at the very end of

your testimony, I believe you talked about a belt and suspenders

approach where people get the state ID card and have a driver's

license?

A. Yes.

Q. Is that your understanding of what happens in the State of

Wisconsin?

A. My understanding is that many people have both a driver's

license and a state ID.

Q. In the State of Wisconsin?

A. Yes.

Q. And what's the basis of that opinion?

A. Because I took your state ID file and your state driver's

license file and I matched them together.

Q. Do you know that people with valid driver's licences are not

allowed to get state ID cards in the State of Wisconsin?

A. And yet it appears that they do.

Q. Do you know that the Department of Motor Vehicles will not

issue a state ID card to someone who has a valid driver's

license?

A. And yet apparently they have.

Q. What's the difference between your total unmatched number


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740

and Hood's total unmatched number?

A. I would have to refer to -- in which round, the first round?

Q. The current number. I think your number is 317,000; is that

correct?

A. That's close.

Q. Do you know what Hood's number is?

A. I don't have Hood's study in front of me, so I cannot say.

Q. Okay. You testified also about people who show up at the

polls and answered several questions about what happens when

people show up at the polls. What's your understanding of what

people do when they show up at the polls in the State of

Wisconsin? What do they have to present or do?

A. My understanding is that the purpose of the voter ID law is

that you present, although it's enjoined now, but should it take

effect you present a photo ID and the identifying information on

the photo ID needs to substantially match the voter's record.

Q. In the poll book?

A. Whether it's in the poll book -- whatever you call it. I

don't know what you call it. I know there's a record.

Q. Do you know what information has to match?

A. I know from -- I did know. I'm not sure that I would get it

right if I answered right now. I know that you have election

day registration which is the reason I focused, and so addresses

may change. What I know from looking at Wisconsin and Minnesota

with same day registration is that the vast majority of that are


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741

address corrections, people who have moved. So that's another

process. If you bring the documentation for your address change

you can do election day registration. But that leaves names and

dates of birth.

Q. So sitting here today, you don't know under Act 23 what is

supposed to match at the poll.

A. I have had that in my mind but I cannot pass the oral exam

at this moment. I know I built my match strings upon Act 23.

Q. Thank you.

THE COURT: Anything more?

MR. ULIN: Very brief, Your Honor.

THE COURT: Okay.


BY MR. ULIN:

Q. Mr. Beatty, we had some testimony both on direct and cross

concerning the accuracy of Ethnic Technologies' estimates --

A. Uh-huh.

Q. -- of the breakdown of populations by race; do you recall

that?

A. Yes.

Q. And it was your testimony that those estimates are quite

accurate in your experience and based on your review of

literature as it relates to the identification of white

individuals; is that correct?

A. Yes.


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742

Q. And also with respect to the identification of Latino

individuals; is that correct?

A. Yes.

Q. And also with respect to the identification of

Asian-American individuals; is that correct?

A. Yes.

Q. And with respect to African-Americans it was your testimony

that the accuracy of the match has improved -- has improved over

time; is that correct?

A. Yes.

Q. And improved significantly in the Version 7 identification

technology that was implemented by Ethnic Technologies after the

National Cancer Institute study was published; is that correct?

A. Yes.

Q. And with respect to the inaccuracies in -- with regard to

numbers of African-American identities that have been discussed,

how does that inaccuracy trend?

A. It's an underidentification. For African-Americans they

underidentify African-Americans by about 10 percent.

Q. In other words, to the extent that Ethnic Technologies

identifies the number of African-Americans in a certain

population there are likely, based on your experience and review

of the literature, to be more African-Americans in that

population than Ethnic Technologies would identify; is that

correct?


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743

A. That's correct.

Q. So therefore when Ethnic Technologies identifies a number of

African-Americans lacking matching photo identification cards or

driver's licences in the State of Wisconsin, in your experience

there are likely to be more African-Americans not matching than

are identified by Ethnic Technologies; is that correct?

A. Yes, that is correct.

MR. ULIN: Nothing further, Your Honor.

THE COURT: Thank you. You're excused.


THE COURT: Next witness.

MR. STEINER: The plaintiffs call Tamara Grigsby.

THE COURT: Okay.

TAMARA GRIGSBY, PLAINTIFF WITNESS, DULY SWORN

THE COURT: Okay. Have a seat. State your name for

the record. Spell your name and talk real close to that

microphone, please.

THE WITNESS: Tamara Grigsby. T-A-M-A-R-A.

G-R-I-G-S-B-Y.

DIRECT EXAMINATION

BY MS. ROTKER:

Q. And Representative Grigsby, we appreciate your patience in

waiting for us today.

Ms. Grigsby, this is for the record so don't laugh

what I ask, but what is your race?


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744

A. I'm African-American.

Q. Thank you. And where do you live?

A. 2341 North 41st Street.

Q. And that's in the city of Milwaukee?

A. Yes.

Q. And what is your education?

A. I have a bachelor's degree in psychology and a master's

degree in social work from UW Madison.

Q. At the University of Wisconsin.

A. Yes.

Q. Okay. And what is your current occupation?

A. I work for Milwaukee Public Schools, I'm the manager of

parent and community engagement.

Q. And what was your job before that?

A. State representative for the 18th assembly district in

Milwaukee.

Q. And when did you leave the legislature?

A. I left the legislature in January of 2013.

Q. And why did you leave?

A. I left because I had some health issues that came up, and in

addition to that I thought it was time to make other moves.

Q. How many terms were you a legislator?

A. Four.

Q. And you said it was the 18th assembly district, what were

the demographics of your district?


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745

A. The district served about 65,000 people, it was

overwhelmingly African-American. More than half of the district

is African-American. Overwhelmingly people who are under what

we consider the poverty level. A younger demographic. People,

you know, with lots of different challenges, I would say.

Q. Thank you. And just to clarify for the record, you're here

today testifying based on your experience as a legislator, not

on behalf of MPS or for the school district.

A. Absolutely, right.

Q. Okay. In terms of the constituents in your district how did

you see your role?

A. My role was and still is to be a voice for the people that I

represented. So I would take what I heard on the streets to the

capitol. That's the way I always put it, that I would be a

voice for the people and express what I heard in my district to

try to impact state law.

Q. When you say a voice for what you heard on the streets, are

you using that literally or figuratively?

A. I'm really using it literally.

Q. In what way?

A. Well, if you called me and told me you had an issue I would

take it up, and I would try to see how it could -- how it could

be addressed and then also see if it was a trend, see how it

could impact or how I could impact state law to make sure that

it didn't continue to be a trend.


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746

Q. Okay. You gave testimony on the voter ID law in 2011?

A. Absolutely, I did.

Q. I'm showing you what's marked as Frank Plaintiffs 589. Do

you recognize that?

A. Yes, I do.

Q. And that is a copy of the testimony you submitted to the

legislature in January 2011?

A. Yes, it is.

Q. And how was your testimony prepared?

A. I have a -- I had a staff, team, that does my research and

got some data. I can't at this point speak to the sources. But

we always had sources, very credible ones to validate our data.

MS. ROTKER: Move to admit.

THE COURT: Okay.

MS. LAZAR: No objection.

THE COURT: Okay.

BY MS. ROTKER:

Q. As your testimony shows you were concerned about certain

groups of voters who might not have ID, correct?

A. Yes.

Q. And you told the legislature that you were concerned about

these groups, correct?

A. Yes.

Q. And those groups included African-American and Latino

residents; is that correct?


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747

A. Yes.

Q. Did the legislature respond to you by saying something like

well, maybe we should do a study and see if this race issue

really exists or, you know, we should investigate this or we

need to respond to this?

A. No, that's not the response I received.

Q. What was the response you received?

A. That we pass -- we push through a bill to have voter ID.

Q. Were you contacted by your constituents about the voter ID

bill?

A. Yes.

Q. Would you say it was a significant number of constituents?

A. Yes. When the bill came up there were numbers, numbers of

calls that myself and my staff received concerned about how this

would impact their right to vote -- or their family's or

relative's or whomever. People they knew.

Q. And can you give examples of some of the kinds of reasons

that your constituents were concerned.

A. I would say probably the most common was people who had

elderly family members who could not obtain birth certificates

or didn't -- were not mobile so they could not go through the

process to what it takes to get a state ID or a driver's

licence.

Q. Did anyone contact you with concerns about costs for things

like birth certificates?


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748

A. Yes.

Q. What were those concerns?

A. Well, the concern was simply that I have to pay for this and

why should I have to pay for this in order to go and vote around

the corner.

Q. Were there any people who indicated whether or not they

could afford those birth certificates?

A. Yes.

Q. And what did they say?

A. That -- well, just the same thing: Why should I have to pay

when I have a very limited income, basically pay to vote?

Q. And were there constituents that came to you with concerns

about getting to DMV?

A. Yes.

Q. And what did they say?

A. I have to take the bus, I have to take two buses, maybe even

three buses to get to the DMV to vote or take a bus to get to --

you know, to get my birth certificate and then take a bus to get

my driver's license and then take a bus to vote and -- you know,

let's not start about buses.

Q. We may do that in a bit. And as you said -- well, let me

step back a second.

So you received these concerns from your constituents

and you shared them with your colleagues in the legislature?

A. Yes.


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749

Q. Above and beyond your testimony at the hearing.

A. Oh, yes. And I testified in committee, in both Senate and

assembly committees, and I testified on the floor. I talked to

my colleagues on a one-on-one level. Yes, so I definitely

expressed my concerns.

Q. Okay. But you did not feel that there was responsiveness to

those concerns.

A. No.

Q. Now let me rephrase. That voter ID law came up in your last

session of the legislature, right?

A. Yes.

Q. In that last session were there other issues in which you

also felt there was a lack of responsiveness to the concerns of

minority communities?

A. Yes.

Q. And could you give examples of some of those.

A. That last session was filled with a series of issues that

were not responsive to communities of color. I would say I mean

just from what I've just jotted down just things that I've been

thinking about.

We had a bill around racial profiling that was very

heated. Some of the gun laws that came up and passed. Healthy

Youth Act which I was the author of was very much controversial

which did not go in the right, in my opinion, in the right way.

Unemployment, subsidizing unemployment was a big deal.


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750

Q. What I'd like to do is go back and ask you more details

about some of these before, if that's okay.

So you said that there was a bill about racial

profiling again in your last session. Again, can you explain

what you mean by that?

A. Well, for over a decade there has been an effort to

understand whether or not people are racially profiled when

they're pulled over by the police.

Q. Okay.

A. And it's been very difficult to get the state to commit to

studying that.

Q. Okay.

A. And so we finally got a law passed, the session prior, that

would require police and law officials to document the racial

ethnicity of the people that they were pulling over. And it was

a statewide effort. You know, so this new law required that the

state -- or not the state but that the law officials or law

enforcement documented the race and ethnicity of people they

were pulling over in an effort to determine whether or not we

were disproportionately pulling over people of color or whether

we were pulling over people with -- whatever the case was, we

were trying to figure out what the trend was. So --

Q. And then what happened in the last session?

A. And then eventually as soon as that passed the next session

came in and then that was repealed. So there had been lots of


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751

money invested across the state. This was a statewide

investment. And it was repealed and we didn't -- we just let it

go.

Q. And so did your constituents contact you about the repeal of

racial profiling data collection?

