UNITED STATES DISTRICT COURTEASTERN DISTRICT OF WISCONSIN

RUTHELLE FRANK, et al., on behalf of themselves and all others similarly situated, Plaintiffs,v.Case No. 11-CV-01128SCOTT WALKER, in his official capacity asGovernor of the State of Wisconsin, et al.,Defendants.LEAGUE OF UNITED LATIN AMERICANCITIZENS (LULAC) OF WISCONSIN, et al., Plaintiffs,v.Case No. 12-CV-00185JUDGE DAVID G. DEININGER, et al.,Defendants.DECISION AND ORDER

In May 2011, the Wisconsin Legislature passed 2011 Wisconsin Act 23 (“Act 23”),which requires Wisconsin residents to present a document including photo identification(“photo ID”) in order to vote. 2011 Wis. Sess. Laws 104 (codified as amended in scatteredsections of Wis. Stat. Ch. 5 and 6). The plaintiffs in the two cases captioned above claim

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the law violates the Fourteenth Amendment and/or Section 2 of the Voting Rights Act, 42U.S.C. § 1973. Act 23's photo ID requirement was in effect only in the February 2012 election. In

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March 2012, two separate Wisconsin circuit courts enjoined the statute on stateconstitutional grounds. As of the date of this decision, one of the injunctions remains ineffect and both cases are pending in the Wisconsin Supreme Court.

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In the Frank case, individuals who are eligible to vote in Wisconsin contend that Act23 violates both the Fourteenth Amendment and Section 2 of the Voting Rights Act. In theLULAC case, four organizations argue that Act 23 violates Section 2 of the Voting Rights Act. With the agreement of the parties, I handled the cases together without formallyconsolidating them and, in November 2013, conducted a two week trial to the court. In thisdecision, which constitutes my findings and conclusions under Federal Rule of CivilProcedure 52, I address the major issues presented. In an effort to make the opinion asreadable as possible, I have placed several relatively technical discussions of experttestimony in appendices rather than in the text.Before proceeding, I note that I am only addressing two of the plaintiffs’ claims—theFrank plaintiffs’ claim that Act 23 places an unjustified burden on the right to vote and theclaim of both the Frank and LULAC plaintiffs that Act 23 violates Section 2 of the VotingRights Act. I do not address the Frank plaintiffs’ remaining claims, which are allconstitutional claims. My reason for not addressing the remaining claims is based on the“longstanding principle of judicial restraint” under which courts are to “avoid reachingconstitutional questions in advance of the necessity of deciding them.” Camreta v. Greene, __ U.S. __, 131 S.Ct. 2020, 2031 (2011) (internal quotation marks omitted). As explainedbelow, all of the plaintiffs are entitled to permanent injunctive relief against enforcement of the photo ID requirement on the ground that the requirement violates Section 2 of theVoting Rights Act. This makes consideration of any of the Frank plaintiffs’ constitutionalclaims unnecessary. Still, I believe it is wise to consider the constitutional claim of whether  Act 23 places an unjustified burden on the right to vote. As my analysis below willdemonstrate, the Section 2 statutory claim and the unjustified-burden constitutional claim2

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overlap substantially, in that many factual findings are relevant to both claims. Indeed, theSection 2 analysis is largely identical to the unjustified-burden analysis, except that theSection 2 analysis involves the additional question of whether Act 23 has a disproportionateimpact on Blacks and Latinos and produces a “discriminatory result.” Thus, it would likely

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not be a wise use of judicial resources to address the Section 2 claim but leave theunjustified-burden claim unresolved. Addressing only the former claim could result in anappeal and then a remand to this court for consideration of the constitutional claim, andthen a second appeal involving only the constitutional claim. Of course, by not addressingall constitutional claims, I am leaving the door open to successive appeals. But unlike theunjustified-burden constitutional claim, the remaining constitutional claims do not overlapsubstantially with the Section 2 claim and could more easily be addressed in separateproceedings.My analysis proceeds as follows. First, I give an overview of the relevant provisionsof Act 23. Second, I address the Frank plaintiffs’ claim that Act 23 violates the Fourteenth Amendment because it imposes substantial burdens on the many eligible voters who do notcurrently possess photo IDs, and because such burdens are not justified by the stateinterests that Act 23 purports to serve. Third, I address the plaintiffs’ claim that Act 23violates Section 2 of the Voting Rights Act because it has a disproportionate impact on thevoting rights of Blacks and Latinos. Finally, I briefly address some remaining procedural Because the Section 2 and unjustified-burden analyses are highly similar, with the

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Section 2 analysis presenting additional questions that the unjustified-burden analysis doesnot, I discuss the unjustified-burden claim first.3

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