A Federal Judge Searches for Voter Fraud in Wisconsin and Finds None

In an exhaustive and devastating opinion, Judge Lynn Adleman writes that the facts don't justify restrictions that unduly burden minorities.
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Governor Scott Walker made the voter-ID law a top priority. (Jonathan Ernst/Reuters)

A long and bitter Wisconsin trial ended Tuesday afternoon with a sweeping defeat for supporters of a voter-ID law designed to make it more difficult for citizens to cast ballots. U.S. District Judge Lynn Adelman declared in a 90-page order that the state's new voting restrictions violate both the equal-protection clause of the Constitution and Section 2 of the Voting Rights Act. The law unduly burdens minority voters, he ruled, without sufficient justification for doing so.

Adelman's ruling will be appealed by the Republican officials who enacted it in 2011. It is far from certain that the ruling will withstand review by the very conservative 7th U.S. Circuit Court of Appeals or the even more conservative Supreme Court, which in 2008's Crawford v. Marion County declared that state voter-ID laws could be constitutional. In the meantime, the law—which required all voters to present photo identification to vote—is enjoined from enforcement.

No matter how they rule, appellate judges can't erase Adelman's meticulous work. More than any other ruling yet issued on the current generation of voter-ID laws—more than the 2012 rulings in Texas or South Carolina or the ruling this year in Pennsylvania—Adelman directly confronts and demolishes the myth that these measures are necessary to ensure the integrity of elections by preventing "voter fraud."

Tuesday's ruling in Frank v. Walker does for the judicial canon what Jane Mayer's work on the myth of "voter fraud" did in the realm of journalism. For page after page, Adelman lays bare the shibboleth that these measures, which disproportionately burden the poor, elderly, and infirm, are necessary to preserve the integrity of our elections.

Here is Adelman on pages 11 to 12 of his ruling. Remember that the "defendants" in his ruling are state officials in Wisconsin who enacted and sought to defend this law (citations omitted throughout these excerpts):

The evidence at trial established that virtually no voter impersonation occurs in Wisconsin. The defendants could not point to a single instance of known voter impersonation occurring in Wisconsin at any time in the recent past.

The only evidence even relating to voter impersonation that the defendants introduced was the testimony of Bruce Landgraf, an Assistant District Attorney in Milwaukee County. Landgraf testified that in “major elections,” by which he means gubernatorial and presidential elections, his office is asked to investigate about 10 or 12 cases in which a voter arrives at the polls and is told by the poll worker that he or she has already cast a ballot.

However, his office determined that the vast majority of these cases—approximately 10 each election—have innocent explanations, such as a poll worker’s placing an indication that a person has voted next to the wrong name in the poll book.

On page 14:

Some have suggested that voter fraud might be more widespread than the low number of prosecutions indicates because the laws that prohibit voter fraud are under enforced. However, the defendants do not suggest that there is any underenforcement of such laws in Wisconsin. And the evidence at trial indicates that such laws are vigorously enforced (citations omitted by me).

And page 15:

The defendants contend that the absence of known instances of voter-impersonation fraud could be explained by the fact that such fraud is difficult to detect. However, the witnesses called by the defendants to testify about their efforts to investigate voter fraud did not indicate that voter-impersonation fraud is difficult to detect.

When Michael Sandvick, a former Milwaukee police officer, was asked at trial whether or not voter fraud was difficult to detect, he answered, “There are different types of voter fraud. Some of them are hard to detect and some of them are not.” When asked what types are hard to detect, he gave only one example: someone using a fake address to vote. He did not mention voter impersonation.

Here is the judge on page 16 of the ruling:

In the present case, no evidence suggests that voter-impersonation fraud will become a problem at any time in the foreseeable future. As the plaintiffs’ unrebutted evidence shows, a person would have to be insane to commit voter-impersonation fraud. The potential costs of perpetrating the fraud, which include a $10,000 fine and three years of imprisonment, are extremely high in comparison to the potential benefits, which would be nothing more than one additional vote for a preferred candidate (or one fewer vote for an opposing candidate), a vote which is unlikely to change the election’s outcome.

Adding to the cost is the fact that, contrary to the defendants’ rhetoric, voter-impersonation fraud is not “easy” to commit. To commit voter-impersonation fraud, a person would need to know the name of another person who is registered at a particular polling place, know the address of that person, know that the person has not yet voted, and also know that no one at the polls will realize that the impersonator is not the individual being impersonated.

And on page 18:

It is true that the state has an interest in protecting the public’s confidence in the integrity of elections so that citizens are encouraged to participate in the democratic process. However, the defendants produced no empirical support for the notion that Act 23's photo ID requirement actually furthers this interest.

In contrast, one of the plaintiffs’ expert witnesses, Barry Burden, a professor of political science at the University of Wisconsin–Madison, testified that the available empirical evidence indicates that photo ID requirements have no effect on confidence or trust in the electoral process.

On and on this goes, the relentless destruction of the factual underpinnings of an argument that one party has consistently used over the past few years to seek to disenfranchise the likely voters of the other party.

The 7th Circuit may overturn this ruling. And if not, John Roberts, the chief justice of the United States, may do so. These jurists are entitled to their own opinions, but not to their own facts. Adelman has compiled a record of trial evidence and testimony that shows that laws like Wisconsin's cannot be justified by the arguments their supporters have used to date—and that they impose terrible burdens upon citizens who, for one reason or another, cannot easily obtain photo identification. The debate will continue to rage in Wisconsin and beyond. But the proof now is out there for all to see.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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