A. Yes. I did hear from people who were saying, well, why did

you stop doing this. We were really excited that, you know, you

were actually going to look at this and now why did you stop.

Q. And did you pass those kinds of concerns or your own

concerns on to your colleagues in the legislature?

A. Absolutely.

Q. More than once?

A. Whole bunch of times.

Q. And yet the repeal nevertheless passed, right?

A. Yes.

Q. You also said you had some concerns again in terms of your

constituents, your predominantly minority constituents about the

gun laws, could you briefly explain what you mean by that?

A. In that session we also passed the concealed carry law as

well as the castle doctrine. The concealed carry law allows you

to carry an armed, you know, concealed gun. And the castle

doctrine allows you to have a legal defense to pretty much shoot

to kill if somebody comes on your property and you feel

threatened. And that's a concern for me.

MS. LAZAR: Objection, Your Honor, relevance on this


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752

entire line of questioning.

MS. ROTKER: Under the Voting Right Act a legislator's

lack of responsiveness to the needs and concerns of minority

communities is a factor that the Court is to consider.

MS. LAZAR: Your Honor, I'm not quite sure how

concealed carry or castle doctrine would have any relevance or

reflect any difference in racial communities or minority

communities. This is a law that has to do with the entire

state. I don't know that that law itself has any distinction

that is relevant to this case or the factors.

MS. ROTKER: Could I allow the witness to answer?

THE COURT: Well, if she can -- maybe she can connect

it. I'll give her the opportunity to attempt to connect it.

BY MS. ROTKER:

Q. Representative Grigsby, can you explain how that law had

relevance to minority concerns and why you were concerned about

it?

A. Specifically, the gun laws?

Q. Yeah.

A. Well, it's relevant to minority communities because we have

an overwhelming problem with violence that is disproportionately

affecting communities of color. And it also is very much

connected with the what I consider to be a very hostile

environment in the legislature as far as minority concerns which

directly is connected to what we're talking about here today. I


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753

think it is a hostile environment and a lack of recognition of

the needs of a certain population in the State of Wisconsin.

MS. LAZAR: Your Honor, respectfully I don't know how

a law like the castle doctrine, which applies regardless of what

the ethnicity of the homeowner is, has an implication in the

minority community.

THE COURT: Well, I think that's what the questions

are attempting to elicit. I'll allow her to pursue this to

somewhat limited --

MS. ROTKER: I'll try to -- if it's okay I'll try to

shorten up the question.

THE COURT: That would be okay.

MS. ROTKER: I could talk faster but I don't know that

the court reporter would appreciate that.

BY MS. ROTKER:

Q. How did you see -- when you said the gun violence in the

communities you were talking about concealed carry, right? That

was your concern?

A. Uh-huh.

Q. How do you see -- again can you briefly explain how you see

the castle doctrine relating to minority communities?

A. Well, the castle doctrine allows for someone to use a gun

basically against someone that they feel threatened by without

any real legal -- I mean with no defense. At the end of the

day, the concern -- I mean let's just talk about what's real


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here. Okay, so what's real is that, you know, there is a young

man named Travon Martin --

MS. LAZAR: Your Honor, complete objection to

relevance at all to this case.

THE COURT: Um --

MS. LAZAR: Different laws, different state, different

rules.

THE WITNESS: Okay, can we talk about then Wisconsin?

Can we talk about maybe Beau Morrison?

BY MS. ROTKER:

Q. And Beau Morrison was a young African-American man who was

shot and killed, right?

A. Yes.

Q. In a suburb of Milwaukee.

A. Yes, in a suburb very close to Milwaukee.

Q. Shortly after the castle doctrine.

A. Few weeks.

Q. And your constituents, you and your constituents felt that

these were racial concerns.

A. Yes. There were huge demonstrations and protests against

the castle doctrine because it had -- the concern was that we

had passed a law that would allow for people to, if they felt

threatened, however that threatened was determined, to shoot to

kill people and the concern was that that would be used

irresponsibly against African-American men.


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Q. Thank you. Briefly again, you said you were concerned about

the rejection of federal unemployment compensation funding, and

why was that a concern for minority -- for your constituents,

minority communities in particular?

A. Because there is a phenomenon called black male unemployment

in this state, and particularly in my district. And I keep

saying in my district because I'm technically not elected

anymore but it's still my district. But I had wards that were

80 percent of black males who were unemployed.

Q. Okay.

A. So unemployment is a really, really, really big deal in my

district, and we have the opportunity to get federal funds to

help extend unemployment and we turned them down.

Q. And again, briefly, the Healthy Youth Act, which if I may

paraphrase, had required -- was your bill and had required

medically accurate information in schools; is that correct?

A. For 12 years Milwaukee had the second highest teen pregnancy

rate among African-American females in the nation.

Q. And you were trying to resolve that.

A. And we tried to resolve that through requiring any school

district that had a human growth and development curriculum to

include information about STD prevention and pregnancy

prevention.

Q. And you said that Milwaukee had a very high African-American

teen pregnancy rate, is there a racial component to STD --


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A. Yes. We have one of the highest -- in the top -- I'm not

sure what the number is, it's in the top 10 in the nation, HIV

and AIDS rates for 18- to 24-year-old African-American people in

the nation.

Q. And so what happened in the last session of the legislature

with the Healthy Youth Act?

A. So I was a author of the bill and it passed and the schools

began to implement a curriculum that included information on

safe sex and STD prevention and teen pregnancy prevention and

invested, very much so, in providing this curriculum and the

very next session we, they, repealed it. So --

Q. Again, that was the last session of the legislature.

A. Yes.

Q. And is it fair to say that on all these issues, the gun laws

you talked about, unemployment compensation, Healthy Youth Act,

you communicated with your colleagues, you expressed your

concerns, not just concerns generally but about the racial

effects these laws would have?

A. I would say that's a fair statement.

Q. And when -- would you express yourself just once?

A. I would say maybe twice.

(General laughter.)

A. Yes. I was very, very vocal. Very, very vocal on these

issues.

Q. I just want to ask you one question. Can you think of an


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example prior to the last legislative session where you also

felt that the legislature was not being responsive to minority

-- or legislature and state government not being responsible to

community concerns?

A. Yeah. There were so many different issues. If I had to

think of something, I would talk about one of my biggest battles

as a legislator was the RTA battle, which is the regional

transit authority, where we attempted to determine a permanent

funding stream for public transit in Milwaukee.

Q. And that is a racial issue. Why is that a racial issue?

A. Because we know -- again going back to unemployment, we know

that people do not have access to cars. People don't have cars.

A lot of people.

Q. People of color disproportionately?

A. Yes, absolutely. I mean, I live on 41st and North Avenue.

I am in the center of what people call "the hood" so I see

what's going on, I know what's going on, I'm a part of what's

going on. It's my community. And people do not have cars and

they rely on the bus to get to work, to get to school, to do

their grocery shopping, to do whatever they do. And we are on a

string trying to maintain our bus system.

Q. Now, this is not even in the last legislative session. This

was in the prior one you attempted, you struggled to pass an RTA

which would have provided funding for the bus system, right?

A. Yes.


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Q. And what happened to that bill?

A. It didn't pass.

Q. Okay. I just want to clarify something on the record.

By the way, when I said earlier did you raise these

issues of racial justice in your concerns. And more than once,

and you said maybe twice, was that tongue in cheek? Did you

really only raise them twice?

A. No. I raised them very often. Through press releases, on

the radio, on TV, and screaming on the floor, whatever it took.

Q. Thank you. I also just want to ask you, you said you live

in what you call "the hood."

A. I don't want to go on record calling it "the hood" but --

Q. Well, you used that term. You live in the central city. Is

that a fair statement?

A. Yes.

Q. Do you recall before the 2012 election cycle seeing any

billboards in your neighborhood?

A. Yes.

Q. What do you recall of the billboards?

A. I remember seeing billboards that said voter ID is a felony.

Q. Voter ID is a felony?

A. I mean -- not voter ID. I'm sorry. I can't remember the

exact wording but --

Q. Voter fraud, maybe, is a felony?

A. Voter fraud, maybe, is a felony. I saw one that says


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something about ID and, you know, but it was basically a very

intimidating message that should you try to vote that you could

be under suspicion and you need to be concerned about that. I

mean -- and it was very questionable why these billboards were

popping up.

Q. When you say "popping up," did you see one? Did you see

more than one?

A. Oh, I saw a few.

Q. And were they just along the highway or were they in the

neighborhood?

A. No. They were in the city. They weren't on the highway.

They weren't on the highway. And as someone who was a state

legislator that traveled back and forth to Madison half of the

week and traveled on the highway -- I also served on joint

finance for two terms so I traveled all around the state -- I

didn't really see those billboards anywhere else except for in

my neighborhood.

Q. Just in your neighborhood or in the City of Milwaukee?

A. Well, maybe they were other places in the City of Milwaukee,

but I saw them -- I noticed them mostly in my neighborhood or my

district.

Q. And did you receive any complaints from your constituents

about these billboards?

A. Well, people were asking me who is behind this? Why are

people trying to -- are people trying to tell us not to vote?


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Where is this coming from?

Q. So you actually had constituents convey to you that they

felt those billboards were trying to suggest somehow they

shouldn't be voting.

A. Right, yes. That was exactly the message.

Q. And did you speak publicly about that?

A. Yes.

Q. What did you do?

A. Well, in my testimony against the bill I talked about, I

mentioned the billboards. I also tried to figure out the source

of where they were coming from. Never really got a clear answer

on that, who was funding it or where it was coming from, but I

definitely tried to look into it.

Q. Thank you. And let me just ask the last question again.

Just to be clear, you've given us some examples today

of issues and concerns where you felt like the legislature and

things that were not responsive to minority communities. Are

these the only ones or if we had longer than I suspect most

people in this room would want to take --

MS. LAZAR: Objection, Your Honor, leading, if we get

there.

BY MS. ROTKER:

Q. Were these the only ones or would you -- are there other

examples? I'm not asking you to list them. Are these just

examples?


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A. These are like the ones that jump out.

MS. LAZAR: Objection. Leading.

THE COURT: I think the question was are these the

only ones? I'll allow that question. You may answer.

BY MS. ROTKER:

Q. Were those the only ones?

A. No.

Q. Thank you.

CROSS-EXAMINATION

BY MS. LAZAR:

Q. Good evening, Ms. Grigsby. My name is Maria Lazar. I'm one

of the assistant attorney generals defending the defendants in

this case.

You indicated that you saw your role as being the

voice for the people you represented. You took what you heard

to the capital to impact state laws. Is that correct?

A. Yes.

Q. So you were responsive to the needs of your constituents;

isn't that correct?

A. I believe I was.

Q. And do you believe that responsiveness to constituents means

that your side always has to prevail or are there other

representatives being responsive to their constituents as well?

A. I don't understand the question. What is my side?

Q. Your constituents.


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A. My primary objective was to represent my constituents and

their concerns.

Q. Are you aware that there was a program with Act 23 where

individuals could get free state IDs?

A. Yes.

Q. Are you aware there's a program within the City of

Milwaukee, Milwaukee County actually, which gives free birth

certificates to individuals born in that county?

A. That part I was not aware of. But there are lots of

constituents that I have that were not born in Milwaukee County.

Many, including both of my grandmothers who now live in

Milwaukee.

