                                                                 2014 WI 97

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2012AP584
COMPLETE TITLE:         League of Women Voters of Wisconsin Education
                        Network,
                        Inc. and Melanie G. Ramey,
                                  Plaintiffs-Respondents-Petitioners,
                             v.
                        Scott Walker, Thomas Barland, Gerald C. Nichol,
                        Michael
                        Brennan, Thomas Cane, David G. Deininger and
                        Timothy Vocke,
                                  Defendants-Appellants,
                        Dorothy Janis, James Janis, Matthew Augustine,
                                  Intervenors-Co-Appellants.



                          REVIEW OF A DECISION OF    THE COURT OF APPEALS
                                 348 Wis. 2d 714,    834 N.W.2d 393
                                   (Ct. App. 2013    – Published)
                                      PDC No: 2013   WI App 77

OPINION FILED:          July 31, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          February 24, 2014

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Dane
   JUDGE:               Richard G. Niess

JUSTICES:
   CONCURRED:           CROOKS, J., concurs (Opinion filed.)
   DISSENTED:           ABRAHAMSON, C.J., BRADLEY, J., dissents.
                        (Opinion filed.)
  NOT PARTICIPATING:


ATTORNEYS:
       For        the   plaintiffs-respondents-petitioners,     there   were
briefs by Lester A. Pines, Tamara B. Packard, Susan Crawford,
and Cullen Weston Pines & Bach LLP, Madison, and oral argument
by Lester A. Pines.
      For   the   defendants-appellants,   the    cause    was       argued   by
Clayton P. Kawski, assistant attorney general, with whom on the
brief was J.B. Van Hollen, attorney general, and Maria S. Lazar,
assistant attorney general.


      For   the   intervenors-co-appellants,     there    was    a    brief   by
James R. Troupis, Sarah E. Troupis, and Troupis Law Office LLC,
Cross Plains; Michael T. Morley, Cranford, N.J.; and Dan Backer
and   Coolidge-Reagan     Foundation,   Washington,       D.C,       and   oral
argument by Michael T. Morley.




                                   2
                                                                       2014 WI 97
                                                               NOTICE
                                                 This opinion is subject to further
                                                 editing and modification.   The final
                                                 version will appear in the bound
                                                 volume of the official reports.
No.        2012AP584
(L.C. No.     2011CV4669)

STATE OF WISCONSIN                           :            IN SUPREME COURT

League of Women Voters of Wisconsin Education
Network, Inc. and Melanie G. Ramey,

               Plaintiffs-Respondents-Petitioners,

       v.                                                           FILED
Scott Walker, Thomas Barland, Gerald C. Nichol,                JUL 31, 2014
Michael Brennan, Thomas Cane, David G.
Deininger and Timothy Vocke,                                      Diane M. Fremgen
                                                               Clerk of Supreme Court
               Defendants-Appellants,

Dorothy Janis, James Janis, Matthew Augustine,

               Intervenors-Co-Appellants.




       REVIEW of a decision of the Court of Appeals.                Modified and

as    modified,    affirmed;   injunction   vacated;      cause     remanded       to
circuit court to dismiss the complaint.



       ¶1      PATIENCE DRAKE ROGGENSACK, J.          We review a decision

of the court of appeals1 reversing an order of the circuit court2


       1
       League of Women Voters of Wis. Educ. Network, Inc. v.
Walker, 2013 WI App 77, 348 Wis. 2d 714, 834 N.W.2d 393.
       2
           The Honorable Richard G. Niess of Dane County presided.
                                                                           No.    2012AP584



that declared portions of Wisconsin's voter identification law,

2011 Wis. Act 23, unconstitutional and permanently enjoined its

enforcement.

      ¶2        Plaintiffs, the League of Women Voters of Wisconsin

Education Network, Inc., and its president, Melanie G. Ramey,3

bring      a    facial    challenge     to       the    law    under      the    Wisconsin

Constitution.4           The League asserts that the legislature lacked

authority to require an elector to present Act 23-acceptable

photo identification.              It makes the following three arguments:

(1) the requirement is an additional elector qualification not

listed in Article III, Section 1; (2) the requirement is not one

of   the       five   types   of   election-related           laws   in    Article    III,

Section 2; and (3) the requirement is not reasonable.

      ¶3        Defendants5 counter that               Act 23 does not create an

additional elector qualification, but rather, requiring voters

to present Act 23-acceptable photo identification is a means to

identify qualified voters.              They also say that Act 23 comes

within the parameters of Article III, Section 2 of the Wisconsin


      3
       We refer to plaintiffs collectively hereinafter as "the
League."
      4
       Plaintiffs' challenge is based entirely on the requirement
to present Act 23-acceptable photo identification to vote. It
does not include any allegation that obtaining such photo
identification places an unconstitutional burden on the right to
vote.
      5
       The defendants are Governor Walker and six members of the
Government Accountability Board, all of whom are sued in their
official capacities, and three individual voters who joined the
suit at the court of appeals.

                                             2
                                                                                No.      2012AP584



Constitution       as   a   law     providing     for    registration              of    voters.

Defendants        further      contend     that     Act        23        is    a     reasonable

regulation    that      serves      the   State's       significant             interests       in

promoting voter confidence in the integrity of elections, in

deterring voter fraud and in orderly election administration.

