Wisconsin's requirement for photo identification to vote is illegal because the state's voting criteria can be changed only by constitutional amendment, an attorney challenging the statute told the state Supreme Court.

“The Legislature can establish how, when and where voting occurs,” said Lester Pines, a lawyer for the League of Women Voters. “But it cannot legislate who can vote.” That must be done by a constitutional amendment passed in two successive sessions of the Legislature and then approved by voters, Pines said today in Madison, the state capital.

The league and the Milwaukee Branch of the NAACP sued separately to block the law, which they claim puts an unconstitutional burden on the right to vote. The seven-member court today heard oral arguments in both cases.

Fourteen states have laws requiring photo identification to vote, according to the National Conference of State Legislators. Wisconsin is one of five in which the statutes haven’t yet been implemented or are in various stages of litigation.

Gov. Scott Walker, a Republican, signed the measure into law three years ago, calling it “common-sense reform” that would help protect the integrity of the election process. Opponents claim the measures are intended to suppress the votes of lower-income people and the elderly, who may be more inclined to vote for Democrats.

State argument

Clayton Kawski, an assistant state attorney general, told the justices that demanding a photo ID is reasonable and doesn’t impede legitimate voters from exercising their rights.

“The law is not a voting qualification,” Kawksi said. “It is not forbidden by the constitution.”

The statute allows for provisional voting, Kawski said. A voter can cast a ballot without an ID but must produce it by 4 p.m. on the Friday after the election.

Justice Patrick Crooks asked if that was enough time. Kawski said it was adequate.

“Hundreds of thousands of Wisconsin voters took advantage of the opportunity to obtain free ID card through the Department of Motor Vehicles,” Kawski said. About 90 percent of the eligible voters already have a valid ID that can be used to vote, he said.

“You say that 90 percent of the voters have no problem getting a state ID,” Pines responded. “Well, that’s great. That probably means that 10 percent don’t.”

ID’s cost

Justice Patience Roggensack said she was troubled by the cost of getting birth certificates or other forms of ID needed to get a state card.

“I’m troubled by having to pay the state to vote,” she said.

When asked what sort of restriction the state would find an unconstitutional infringement on the right to vote, Kawski said, “If you said you have to be left-handed to vote.”

Provisional voting doesn’t remedy the law’s defect, Pines said.

“It requires proof of identification beyond what is required to register to vote,” he said. The test of the law’s validity is whether it “impairs or destroys” the ability of a voter to cast a ballot.

The National Association for the Advancement of Colored People in Wisconsin won a 2012 trial ruling that the photo-ID requirement was invalid. The league’s victory in a separate case was reversed by the mid-level state Court of Appeals. The league is asking the Supreme Court to restore the trial court’s ruling that the measure unconstitutionally interferes with voter rights.

Prior rulings

The high court decided in November that the NAACP case should skip the intermediate appellate court. Walker’s administration asked the court to undo the decision saying the law is invalid.

Richard Saks, a lawyer for the NAACP, called the law unconstitutional on its face.

“It could not be applied for any election without thousands of voters being excluded,” he argued. The question, he said, isn’t whether the state has an interest in preventing voter fraud but whether the law is necessary to accomplish that.

“We have never had any arrests of anyone who has voted impersonating another person,” he said.

Getting a birth certificate costs $20 and can require 12 hours to visit various government agencies, a significant burden for the poor, Saks said.

The cases are League of Women Voters of Wisconsin Education Network Inc. v. Walker, 2012AP584, and Milwaukee Branch of the NAACP v. Walker, 2012AP1652, Wisconsin Supreme Court (Madison).