Q. You mentioned the Healthy Youth Act. Isn't it true or are

you aware that the City of Milwaukee had a goal to reduce that

rate and has more than achieved it earlier than their deadline

of 2015?

A. Yes, I do know about the progress and I believe the progress

is a result of some of the changes that were implemented after

the Healthy Youth Act was passed.

Q. You indicated that it wasn't passed.

A. No, it was passed. It was repealed.

Q. All right. You indicated that black people don't have cars.

In your neighborhood in the inner city, aren't there white

people who live there as well?

A. Well, yes, there are white people that live there as well.


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Q. And wouldn't you agree that poor white people, some of them

may not have cars as well?

A. Yes. If you're asking about the demographics of my district

though, it would be --

Q. No, I was just asking if some white people don't have cars

as well as black people don't have cars.

In your Exhibit Number 589, that's the summary or

statement of your testimony before the Senate committee; is that

correct?

A. Yes.

Q. The back of your statement which is page 2, it's

double-sided, talks about voter ID being unnecessary. However,

you also mentioned that there have been criminal charges for

voter fraud in Wisconsin; is that correct?

A. Yes. It does indicate that there were 24 criminal charges.

Q. Are you aware of the convictions that have been accomplished

lately in Milwaukee County regarding voter fraud. For example,

Leonard Brown?

A. No, I am not familiar with the specific cases that have been

charged or prosecuted, no.

Q. Okay. Do you believe that every citizen has the right to

cast a vote?

A. Absolutely.

Q. And that their vote should count?

A. Absolutely.


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Q. And do you believe that no one should have the ability to

void someone else's vote?

A. Absolutely.

Q. And you believe that no one should be able to cast an

illegal vote?

A. Yes.

Q. And do you believe that voter confidence and the integrity

of the elections and the electoral process is important in our

democracy?

A. Uh-huh, depending on how you define it.

Q. How I define what?

A. Integrity.

Q. Integrity of elections. Do you believe that voters should

have confidence that elections are legal, that people are

casting legal votes and not illegal votes?

A. Yes.

Q. Do you believe that if the public does not have confidence

in the integrity of an election, as I just defined it, or the

electoral process, it damages legitimacy of government?

MS. ROTKER: Objection. Foundation. She's not an

expert on the legitimacy of government, and that's bordering

into trying to get her into expert territory.

THE COURT: She can answer.

THE WITNESS: Could you ask the question again?

BY MS. LAZAR:


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Q. Absolutely. And I'll try to say it exactly as I said it

before, so we'll see if I can get it.

Do you believe that if the public does not have

confidence in the integrity of an election, and that is as I

defined it before, or the electoral process, it damages the

legitimacy of government?

A. I have to pause and ask a question. I don't know who to ask

it of.

Q. Well, actually you have to answer my question.

THE COURT: Do the best you can to answer the

question.

THE WITNESS: Okay. I agree with what you're saying,

but I think that it's worded in a way that needs some

clarification. But yes, the way you -- yes.

MS. LAZAR: Okay. Thank you very much. Thank you for

coming, thank you for staying. Thank you.

THE COURT: Ms. Grigsby, I think you're excused.

Thank you.


MR. ULIN: Your Honor, the plaintiffs call JoCasta

Zamarripa.

JOCASTA ZAMARRIPA, PLAINTIFF WITNESS, DULY SWORN


record, spell your name, and talk real close to that microphone.

THE WITNESS: Yes. Jocasta Zamarripa. J-O capital


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C-A-S-T-A. Zamarripa, Z-A-M-A-R-R-I-P-A.

DIRECT EXAMINATION

BY MR. CORSON:

Q. Good evening, Representative Zamarripa.

Could you tell the courts where you live?

A. I live on the Near South Side of the City of Milwaukee.

Q. How long have you lived on the Near South Side of Milwaukee?

A. My whole life.

Q. What's your current position in the legislature?

A. I'm a state representative to the assembly.

Q. What district do you represent?

A. Eighth assembly district.

Q. And where is that located?

A. On the Near South Side of the City of Milwaukee.

Q. How long have you had that seat?

A. I was elected in 2010, inaugurated at the beginning of 2011.

Q. Can you tell me a little about what background you had in

politics prior to that election?

A. I was a very, very active volunteer from the time I was

young. Went on to work on campaigns before I made the decision

to try being a candidate myself.

Q. What were some of the campaigns you worked on before you

ran?

A. Well, most notably my most active campaign was in '04. I

volunteered on the presidential back in '04. John Kerry was


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running for president. I was very, very active and committed to

that presidential campaign in '04.

Q. And what was your experience on that campaign? What did you

do?

A. I knocked on doors in my community and helped get the word

out about the election and tried to encourage folks to come out

and vote on election day.

As I said, I had never been more involved on political

campaigns until that year on that campaign. And we actually

opened up an office in my -- in what is now my district on the

Near South Side on Chavez Drive, and we called it Unidos con

Kerry-Edwards. U-N-I-D-O-S, second word is C-O-N, and then

Kerry-Edwards.

Q. Prior to 2004, had you also done door-to-door volunteer

efforts and voter outreach and campaigns?

A. Prior to 2004? Yes. But I was the most focused -- I became

very focused in '04 on those efforts.

Q. In 2004 I'm guessing from the name of the office were your

efforts focused on the Latino community?

A. Yes.

Q. Tell me, how did that election turn out for you?

A. We lost that year. And it was a tough one for me because I

had been so involved in it.

But one of the -- I always tell people that one of the

great things about '04 was that I became very knowledgeable


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about my district, much more so than I had ever been, and I

learned that I lived in the district that consistently has the

lowest voter turnout in the State of Wisconsin. And I made the

decision I feel that year that this would probably become my

work, that I'd be dedicated to increasing civic engagement,

increasing the voter turnout in my eighth assembly district and

in my Latino community.

Q. Is the population in the eighth district significantly

Latino?

A. Yes. The eighth assembly district is home to the largest

Latino community in the great State of Wisconsin.

Q. And one more question on 2004.

Setting aside the outcome of the campaign you were

working on, what was your personal experience at the conclusion

of that campaign?

A. So as I said, we lost the election in '04. John Kerry was

not the victor, and it was a particularly tough one for me. I

remember the day after the election driving back to the office

on Chavez Drive, the campaign office, and it was closed. It was

already closed, and this was the day after the election.

It was another component, another element of my

decision that this would be my -- this would be what I would end

up doing for my -- it would be my goal to increase civic

engagement and make sure that we make sure that we invest in

communities earlier and longer and truly increase voter turnout


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769

and truly increase civic engagement in underrepresented

communities, in particular the Latino community.

Q. And so you wanted a more sustained commitment in your own

life than what you saw in 2004?

A. Absolutely.

Q. When did you decide to run for elected office yourself?

A. I decided towards the end of '07 to run for office and be a

candidate myself. I ran for common council in a February

primary in 2008, spring primary.

Q. And what's the district or the region in which you ran?

A. It was the 12th Aldermanic District on the common council

here in the City of Milwaukee. It's the same area that I now

represent in the state assembly.

Q. And so that's also a heavily Latino electorate in that part

of the city?

A. Largest Latino population in the common council, aldermanic

district.

Q. Who held that seat before you ran that year?

A. That was held by a long time incumbent, Jim Witkowiak.

Q. Is he Latino?

A. He is not.

Q. Let me back up for one moment and say, for the record, can

you state what is your racial background?

A. I am Latina.

Q. What kinds of voter outreach or engagement with your


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electorate did you make in the campaign for the aldermanic

office?

A. I went door to door for the aldermanic campaign, talked to

voters, tried to get them to support my candidacy. Didn't have

the -- I wasn't as organized or as strategic in that campaign.

I was not victorious. I did not win that election.

Q. Did you lose in a primary or general?

A. I lost. I came in third in a five-way primary.

Q. Who else was in that primary?

A. There were five candidates running: the incumbent, Jim

Witkowiak; myself; also Angel Sanchez; Freya Neumann,

N-E-U-M-A-N-N, F-R-E-Y-A.

Q. Who were the others?

A. It was myself, Jim Witkowiak, Freya Neumann, Angel Sanchez,

and there was another candidate -- unfortunately, he wasn't a

very active candidate I cannot recall his name right now.

Q. And who won that primary?

MR. KAWSKI: Objection. Relevance.

Where are we going, Your Honor?

MR. CORSON: Your Honor, one of the factors you're

going to be asked to consider at the end of this case as part of

the Senate factor analysis is the ability of African-American,

Latino, and other racial minority voters to elect candidates of

their choosing, including in districts where they have an

electoral majority.


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THE COURT: I'll allow the question. But --

MR. CORSON: I will keep it brief.

THE COURT: Okay.

MR. CORSON: We will keep it moving.

THE COURT: Okay.

BY MR. CORSON:

Q. Who won that election?

A. The primary?

Q. Uh-huh.

A. Jim Witkowiak and Angel Sanchez came through the primary,

with Alderman Witkowiak winning the general that year.

Q. Tell me about, in your experience campaigning for election

and talking to voters, what are some of the things that make

voter turnout among the Latino community in your district so

low?

A. There are a number of factors I believe that contribute to

the low voter turnout in my district.

I believe oftentimes that the candidate can inspire

civic engagement. I believe that when Latino candidates run in

a Latino majority district, I believe that that can inspire

civic engagement and increase voter turnout. For a long time we

didn't have Latino elected officials.

I think other factors contribute to low voter turnout.

A lot of my constituency are low income and are oftentimes

working one or more jobs, second shift. They've gotta take the


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kids to school in the morning, they don't have time -- they feel

they don't have time to head to the polls or cast their vote, or

just the lack of candidate information around who was running.

There are various factors.

Q. Are there voters who are eligible who have never voted?

A. Yes.

Q. Are there many of those voters?

A. Unfortunately, yes.

Q. What things do you think make people who could vote choose

not to?

A. I think laws like the voter ID law discourages. Even though

it's blocked right now or was blocked in 2012, I believe there

are still voters -- that were voters that didn't head out to the

polls to vote because they heard about some law that makes it

harder to cast their vote on election day. So they're going to

choose to stay home on that day.

Q. After your aldermanic race, you ran in 2010 for the seat you

now hold; is that right?

A. That's right.

Q. And you won that election.

A. Yes.

Q. Was your campaign experience in that election consistent

with your prior work in the Latino community in your district?

A. It was. I continued to see -- and I continued to see -- we

continue to see a slight increase in Latino civic engagement and


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Latino voter turnout. Unfortunately still very low, but

nevertheless there's excitement around Latino candidates now

emerging and running. And I believe that excitement shows in

the fact that we're seeing these slight bumps in Latino voter

turnout.

Q. Who held that seat before you were elected to it?

A. Pedro Colon. P-E-D-R-O, C-O-L-O-N.

Q. Who is Pedro Colon?

A. He is now a Milwaukee County Circuit Court judge. He was

the first Latino elected to the state legislature.

Q. When was that?

A. 1998.

Q. Do you see a difference in your district between those who

traditionally vote and less traditional voters?

MR. KAWSKI: Objection, Your Honor, relevance. We

have not gotten to the Senate factor, which I'm going to read

for you. The factor that the Court is to consider is whether

there is a significant lack of responsiveness on the part of

elected officials to the particularized needs of the members of

the minority group.

None of this testimony has anything to do with that,

Your Honor. So I'm going to object to relevance.

MR. ULIN: Your Honor, there are nine Senate factors,

including among which is the success of minority candidates in

electoral politics. This is clearly relevant to that. It's a


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multifactor test. The list is also exemplary and not meant to

be exclusive.

THE COURT: I'll let him continue. He promised to

move quickly so -- please do.

MR. CORSON: I will keep my promise, Your Honor.

BY MR. CORSON:

Q. Do you see a difference in your constituency in the

tradition and the nontraditional voters?

A. Do I see a difference? I certainly see -- my traditional

voters -- and when I say "traditional," I mean my consistent

voters that come out in every primary do tend to be my older

seniors, usually white voters. Those are my consistent voters

that will come out every primary, they'll come out every

general.

My nontraditional voters tend to be younger, tend to

be people of color, in my district tend to be Latino.

Q. And are those nontraditional voters the same people who you

earlier indicated might be discouraged from voting by laws such

as Act 23?

A. Yes.

Q. You are familiar with Wisconsin Act 23, the voter ID law,

correct?

A. Yes.

Q. In fact, you were in the legislature when it passed, true?

A. That's right.


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Q. In fact, you actually sit on the assembly committee on

election campaign reform, don't you?

A. I still do.

Q. And this law went through that committee on its way to

passage, correct?

A. That's right.

Q. Do you remember when the law was enacted? Approximately.

A. I believe it was the summer of 2011.

Q. Did you continue working on campaigns after the summer of

2011 when the law was passed?

A. Yes.

Q. What were some of the experiences you had engaging with

voters after the law had been passed?

A. A lot of my voters, a lot of my constituency had bits and

pieces of information around the voter ID bill and the voter ID

law. People didn't know where we were at the time.

If you remember, the law passed, it was in place, we

were pushing -- I was pushing my constituents to make sure that

they had their voter ID. Then the law was blocked and we were

still pushing voters to get their voter ID, even though they

didn't necessarily need it the most immediate next election.

So voters, constituents, they had bits and pieces of

the news around voter ID, but truly the general sentiment was

the legislature just made it harder for us to vote.

Q. Did you take steps yourself to educate voters about the law?


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A. Absolutely.

Q. What did you do?

A. From my legislative office I put together a one-pager, a

double-sided, one-pager kind of a Q and A letting my

constituents know where we were at, what was in place now with

voter ID, where they could obtain a free ID to ask for the -- to

make sure that they asked for a free ID for voting, just all of

those basic questions and answers that I thought my constituents

needed to have all the information around voter ID. But it did

become dated very quickly with the injunctions that were then

coming out blocking the law.

Q. Did you see other outreach efforts to educate voters about

the law?

A. Yes.

Q. Who made those efforts?

A. A lot of nonprofit organizations, groups, people who wanted

to educate our constituencies on voter ID and make sure that

they had their ID.

We were still pushing -- I remember it had already

been blocked but we did not know what would be in place by the

fall elections, so we were still encouraging our constituents to

get that voter ID. So there was -- there was a lot of -- even

for learned people like myself, it was a confusing time and it

was a very stressful time because we didn't know what -- I

didn't know that my constituents would have everything that they


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needed to cast their vote on the next election day.

Q. Do you think it was at least that confusing to your

constituents?

A. More so.

Q. Do you think it was especially confusing to Latino voters --

withdraw the question.

Do you think it was any more confusing to Latino

voters than to white voters?

MR. KAWSKI: Objection. Calls for speculation.

BY MR. CORSON:

Q. Based on your years of experience campaigning in that

district and your firsthand experiences talking to voters in

that district, did you hear confusion from your Latino voters

about Act 23?

MR. KAWSKI: Same objection. It's a comparison

between white and Latino voters.

THE COURT: I'll allow her to answer.

THE WITNESS: I believe that my Latino voters,

especially those that may have a language barrier that may

struggle with their English or that may be Spanish preference, I

think that they struggled a bit more to have all the information

in front of them around voter ID.

BY MR. CORSON:

Q. Are there other factors that might make it confusing for

that community in particular? By "that community," I mean the


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Latino community.

A. I think that there are a variety of factors that affect --

are you asking about general voter turnout or we're still

talking about the law?

Q. Talking about this law in particular. Are there other

reasons why you think they would be confused about this law or

other laws that affect voting administration?

A. I believe that people again only had bits and pieces of what

was going on that day, was it blocked or was it not blocked. I

mean even we kind of the progressives that were out there, the

organizations that I mentioned, even when it was blocked we were

still telling our constituents go and get an ID even though the

truth was it was enjoined, it was blocked, but we were doing it

to ensure just in case something else came up and it was

unblocked. We were doing it so that they would have the ID if

it came down to it and they did, in fact, have to have it for

the fall elections.

Q. You said before that you think the law discouraged Latinos

from voting, correct?

A. Yes.

Q. Why is that?

A. I think the law discourages many underrepresented groups

from voting because it just -- it encourages -- it discourages

folks from heading out because they don't know if they have --

they don't even know if they have the appropriate -- they may


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have the appropriate identification, but, again, they've gotten

bits and pieces of news around the law and they just error on

the side of caution if you will and then which means they don't

cast a vote on election day because they'd rather play it safe.

Q. So are there other factors that also discourage this

constituency from voting?

A. Yes. I believe the low voter turnout can be based on

everything from again my constituents -- I have a constituent

that works 11 to 9:00 o'clock at night and before that they were

taking the kids to school and before that they don't have

transportation and they already have all of these barriers in

front of them that they work hard to overcome to head to the

polls on election day. Voter ID is yet another barrier in my

opinion.

Q. So income is one of those factors?

A. Yes, I believe so.

Q. Access to transportation?

A. Definitely.

Q. Language barriers?

A. Language barriers, very much so, especially in my district,

again, the largest Latino community in the state. I have many

eligible voters, U.S. citizens who absolutely have the right to

vote but who prefer to speak in Spanish who can be easily

intimidated or embarrassed or discouraged from voting on

election day because of that.


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Q. I'd like to move to talking a little bit about the actual

passage of the law in the assembly when you were there.

Do you remember that the bill which was then AB-7 and

became Act 23 went through the committee you sat on the assembly

committee on election campaigns reform?

A. Yes.

Q. Did you do a public hearing on it?

A. Yes, we did.

Q. Do you remember if you took written comments before that

hearing?

A. Yes.

Q. I'd like to hand the witness what's marked as our

Exhibit 773. And this is in the binders for the convenience

because it is a long document I've created a copy that is

paginated, the original is not.

THE COURT: This is LULAC 773?

MR. FOSTER: Correct.

BY MR. FOSTER:

Q. Can you take a quick look at this document and tell me if

this appears to be a copy of the written submissions to the

assembly committee on election and campaign reform at the time

leading up to the and 27, 2011 hearing on AB-7?

A. Yes, it is.

Q. Can you turn with me to what's been marked and I have tape

flagged so we can do this quickly, what's been marked as page 89


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of 183 in the copy I handed you?

MR. KAWSKI: I'm going to object to this exhibit as

both hearsay and lack of foundation. For one, the witness

hasn't laid any foundation for why she would know what any of

these pages are. Maybe she's about to, but I'll lodge the

objection now.

MR. FOSTER: Your Honor, I'll answer if you like.

THE COURT: Go ahead.

MR. FOSTER: As to hearsay I'm not offering it for the

truth of any of the contents I'm offering it as data that was

before the assembly at the time of passage which as Mr. Kawski

has pointed out is evidence of the responsiveness of the

legislature to the concerns of the minority community. I also

think it's probably admissible under business records, best

evidence and several other rules including residual hearsay

rule, it is a document that comes from the legislature, it's

available on their website.

THE COURT: It's clearly not being offered for the

truth of the matters stated but to show what documents were

presented to the Wisconsin assembly committee that was

considering this bill and I understand that it's being offered

in connection with the LULAC plaintiffs' attempt to establish

the Senate factors. So it seems to me that it's admissible and

I'll admit it then. Go ahead.

MR. FOSTER: To follow up I would admit for this


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document to be admitted entirely.

BY MR. FOSTER:

Q. If you're looking at page 89, representative Zamarripa, can

you tell me what this appears to be?

A. This is the testimony that was submitted by the League of

Women Voters of Wisconsin.

Q. If you look with me at the last paragraph on page 1 of this

document. It begins there is no evidence of widespread or

organized voter fraud. I'll read a section of this and tell me

if you agree it's what it says. "The State Department of

justice has substantiated 18 cases or 0.006 percent of illegal

voting out of the almost 3 million votes case the in the

November 2004 election. Most of these were felons who were

unaware that they were not allowed to vote. There were a few

cases --"

MR. KAWSKI: I'm going to object to hearsay again.

Why are we reading it if it's not offered for the truth of the

matter asserted?

MR. FOSTER: Your Honor, again it's there to establish

what was before the assembly at the time of passage.

THE COURT: Yeah, overruled.

BY MR. FOSTER:

Q. To avoid reading too much, let me skip to the last sentence

on the top paragraph, page 90: "To date there have been no


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cases where someone has tried to vote using someone else's

identity, the only form of voter fraud that voter ID would

address."

Do you agree that was a statement that was presented

to your committee at the time that this bill was under

consideration?

A. Yes.

Q. I'll ask you to skip with me what's marked on this copy of

what's marked as page 125 of 183. And this is on letterhead of

Nikiya Q. Harris, Milwaukee County Second District Supervisor.

Do you know who Nikiya Harris is?

A. Yes, I do.

Q. Do you know her yourself?

A. Professionally.

Q. Do you know what constituency she represents?

A. Yes. Although she was a county supervisor when she

testified last session she's now state senator, Nikiya Harris

represents a district here in Milwaukee with a large

African-American constituency.

Q. Was that also her constituency at this time?

A. Yes.

Q. If you'll look with me at the second paragraph on this. Do

you agree with me that the first sentence reads: "If enacted

assembly bill 7 would be one of the most restrictive laws in the

country"?


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A. Yes. That was stated -- Senator Harris wasn't the only one

that stated that. I stated it. It was stated several times.

Q. Do you think the legislature had information before it that

argued this was one of the strictest bills in the country at the

time of passage?

MR. KAWSKI: Objection. Calls for speculation.

MR. FOSTER: Your Honor, she was in the legislature.

She knows what was before it.

THE COURT: I'll allow her to answer.

THE WITNESS: I told Representative Stone myself more

than once that it was one of the most restrictive voter ID bills

in the nation.

BY MR. FOSTER:

Q. If you'll move with me to skip a sentence and it says

strictures of the proposed legislation stand to potentially

disenfranchise hundreds of thousands of Wisconsin residents

including minorities, the elderly, disabled, homeless and

college students.

Do you agree that was a concern that was stated to the

legislature at the time this bill was under consideration?

A. Many times it was, yes.

Q. And was that a concern that was stated by Latino and

African-American constituencies in particular?

A. Yes.

Q. Did the legislature make any changes to the law in response


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to that concern?

A. No. Not -- there was a sub that addressed some of the

college ID concerns, but that was all. Nothing that would have

addressed people of color.

Q. Turn two pages with me, please. Attached to this letter

from then Supervisor Harris there's a resolution from the

Milwaukee supervisors, I'm on page 128. Can you read the second

paragraph of that resolution on page 128, please?

A. "Whereas according to a 2005 study by the University of

Wisconsin-Milwaukee, 55 percent of African-American men, 49

percent of African-American women, 46 percent of Hispanic men

and 59 percent of Hispanic women in Wisconsin lack state issued

photographic identification. "

Q. You'd agree that those statistics were before the

legislature at the time of passage.

A. Yes, several times.

Q. Did those represent a particular concern of the

African-American, Latino voters and constituencies at the time

that this bill was under consideration?

A. It was a tremendous concern.

Q. Are you aware of any steps that were taken to amend the

legislation to address that concern?

A. There was none at all.

Q. I'd like to turn back to the front of this document for one

more page. First, can you look at page 1 and tell me what this


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document is, the first in the stack.

A. This is testimony by Mr. Kennedy of the Government

Accountability Board.

Q. Who is Mr. Kennedy?

A. He's -- he is the GAB. Director and General Council of the

Wisconsin Government Accountability Board.

Q. And what is the Government Accountability Board?

A. They are our election commission actually is the way I

explain to my constituents.

Q. I ask you to look the a what's marked as page 8 of

Mr. Kennedy's submission, or page 8 of this whole document. On

the third full paragraph on that page, would you agree with me

it reads: "Many states permit a voter without the required

identification to swear or attest to an affidavit of identity in

lieu of returning with the required identification"?

A. Yes.

Q. Do you understand that to mean a suggestion that was offered

by Mr. Kennedy that the law should be amended to include an

affidavit alternative to the identity voter identification

requirements?

MR. KAWSKI: Objection, relevance. We're talking

about responsiveness to the needs of minorities not to

Mr. Kennedy.

THE COURT: I'll allow it.

BY MR. FOSTER:


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Q. Would you like me to repeat the question?

A. Yes.

Q. Would you agree that that sentence represents a suggestion

made by Mr. Kennedy before your committee that legislation

should consider an amendment to allow an affidavit in lieu of

the limited number photo ID requirements, photo ID forms.

A. Yes.

Q. Are you aware that the legislature adopted any amendments

responsive to that stated suggestion?

A. No. They did not.

Q. Is that a change in the law that you think would have made

it less bad for African-American and Latino constituencies?

A. A little less bad but the entire -- I do not -- I would

never endorse the bill even if they would have accepted several

of our democratic amendments.

Q. Speaking of democratic amendments, do you remember how many

amendments were offered by the Democrats in the assembly when

this bill went to the floor?

A. Many.

Q. What did those amendments try to do?

A. With our amendments we tried to make a very bad bill

slightly better. We always used them as a vehicle to highlight

things in the bill for the public so they would see how

restrictive it was.

Q. Did some of those amendments try to make the bill in your


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788

words slightly better for African-American and Latino

communities in particular?

A. Yes.

Q. Were any of those amendments passed?

A. No.

Q. I'll ask you to look at three examples of those amendments,

please. Representative Zamarripa, I've handed you LULAC

Plaintiff's Exhibits 639 and 640.

MR. KAWSKI: Mr. Foster, if you may pause for a moment

just so I can pull those exhibits.

MR. FOSTER: 639 and 640.

MR. KAWSKI: Thank you.

MR. FOSTER: I'll do two more after these. 605, 606,

and 613 and 614.

MR. KAWSKI: Will there be any others, just so we can

grab them?

MR. FOSTER: My last two will be 579 and 757.

MR. KAWSKI: Thank you.

BY MR. FOSTER:

Q. Representative Zamarripa, have you had a moment to look at

what's marked as Exhibit 639?

A. Yes.

Q. You would agree this is assembly amendment 24 to assembly

substitute amendment -- can you tell me what this document is?

A. This is assembly amendment 24 to assembly substitute


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789

amendment 2 to the 2011 assembly bill 7.

Q. Is that the law that eventually became Act 23?

A. Yes. This is the voter ID bill.

Q. Can you tell me either by reading or paraphrasing what this

amendment sought to do to change the law?

A. This looks like it was the amendment that addressed Kevin

Kennedy's concern. It would have inserted into the bill

language that indicates if any individual -- if any individual

is not able to be present -- is not able to present any of the

documents specified, an affidavit in the form prescribed by the

board specifying the individual's name and address affirming the

individual's identity and stating that this is the address of

the individual's residence. So the individual would be able to

still cast a ballot.

Q. Do you remember if this amendment passed?

A. No. It did not pass.

Q. Is this an amendment that would have addressed somewhat the

concerns of African-American and Latino voters and

constituencies?

A. It would have helped slightly, yes.

Q. If I can ask you to look at Exhibit 640. Can you tell me

what this document is?

A. This is a rollcall on this amendment, if I'm not mistaken.

Yes. This is the rollcall to vote on said amendment.

Q. You would agree the rollcall shows the amendment was laid on


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the table and not passed; is that right?

A. That's right.

Q. Let me ask you, are you familiar with all of the members of

the assembly named on this rollcall vote?

A. Yes.

Q. Are you familiar which of those assembly members are

African-American or Latino or legislators of color?

A. Yes.

Q. If you reviewed this for a second can you tell me if any of

those legislators of color -- if any of those legislators of

color joined the majority to lay this amendment on the table?

A. I know for a fact that would never -- we never supported

AB-7. We would have supported this amendment, we did support

this amendment.

Q. I move to the next one, it's 605. Representative Zamarripa,

I will ask you essentially the same questions. If you take a

moment to review 605, can you tell me either by reading or

paraphrasing what this amendment sought to do. And for the

record this is Assembly Amendment 7.

A. This amendment, this is another assembly democratic

amendment that we offered that would have established kind of a

mobile DMV site in communities. We indicate impoverished

communities or in a first class city in an area identified by

its own five digit ZIP code in which the majority of households

have a family income that is at or below of 150 percent of the


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791

poverty line. So this is an effort to make obtaining a voter ID

easier for our constituent.

Q. Is this an amendment which would have been responsive to

some of the identified concerns of

African-American/Latino constituencies with this rule.

A. Absolutely. There are real concerns with not even having

accessibility to DMVs in Wisconsin.

THE COURT: Why don't we take a couple minutes here.

MR. FOSTER: Your Honor, for the record, I'll have

about five minutes or less. I'm happy to take a break.

THE COURT: We better take a break.

Let me just ask, by agreement the parties, we're going

to do a certain number of witnesses tonight; is that the idea?

MR. KAWSKI: Your Honor, yeah, we have some witnesses

that have been here since about 9:30 so --

THE COURT: It's fine with me. I just want to

understand what you guys had agreed to.

MR. ULIN: I don't think it's totally agreed, but

we're going to work that out. Yes.

THE COURT: Fine.

(Recess taken at 5:34 p.m., until 5:42 p.m.)

THE COURT: Okay.

MR. FOSTER: Thank you. And I believe we were looking

at Exhibit 605. If you'll now look at 606.

BY MR. FOSTER:


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Q. Is that the rollcall vote on the amendment we were just

discussing?

A. Yes. This is the rollcall.

Q. And same question as before, can you review that and confirm

for me that this amendment was laid on the table by the

majority?

A. Yes. This amendment was laid on the table.

Q. And can you confirm for me whether any of the legislators in

the assembly who are African-American or Latino voted to lay

that amendment on the table?

A. No. We supported this amendment that made AB-7 slightly

better.

Q. Thank you. I'll ask you to look at one last amendment.

This is Exhibit 613. For the record it's assembly amendment 11

to assembly substitute amendment 2 to 2011 assembly bill 7.

Representative Zamarripa, if you could review this and

either by reading it or by paraphrasing it, tell us your

recollection of what this amendment intended to do to change the

law.

A. This amendment allowed, if I'm reading this correctly, this

was the amendment that would have allowed Wisconsinites to

access their birth certificate without having to pay a fee. Of

course, our argument is that this is AB-7 voter ID is a poll tax

for voters. This would have made it better and actually help

the bill out in allowing Wisconsinites to access a free birth


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certificate, if I'm not mistaken.

Q. So is this an amendment that would have made the law that

was passed less difficult for African-American and Latino

voters?

A. Yes. That's right. This would have made it less difficult.

Q. How so?

A. Because --

Q. I'll withdraw the question.

Is this an amendment that was responsive to concerns

that were before the legislature, particularly the

African-American and Latino voter community, at the time the

bill was passed?

A. Yes. It was a concern for many under-represented

communities, certainly communities of color like the

African-American community and the Latino community as well.

Q. What's the concern that this addressed?

A. We have many -- and actually senior citizens of all

ethnicities and races are really vulnerable in terms of not

having access to the birth certificate that was issued to them

when they were born. Because they're older or they're from

another state, it's just harder for them to access documentation

like that.

Q. Is your understanding that a birth certificate -- I'll

withdraw the question. Let's look at 614.

This is the roll call vote of the amendment we were


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just looking at, correct?

A. This is the roll call on this amendment.

Q. Can you confirm from looking at this roll call that the

amendment was laid on the table by the majority?

A. That's right.

Q. Can you confirm from looking at this roll call whether any

of the legislators of color supported laying it on the table?

A. I know that none of the black and Latino caucus, none of the

legislators of color, as you said, supported AB-7. And we

certainly would have supported this amendment.

Q. Thank you. I'll ask you to look at just two more. One

question first.

Do you remember if there were other amendments

proposed to 2011 Assembly Bill 7 prior to its passage, in

addition to the three we've just looked at?

A. Yes, there were other amendments.

Q. Do you remember if any of them passed?

A. To my knowledge, no democratic amendments passed.

Q. Do you remember if some of those other measurements would

have also addressed some concerns by Latino and African-American

voters with this law?

A. Yes.

Q. I'll ask you to look at Exhibit 606. Can you tell me what

this is?

A. At Exhibit 606? I don't believe --


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Q. No, I'm sorry. You're right and I'm wrong.

I ask you to look at 579. My apologies. Can you tell

me what 579 is?

A. This is the roll on AB-7 and the bill, voter ID bill.

Q. This is the assembly's -- this document is the assembly's

final vote passing 2011 Assembly Bill 7; is that correct?

A. Yes.

Q. Can you confirm for me that the bill passed?

A. The bill did pass.

Q. Can you confirm for me whether any of the Latino or

African-American legislators in the assembly supported the bill?

A. None of the legislators of color supported this bill.

MR. FOSTER: I have nothing further at this time.

Thank you.

MR. KAWSKI: Your Honor, I have some cross. Just one

moment. I need to grab a whole bunch of documents to bring up

with me.

THE COURT: These are moved in, were they not?

MS. LAZAR: Your Honor, we're a little confused. We

don't know exactly which exhibits were proposed. I have

different numbers like 757 which never came up. Maybe if

counsel could just go through the list that you outlined so we'd

have a list so we know what you --

THE COURT: My list is Exhibits 639, 640, 605, 606,

613, 614, and Exhibits 579 and -- no?


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MS. LAZAR: Yes, that's what I have. But I also heard

that they were mentioning 757, but I don't think it was

introduced.

MR. FOSTER: I did skip 757.

THE COURT: Okay. So it's 579 and not 757.

MS. LAZAR: That's fine.

MR. KAWSKI: And we have no objection to those

exhibits, Your Honor.

THE COURT: Okay.

CROSS-EXAMINATION

BY MR. KAWSKI:

Q. Good afternoon, early evening, night. Not sure.

Representative Zamarripa, my name is Clay Kawski. I'm an

attorney for the defendants in the two cases. I have questions

for you.

First of all, when you were testifying, you said that

you would never support the bill that became voter ID, correct?

A. That's right.

Q. Why was the assembly offering all these amendments?

A. As I said, to try to make a bad bill slightly better. Also

to highlight things about the bill for the public to know how

restrictive the voter ID bill would be if it, in fact, became

law.

Q. So in fact, the assembly amendments that were offered were

not serious. They were not intended to actually amend the bill


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797

and convince anyone to vote for those amendments, they were just

to make a public statement about the fact that the bill was bad.

MR. FOSTER: I object, Your Honor. It's speculation.

THE COURT: She may answer.

THE WITNESS: Everything that we put forth in the

legislature I'm sure -- all my colleagues would agree with this.

We take our work very seriously. So no, everything we put forth

we put forth in a serious, sincere manner.

BY MR. KAWSKI:

Q. Does that mean -- for example, you talked about Exhibit 639,

which was an affidavit exception. Do you recall that exhibit --

A. Yeah.

Q. -- in that amendment. Let's take a look at that one. This

was Plaintiffs' Exhibit 639 in the LULAC case.

On the first page it talks about an individual that is

not able to present any of the documents specified in

Paragraphs A to F, that they might use an affidavit in the form

prescribed by the board specifying the individual's name and

address, affirming the individual's identity, and stating that

this is the address of the individual's residence.

Do you see that?

A. Yes.

Q. Was this proposal something that assembly Democrats would

have found acceptable or would you have found it acceptable?

A. I believe that it helped make a bad bill slightly better.


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798

Q. But you wouldn't have passed the bill even if it included

this.

A. I still would have voted no on the bill even if they would

have taken this amendment.

Q. Recently there was a bill offered in the assembly -- and I

understand that from your testimony that you are on the assembly

committee on campaigns and elections, correct?

A. Yes, I am.

Q. And you, in fact, testified before that committee today.

A. I didn't testify before it. I am on the committee.

Q. Did you offer any written statements or were you present

today at the committee?

A. I was present for part of it.

Q. Did you make any oral statements during that presentation?

A. Yes, I did.

Q. I'm going to talk about those. I was actually, as you were

testifying, looking up a news story in the Journal Sentinel.

And is it your understanding that the bill that's been

recently proposed would provide an affidavit exception to the

voter ID requirement?

A. I'm sorry. I'm just amused that you were watching the

committee today. Can you repeat the question, sir?

Q. Sure. Is it your understanding that the bill that was

proposed in this committee that you sit on, that that bill would

include an affidavit exemption to the voter ID law?


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799

MR. FOSTER: Objection, Your Honor. I'm not sure that

what's proposed now is relevant to the analysis of the law that

was passed in 2011.

THE COURT: Well, she can answer.

THE WITNESS: It's my understanding, yes, that

affidavit is a part of that bill that we heard testimony on

today.

BY MR. KAWSKI:

Q. And did you also issue a press release today criticizing the

bill?

A. Yes, I did. I haven't had a chance to read it yet,

actually.

MS. LAZAR: We have copies.

THE WITNESS: Thank you. I'll take one.

BY MR. KAWSKI:

Q. Did you make a statement at the hearing today that the bill

that's been proposed which would allow an affidavit exception

would, quote: "It will intimidate poor people and then make

them even less likely to go to the polls on election day."

Is that something you said today at the committee?

A. Yes.

Q. And could you explain that?

A. So we have a bill before us in committee right now, not the

bill that we're discussing here, that would -- one component of

it is that an indigent person who considers himself indigent can


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800

declare to the poll worker that they are poor and then be

allowed to vote sans voter ID.

Q. And so what is your concern with that proposal?

A. My concern is that a person has to make an oral and a

written declaration that they're poor to cast a voter ID. And

it's my understanding that the ballot is then marked with a

serial number and then treated as a challenged ballot, although

they are able to cast that ballot.

Q. Is it your understanding that this bill would alleviate some

of the concerns about lack of birth certificates that exist?

A. I'm hesitant to seem like I'm endorsing the bill that you

heard today, because as you read in my press release, I do not

support that bill. But is it attempting to shore up concerns

with voter ID? I believe that it is attempting that.

Q. And I mentioned that you had issued a press release today.

A. Yes.

Q. In the press release -- I'm going to read it to you -- it

states: "Under the guise of preventing voter fraud, Republican

leaders continue their crusade to project their current power in

the legislature despite a similar law currently being contested

in state and federal court."

Does that sound like something that your office issued

today?

MR. FOSTER: Clay, if I can interrupt, do you have

copies of that document for the witness or any of us?


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801

MR. KAWSKI: I don't know if we intend to admit it

into the record, but I do have copies.

THE COURT: Well, let him see a copy and go ahead with

your questioning.

BY MR. KAWSKI:

Q. I'll give you a copy too.

A. Thank you.

MR. KAWSKI: I have one extra one for the Court, if

you'd like one, Your Honor.

THE COURT: I'll go with your paraphrase.

BY MR. KAWSKI:

Q. Do you know -- you comment in here: "Under the guise of

preventing voter fraud, Republican leaders continue their

crusade to protect their current power in the legislature" --

THE REPORTER: Counsel, please slow down.

MR. KAWSKI: Sorry.

BY MR. KAWSKI:

Q. Do you believe that this new proposal, this bill is aimed at

Democrats? You say in here that this is in a -- "Republican

leaders continue their crusade to protect their current power in

the legislature."

Are you suggesting that the bill is aimed at

protecting a Republican majority?

A. I think that bills such as AB-493, which is the bill that we

had a public hearing on today in Madison, I believe that bills


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802

like this discourage communities of people who have a tendency

to vote progressive and Democratic. I do believe that.

Q. Do you believe the bill is directed at minorities?

A. This bill or today's bill?

Q. I'm talking about today's bill, the one that you testified

about today in your committee.

A. Oh, today's bill, AB-493?

Q. Correct.

A. I believe that AB-493 indirectly is trying to address this

bill that we are here in court for today.

Q. And when you say "this bill," you mean Act 23?

A. That's right. I'm sorry. This law. The voter ID law.

And so yes, ultimately it does -- it will end up

affecting many communities of color, people of color, low-income

folks and seniors, actually.

Q. Assembly Bill 493, do you believe that it will in any way

improve Act 23?

A. I think that the Republicans are trying to improve Act 23

with this bill, but I don't think they'll be successful.

Q. Why don't you think they'll be successful?

A. Because I believe that AB-7 is -- and Act 23 is a violation

of the Voting Rights Act.

Q. I guess what do you mean by "successful"? You said you

don't think -- do you think they'll be successful in improving

the law, is my question.


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803

Do you think that if they passed AB-493 that that

would be successful in improving Act 23 and some of the problems

that you've outlined with it?

A. Well, I know for a fact that the Senate has already said

they're not going to take this up. Today's bill that we heard

the hearing on, AB-493, will never become law because the Senate

leaders, the Senate Republicans have already stated we have no

interest in this bill. It doesn't even have Senate co-sponsors.

Q. We had talked about a proposal which was Exhibit 639, the

LULAC Exhibit 639 which was a proposal to allow for an affidavit

exception. Is that not the same type of exception that's been

proposed in the bill that you testified about today?

A. It sounds very similar, yes.

Q. And so the bill that was offered today was offered by

Republicans. This Assembly Amendment 24,

Plaintiff's Exhibit 4639, was offered by Democrats, correct?

A. That's right.

Q. Would you say that there's maybe a meeting of the minds in

some ways?

A. Very good point. But no.

MR. FOSTER: Objection.


THE WITNESS: And I can tell you why. You have to

look at the whole bill, sir. I take AB-493 and when you look at

the entire bill, this mandate that a poor person declare their


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804

indigency, I take great offense to that. And for that reason

and many more, not just -- you can't just look at the affidavit

part. This declaration, this -- and to my knowledge, I believe

it would have to be a verbal and written declaration of

indigency. I think that it will adversely affect larger numbers

of my constituencies. You need only look at the number of

people of color living below the federal poverty level here in

Wisconsin. Black and Latino, we have far more members of our

communities living at or below the federal poverty level in

comparison to our white counterparts.

So I think we're going to have a large number of

indigent people of color having to make this verbal and written

declaration and for that reason I cannot support AB-493, the

bill that we heard testimony on today in committee.

BY MR. KAWSKI:

Q. And isn't that exception in AB-493 only one of three

different possible exceptions that one might offer in affidavit?

A. That's true.

Q. And one of the other exceptions is that the elector cannot

obtain the documentation required to obtain proof of

identification? And one of the other exceptions to which an

affidavit might be used -- or for which an affidavit might be

used is when an elector cannot obtain the documentation required

to obtain proof of identification.

Is that your understanding?


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805

A. I'm sorry. One more time can you repeat it?

Q. Sure. Maybe I'll try and be shorter.

Assembly Bill 493, which you testified about today,

one of the other exceptions for which an affidavit might be used

is when the elector cannot obtain the documentation required to

obtain proof of identification.

A. That's right.

Q. How would -- would that allay some of your concerns about

the voter photo ID law?

A. Slightly, yes.

Q. In what way?

A. Because that is addressing those folks that don't have

access to their birth certificate.

Q. Is it still your position then that you would never support

any version of voter ID?

A. I absolutely would never support any version of voter ID.

Q. You talked about a lack of responsiveness to the needs of --

or the requests of minorities, and I think that's what many of

the exhibits that you testified to would be directed to.

Correct?

A. One more time, sir. I'm sorry.

Q. You testified about a lack of responsiveness in the

legislature to some concerns of minorities, and many of the

exhibits you testified to actually go to that issue, correct?

A. That's right. We pointed out many times in committee the


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806

number of African-Americans and Latinos that did not have valid

identification.

Q. Isn't it true that the bill that became Act 23 was modified

to require the Government Accountability Board to reach out to

some of the affected groups and do a public information

campaign?

A. Yes, I do recall that they're supposed to do some public

service announcements.

Q. And wouldn't that be responsive to these groups?

A. The money that was allotted for the -- to get the word out I

don't believe was sufficient to cover the great State of

Wisconsin. So I certainly appreciate that, but I don't think it

would have been sufficient to only -- to leave it up to the GAB

to get the word out.

Q. Do you know how much money was allocated?

A. I want to say $500,000.

Q. And I'll represent to you that I -- and I previously

represented in court that the entire allocation was about

$2 million, and that was not just for the public information

campaign.

Does that sound correct to you?

A. I can't -- I can't verify it. But if -- I mean, I'll take

you at your word.

Q. And assuming it was 500,000 as you said, in your mind, what

amount of money would have been sufficient?


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807

A. It's -- for me, and I'm not saying -- I'm not being

idealistic. Money of course is important to -- in order to pay

for the literature to pass out. But it's not just money. You

also have to have -- you also have to be there in the community.

You have to been able to speak the language. You have to be

able to communicate with the constituency effectively.

I'm not saying that the GAB doesn't know the assembly

district, but I'm not sure what you're trying to -- if you think

that that would have quelled all the issues with the voter ID

law, I would have to say that you're mistaken.

Q. You mentioned that you had a belief that the law that was

enacted, Act 23, was one of the most restrictive voter ID laws

that you're aware of, correct?

A. Yes, that was. And I actually said that very confidently in

committee last session when we had the public hearing on the

voter ID bill, because the Journal Sentinel had PolitiFacted a

statement that Alderman Milele Coggs made that said that this

would be the most restrictive voter ID law in the country if

it's passed.

Q. Are you aware of the requirements of South Carolina's law?

A. I'm not.

Q. Are you aware that Wisconsin has five additional forms of

identification that go beyond the four that South Carolina has?

MR. STEINER: Objection, Your Honor. I believe that

Mr. Kawski is perhaps inadvertently but misleading the witness


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808

because South Carolina allows a reasonable impediment exception

which is nowhere either in the act that we are litigating or the

--

THE REPORTER: Please use the mic.

MR. STEINER: I believe that -- I believe that

Mr. Kawski's question in trying to present the South Carolina

law and to represent to Representative Zamarripa that it's

somehow less restrictive than the Wisconsin law is perhaps

inadvertently but is misleading to the witness, because the

South Carolina law, which he hasn't represented, includes a

reasonable impediment exception.

THE COURT: All right. Well, she can answer the

question. If she knows what's in the South Carolina law, fine,

if she doesn't she can say so.

THE WITNESS: Unfortunately, I don't know what's in

the South Carolina law.

BY MR. KAWSKI:

Q. Have you done any review of any state's laws other than

Wisconsin's?

A. I'm a Wisconsin girl. No.

Q. But you've represented that you believe Wisconsin's law is

the most stringent photo ID law in the country.

MR. FOSTER: Objection, Your Honor. Misstates the

testimony.

THE COURT: Yeah --


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809

MR. KAWSKI: I can ask a different question.

THE COURT: Yeah, could you?

BY MR. KAWSKI:

Q. Do you believe Wisconsin's voter photo ID law, Act 23, is

the most restrictive in the country?

A. I want to be clear that when we stated that and myself and

Alderman Coggs, and then County Supervisor Nikiya Harris, we

stated that when it was a bill, absolutely. And I believe it

was factual. And it was -- if it was going to be passed into

law, it would be the most restrictive voter ID law in the

country. And I believe that that was a true statement.

I know that a sub was put forth, and Jeff did add some

IDs that would have potentially helped out some of our youth,

our college students. And perhaps then that made it rise a

little bit and be slightly better but overall, Act 23 is a very

bad bill.

Q. Is it your position, then, that Act 23 --

A. Law. I'm sorry.

Q. Is it your position, then, that Act 23 is not the most

stringent voter ID law in the country?

A. I would not say that.

Q. Is it true that the bill that became Act 23, the first

iteration of it did not include passports as a form of ID?

A. That's right.

Q. And it also did not include student ID cards?


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A. That's right.

Q. It also did not include military ID cards.

A. Right.

Q. It also did not include tribal IDs.

A. Right. It was very bad.

Q. And all those things were added.

A. Jeff added a sub, yes.

MR. KAWSKI: Thank you. I have no further questions.

And thank you for your patience this evening.

THE COURT: Okay. Thank you. I believe you're

excused.

MR. FOSTER: May I have a brief redirect, Your Honor?

THE COURT: Oh, okay.

MR. FOSTER: I will be both brief and slow.


BY MR. FOSTER:

Q. With respect to the bill before your committee this morning,

is it possible that the motivation for that bill is to avoid the

consequences of pending litigation?

A. I believe absolutely that's the issue. That's the reason

why they're putting this forth.

Q. Comparing the affidavit requirement you looked at with me

that was considered in 2011 and the affidavit requirement before

the committee this morning, isn't it true that the affidavit

considered in 2011 simply required you to affirm your


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eligibility to vote?

A. Yes.

Q. It did not require you to state that you were indigent, did

it?

A. No, it did not.

Q. Did not require you to state that you were unable to obtain

certain documents, did it?

A. No, it did not.

Q. Is it possible that there are some voters who could obtain

certain documents such as a birth certificate but for whom it is

a burden or difficult to do so?

A. I'm sorry. Can you repeat it one more time?

Q. Is it possible there are some voters who could obtain a

birth certificate or other documents that might let you get an

ID card but it would be difficult for those people to do so?

A. Yes.

Q. Are those some of the same difficulties we talked about

before, such as lack of access to transportation, language

barriers?

A. That's right.

Q. Is general poverty another barrier?

A. Absolutely. Also, as I said, representing the largest

Latino constituency in Wisconsin, I have a diverse community of

Latinos. You know, we know that our Puerto Rican constituency,

they are citizens whether they're born on the island or here.


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There's been issues with access to birth certificates for our

Puerto Ricans.

There are a variety of different reasons why it's very

difficult for my constituents to access a voter ID, to access

whatever they need to then access the voter ID.

Q. You were asked several questions about the outreach efforts

made by the GAB in 2011. Do you have any recollection of a

campaign called bring-it-to-the-ballot?

A. It sounds vaguely familiar. But there were many of us on

the ground trying to get the word out to folks about go get your

voter ID.

Q. When you say "many of us," who are you referring to?

A. Many groups, nonprofit organizations, usually progressive

folks trying to -- other elected's like myself that were working

very hard to inform our constituents around the need to get a

voter ID in time to be able to cast a vote on election day.

Q. You were asked several questions about your press release

today and the possible partisan nature of the bill before your

committee today. Is there a historic correlation between

minority voters and voting for Democrats in Wisconsin?

A. Yes. Minority voters have a tendency to vote progressive,

tendency to vote democratic.

Q. Would a bill that harmed minorities also harm the electoral

prospects of Democrats?

A. Yes, it would.


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813

MR. FOSTER: I have nothing further.


THE WITNESS: Thank you, Judge.

THE COURT: Okay.


MR. STEINER: The plaintiffs call Jeremy Krueger.


JEREMY KRUEGER, PLAINTIFF WITNESS, DULY SWORN


record, spell your name and talk close to the mic.

THE WITNESS: Jeremy, J-E-R-E-M-Y, Krueger,

K-R-U-E-G-E-R.

DIRECT EXAMINATION

BY MS. PRINC:

Q. Good evening, Ms. Krueger, my name is Diane Princ, I'm one

of the attorneys for the Frank Plaintiffs. First I want to

thank you for sitting here all day. I apologize for the delay.

Hopefully this will go fairly quickly.

A. Thanks.

Q. You work in the driver eligibility unit at the Wisconsin

Department of Transportation; is that right?

A. At the time Act 23 was passed, yes.

Q. Okay. When did you leave that unit?

A. Roughly 3 months ago.

Q. Okay. So I'm going to ask you some questions tonight about


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814

your time at the driver eligibility unit. Okay?

A. Okay.

Q. And at the time you were at the driver eligibility unit you

were the lead worker there, correct?

A. Correct.

Q. And as the lead worker you were in charge of the unit that

took calls from customers, right?

A. Yes.

Q. And your unit also received calls from the DMV service

centers around the state, right?

A. Yes.

Q. And some of the questions your team received related to

documents that are required to get a driver's license or a state

ID, right?

A. Yes.

Q. And you both supervised these calls and took some yourself;

is that right?

A. Yes.

Q. Okay. And so you are familiar with the requirements for

getting a driver's license or a state ID, right?

A. Yes.

Q. Okay. On average your unit would receive hundreds of calls

a day; is that right?

A. Correct.

Q. And I believe -- I took your deposition in March of 2012, I


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815

believe you said that you would receive 300 to 500; is that

right?

A. That would sound correct.

Q. Okay. And the average wait time is five to seven minutes;

is that right?

A. If that's what I indicated in my deposition, yes. I would

not remember that data at this point.

Q. Okay. But it's more than an immediate answer or --

A. Correct.

Q. I'm going to ask you some questions about the phone tree.

A. Okay.

Q. Your unit has a phone tree; is that correct?

A. Yes, some of the calls that come in are routed through a

phone tree.

Q. And a phone tree is like an advanced menu for when people

call in; is that right?

A. Correct.

Q. Are you familiar with the photo ID law?

A. Yes.

Q. After the photo ID law went into effect you worked on a

project that was specific to that law; is that right?

A. Correct.

Q. Specifically the project involved updating the phone tree

for customers would have questions about ID; is that right?

A. Yes.


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Q. One of the frequently asked questions was how to obtain an

ID; is that right?

A. Yes.

Q. And one common misconception was that there was a specific

voter ID card that was separate and apart from a driver's

license or a state ID card; is that right?

A. Correct.

Q. And you continued to receive that question until at least

March 2012; is that right?

A. Yes.

Q. And that was almost a year after photo ID law was passed; is

that right?

A. Coming up on it, yes.

Q. You also received questions from customers about how to

indicate that a voter wanted a Wisconsin voter ID law -- let me

rephrase. You also received questions from customers about how

to get a photo ID card as opposed to a driver's license; is that

right?

A. Yes.

Q. And you received questions about what documents were

required to obtain ID; is that right?

A. Yes.

Q. I'm just going to ask a couple questions about the phone

tree training.

A. Okay.


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Q. You were responsible for training the staffers who were on

the hot line; is that right?

A. Yes.

Q. And your training consisted mainly of e-mails and verbal

training; is that right?

A. Correct, yes.

Q. I'm going to ask some questions about obtaining a photo ID.

There are four forms of proof for getting a state ID

or a driver's license; is that right?

A. What types of forms?

Q. There's proof of citizenship and legal presence, right?

A. Correct, yes.

Q. So that's one. There's proof of name and date of birth. Is

that right?

A. Yes.

Q. That's two. Third, there's proof of identity, right?

A. Yes.

Q. And fourth, there's proof of residency, correct?

A. Correct.

Q. From your experience as the lead worker of the driver

eligibility unit are you aware of customers who lack forms of

proof of name and date of birth; is that right?

A. Yes.

Q. And when customers would call about proving name and date of

birth your general response was that they could prove it through


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818

a birth certificate or a passport; is that right?

A. That was generally a response, yes.

Q. I'm going to hand you what's been admitted as Frank

Plaintiffs' Exhibit 30. Do you recognize this document?

A. Yes.

Q. Is this the BDS 316?

A. Yes.

Q. And when you were the lead worker you relied on the BDS 316

most frequently when answering questions; is that correct?

A. Yes.

Q. I'm going to hand you what's marked as Frank Plaintiffs'

Exhibit 38. Do you recognize this document?

A. Yes, I do.

Q. And this is the MV 3002 form; is that correct?

A. Correct.

Q. And the MV 3002 form can be used as proof of name and date

of birth by individuals who lack birth certificates; is that

right?

A. That they're unable to provide a birth certificate, whatever

state they're born in certify that there's no record of that on

file.

Q. So if somebody does not have a birth certificate that's not

on file they can use the MV 3002 to prove name and date of

birth?

A. Yes.


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819

Q. For people who lack a birth certificate the MV 3002 is the

only exception to the other documents listed on BDS 316; is that

right?

A. As far as for proof of name and date of birth?

Q. Exactly, yes.

A. For a U.S. citizen, yes.

Q. But the MV 3002 is not listed on the BDS 316 as acceptable

form of name and date of birth for U.S. citizen; is that right?

A. Correct.

Q. And the MV 3002 form is not listed as an acceptable form of

proof of citizenship on the BDS 316; is that right?

A. Correct.

Q. The MV 3002 is not posted on DMV service centers; is that

right?

A. Not to my -- I guess I would not be able to answer that. I

work at the central office, I'm not in the field stations.

Q. I took your deposition in March of 2012 and do you remember

that?

A. Yes.

Q. And I asked you the same question then and your answer was

no. Do you have any reason to doubt that answer at that time?

A. No.

Q. Okay. And the only way a customer without a birth

certificate can find out about the MV 3002 procedure is if they

go to the service center and ask or call you in your unit; is


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820

that right?

A. That would be one of the ways that they would be able to

find out, yes.

Q. So when people would call in and ask you a question about

proving name and date of birth, if they lacked a birth

certificate you wouldn't always go through the procedures of the

MV 3002; is that right?

A. We would go through the procedures of the MV 3002 or offer

that if we found out that the individual did not have a birth

certificate on file with the state that they were born in.

Q. But if they called and they were unsure you wouldn't go

through it with them at that time; is that correct?

A. Not immediately, correct.

Q. And the reason for that is because the MV 3002 has a lot of

steps to explain; is that right?

A. Yes, that and also most individuals were able to obtain one

after discussing with them, going through some steps, you find

out that they do have documentation. There are a lot of steps

involved with the MV 3002 so you would be sure to go through

those first before going through explaining this document.

Q. Okay. Well, let's talk about the steps of using MV 3002.

When someone needs to use this form because they lack a birth

certificate, they have to fill it out when they get it, right?

A. Fill out this MV 3002?

Q. The first page.


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821

A. Yes.

Q. And they have to send it to their birth state's vital

records office; is that right?

A. That is one of the ways to complete it, yes.

Q. And they have to pay a fee.

A. If that state charges a fee then, yes.

Q. Okay. And then they have to get it back from them with the

certification that there is no birth certificate on file,

correct?

A. Correct.

Q. And then they have to take that document, the MV 3002 along

with another document like a baptismal certificate to the DMV;

is that right?

A. Correct.

Q. And if a field supervisor in the DMV office has a question

about what other documents are acceptable they can call you,

right? Or they could call you.

A. Correct.

Q. But they could also call a regional manager within field

services; is that right?

A. Yes.

Q. And field services is a different unit from the driver

eligibility unit, right?

A. Correct.

Q. Okay. I'm going to hand you what is marked as Frank


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822

Plaintiffs' Exhibit 47. Do you recognize this document?

A. Yes.

Q. And this is a November 21st, 2011 technical training and

services update, correct?

A. Yes.

Q. Now, Exhibit 47 lists information about proof of legal

presence and proof of name and date of birth; is that right?

A. I apologize, can you please repeat that again?

Q. Yeah, of course. Exhibit 47, the technical, I always mess

it up, the technical training and services update, lists

information about proof of legal presence and proof of name and

date of birth; is that right?

A. Yes.

Q. And it says that a customer must submit a signed MV 3002

which shows that they have requested the certified birth

certificate from the state they were born in and the reverse

side must be completed by the state indicating that there is no

birth certificate on file; is that right?

A. Yes.

Q. And must is in all capitals on this document, right?

A. Correct.

Q. So in order to obtain a driver's license or state ID card to

be able to vote a person without a birth certificate has to

contact her home state and then get them to fill this out,

right?


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823

A. Did you indicate that that was for an individual without a

birth certificate?

Q. Yes.

A. Yes.

Q. Now, Exhibit 47 also lists several forms of documents, one

of which must be shown along with the MV 3002; is that correct?

A. Yes.

Q. And according to this a customer must show one of those

documents, right?

A. Yes.

Q. And those documents include a baptismal certificate, a

hospital birth certificate, a delayed birth certificate, a

census record, an early school record, a family Bible record,

and a doctor's record of post natal care; is that right?

A. Yes.

Q. And the technical training and services update gives

supervisors of customer service centers no discretion as to

which documents they can accept along with the MV 3002; is that

right?

A. Did you ask if it gives them no discretion?

Q. Yes.

A. I would indicate that it was a guide.

Q. As a practical matter and according to the driver's license

manual there is discretion about what documents can be accepted,

right?


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824

A. Correct.

Q. And if you when you were the team leader or excuse me if

I -- if you were contacted by a supervisor who felt comfortable

with documents that go beyond what's listed on Exhibit 47, you

would tell them that that was okay.

A. I would indicate that if they were comfortable with it, yes.

Q. All right. I'm going to introduce Frank Plaintiffs' Exhibit

25.

THE COURT: Do you want to move in 47?

MS. PRINC: Yes, Your Honor.

MR. KAWSKI: No objection.

THE COURT: Okay.

MS. PRINC: I also move to admit Exhibit 38. I don't

think that's been admitted yet.


THE COURT: And now you're on 25?

MS. PRINC: I'm on 25.

THE COURT: And you want to move that in too?

MS. PRINC: Yes.


THE COURT: Okay.

BY MS. PRINC:

Q. Do you recognize Exhibit 25?

A. Yes.

Q. Is this an e-mail you drafted in January 2012?


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A. Yes.

Q. And in this e-mail which is dated January 23rd, 2012, you

write that a person who did not have their birth registered with

the state will have to get certification from vital records that

there is no record on file, correct?

A. Yes.

Q. Is it fair to say you're referring to the MV 3002 form here?

A. Yes.

Q. And you also state that along with the MV 3002 a person

would have to present multiple secondary forms like hospital

certificates, baptismal certificates, SSA history printouts,

right?

A. Correct.

Q. SSA history printouts are not listed on Exhibit 47; is that

right?

A. Correct.

Q. But you would not have a problem with a supervisor accepting

an SSA history printout; is that right?

A. Based off what is described in our driver's license manual,

which we also reference, I would not have a problem with that,

yes.

Q. You also state that these documents are approved on a

case-by-case basis by the supervisor at the local DMV service

center; is that right?

A. Yes.


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Krueger/Cross


826

Q. So whether or not a person without a birth certificate can

get an ID to vote depends on the discretion of the supervisor at

a local DMV; is that right?

A. Could you please repeat that question?

(Record read.)

A. In part, yes.

MS. PRINC: Thank you. No further questions.

CROSS-EXAMINATION

BY MR. KAWSKI:

Q. Good evening, Mr. Krueger, thank you for your patience.

Just a few questions. You've been here all day and you heard

the plaintiffs expert in the Jones case Leland Beatty testify,

correct?

A. Yes.

Q. And you heard him testify about a belt and suspenders

approach to identification?

A. Yes.

Q. And --

MS. PRINC: Objection, Your Honor, this is beyond the

scope of my direct.

THE COURT: I'll allow it.

BY MR. KAWSKI:

Q. You heard him testify about a belt and suspenders approach

to getting ID and that he understood that to mean that someone

in Wisconsin could get both a driver's license and a state ID


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827

card. You heard him say that.

A. Yes.

Q. Is that correct?

A. You're not able to obtain an ID card with a valid driver's

license.

Q. Is there any circumstance in which someone who has a

driver's license might be able to get a state ID card?

A. If that driver's license is valid, no.

Q. What if it's suspended?

A. Yes. If the driver's license is suspended they would be

able to obtain an ID card because it's no longer considered

valid.

Q. You described how you were the head of the call center at

the DMV in Madison and how many years did you work there? Or if

it was years just describe how long you worked there.

A. It was five to six years I was there in that unit.

Q. Approximately how many calls would you handle per week?

A. When I was on the phones I could handle, depending how busy

the week was, anywhere from 250 to 400 calls.

Q. So somewhere between a thousand and sixteen hundred calls

per month.

A. Correct.

Q. In all of your experience in the number of years processing

thousands of calls trying to help people get ID, how many times

did you have a caller that actually needed to use the MV 3002


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828

form?

A. Only a handful.

Q. Can you put an estimate on it?

A. 10.

Q. 10? And why do you think that is?

A. Most individuals after we talked with them went through

different steps, found out that they were able to obtain a birth

certificate.

MR. KAWSKI: Thank you. I have no further questions.


MS. PRINC: Brief redirect, Your Honor. I'm sorry.


BY MS. PRINC:

Q. If someone had a driver's license and lost it and applied

for a state ID card could they get one?

A. Not unless they surrendered their driver's license, gave up

their privilege to drive, which would invalidate their driver's

license, and then they would be allowed to get an ID card.

MS. PRINC: No further questions. Thank you.

THE WITNESS: Yes.

MR. KAWSKI: No further questions.

MS. LAZAR: If, Your Honor, wanted to go off the

record we could give you sort of an outline of the next day's

trial. Or did you want that on the record?

THE COURT: No, it's fine off the record.


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829

MS. LAZAR: But the witnesses can go. Thank you so

much.



(Proceedings concluded for the day at 6:40 p.m.)

* * *


830

C E R T I F I C A T E

I, JOHN T. SCHINDHELM, RMR, CRR, Official Court

Reporter for the United States District Court for the Eastern

District of Wisconsin, do hereby certify that the foregoing

pages are a true and accurate transcription of my original

machine shorthand notes taken in the aforementioned matter to

the best of my skill and ability.

Signed and Certified November 6, 2013.

/s/John T. Schindhelm

John T. Schindhelm

John T. Schindhelm, RPR, RMR, CRRUnited States Official Reporter517 E Wisconsin Ave., Rm 236,

Milwaukee, WI 53202Website: WWW.JOHNSCHINDHELM.COM


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831

I N D E X

WITNESS EXAMINATION PAGE

CARL ELLIS, PLAINTIFF WITNESS

DIRECT EXAMINATION BY MR. YOUNG.................. 557

CROSS-EXAMINATION BY MS. LAZAR................... 568

WILLIE E. BRISCO,PLAINTIFF WITNESS

DIRECT EXAMINATION BY MS. CHAPMAN................ 569


JOHN MAS, PLAINTIFF WITNESS

DIRECT EXAMINATION BY MR. FOSTER................. 594

CROSS-EXAMINATION BY MR. LENNINGTON.............. 614

REDIRECT EXAMINATION BY MR. FOSTER............... 620

LELAND BEATTY, PLAINTIFF WITNESS

DIRECT EXAMINATION BY MR. ULIN................... 623

SAMANTHA MESZAROS, PLAINTIFF WITNESS

DIRECT EXAMINATION BY MS. LIU.................... 692

CROSS-EXAMINATION BY MR. KAWSKI.................. 697

ROSE THOMPSON, PLAINTIFF WITNESS

DIRECT EXAMINATION BY MR. OSTROW................. 699


LELAND BEATTY, PLAINTIFF WITNESS RESUMED

CROSS-EXAMINATION BY MR. LENNINGTON.............. 710

REDIRECT EXAMINATION BY MR. ULIN................. 741


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832

TAMARA GRIGSBY, PLAINTIFF WITNESS

DIRECT EXAMINATION BY MS. ROTKER................. 743


JOCASTA ZAMARRIPA, PLAINTIFF WITNESS

DIRECT EXAMINATION BY MR. CORSON................. 766


REDIRECT EXAMINATION BY MR. FOSTER............... 810

JEREMY KRUEGER, PLAINTIFF WITNESS

DIRECT EXAMINATION BY MS. PRINC.................. 813


REDIRECT EXAMINATION BY MS. PRINC................ 828

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