      ¶4     We conclude that the legislature did not exceed its

authority under Article III of the Wisconsin Constitution when

it    required      electors        to    present       Act     23-acceptable                 photo

identification.         Since 1859, we have held that "it is clearly

within     [the    legislature's]         province        to    require            any     person

offering to vote[] to furnish such proof as it deems requisite[]

that he is a qualif[i]ed elector."                  Cothren v. Lean, 9 Wis. 254

(*279), 258 (*283-84) (1859).                   Requiring a potential voter to

identify himself or herself as a qualified elector through the

use of Act 23-acceptable photo identification does not impose an

elector qualification in addition to those set out in Article

III, Section 1 of the Wisconsin Constitution.

      ¶5     We also conclude that the requirement to present Act
23-acceptable           photo       identification             comes            within          the

legislature's        authority       to    enact     laws           providing           for     the

registration of electors under Article III, Section 2 because

Act   23-acceptable         photo    identification        is       the       mode    by      which

election officials verify that a potential voter is the elector

listed on the registration list.

      ¶6     Finally, we conclude that plaintiff's facial challenge

fails      because       Act      23's     requirement              to        present         photo
identification is a reasonable regulation that could improve and
                                            3
                                                                                 No.    2012AP584



modernize election procedures, safeguard voter confidence in the

outcome of elections and deter voter fraud.                                  See Crawford v.

Marion       Cnty.       Election        Bd.,         553        U.S.    181,    191     (2008).

Accordingly, we affirm the decision of the court of appeals.6

                                      I.     BACKGROUND

       ¶7         We begin with a description of the portions of Act 23

that       bear    on   our    analysis.          Act       23    requires      an   elector   to

present one of nine acceptable forms of photo identification in

order to vote.                Wis. Stat. § 5.02(6m) (2011-12).7                        Generally

stated, these include:                Wisconsin Department of Transportation

(DOT) issued driver's license; DOT issued photo identification

card;       United      States      uniformed          service          identification    card;

United States passport; United States naturalization certificate

issued       within      two     years     preceding             the     election;     federally

recognized          Wisconsin       Native        American         tribe's      identification

card;       Wisconsin     university         or       college       student     identification

card; and a citation or notice of driver's license suspension.

       ¶8         Act 23's presentation requirement applies to in-person
as well as absentee voting, with some exceptions for, among

others,       electors        who   automatically            receive        absentee     ballots

       6
       The court of appeals remanded the case to the circuit
court "for further proceedings consistent with this opinion as
may be necessary." Because we conclude that plaintiffs' facial
challenge to Act 23 fails as a matter of law, we modify the
remand of the court of appeals, vacate the circuit court
injunction and remand the matter to the circuit court to dismiss
the lawsuit.
       7
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.

                                                  4
                                                                                   No.   2012AP584



under Wis. Stat. § 6.86(2)(a), residents of qualified facilities

described in Wis. Stat. § 6.875(1) and military and overseas

electors under Wis. Stat. § 6.865(1).                             § 6.87(4)(b)2., 3., and

5.

      ¶9        If    an    elector       does    not       present      Act       23-acceptable

identification on the day of the election in which he or she

offers     to    vote,       the    elector      may       cast    a   provisional        ballot.

However, the provisional ballot will be counted only if the

elector presents Act 23-acceptable identification at the polling

location before 4:00 p.m. on the day of the election or at the

office of the municipal clerk or board of election commissioners

by the following Friday.                 Wis. Stat. § 6.97(3).

      ¶10       Four months after Governor Walker signed Act 23 into

law, the League filed this lawsuit seeking a declaration that

the photo identification requirement violated Article III of the

Wisconsin Constitution and asking for injunctive relief.                                    After

denying defendants' motion to dismiss for lack of standing, the

circuit court granted the League's motion for summary judgment.
The circuit court concluded that the challenged portions of Act

23   were   "unconstitutional              to    the       extent      they    serve[d]     as   a

condition       for    voting       at   the     polls"      and       permanently       enjoined

defendants "from any further implementation or enforcement of

those provisions."

      ¶11       The    court       of    appeals       reversed        the    circuit      court,

concluding that:             (1) the League had "not shown that the photo

identification             requirement      is        on    its     face      an    'additional
qualification'         for     voting";         (2)    Act    23       was    validly     enacted
                                                 5
                                                                            No.   2012AP584



pursuant to the legislature's "implicit but broad constitutional

authority to establish a voting registration system under which

election   officials         may   require        potential     voters       to   identify

themselves as registered voters"; and (3) that there were no

factual findings in the record to support the League's implied

argument   that    the       photo       identification         requirement       was     so

burdensome that it effectively denied people the right to vote.8

The League petitioned for review, which we granted.

                                   II.    DISCUSSION

    ¶12    The League brings a facial constitutional challenge

against Act 23, asserting that the requirement to present an Act

23-acceptable      photo           identification            creates        an     elector

qualification     in   addition          to   those    set     out    in    Article     III,

Section 1 of the Wisconsin Constitution, which the legislature

has no power to do; that Act 23 exceeds the scope of legislative

authority authorized by Article III, Section 2 of the Wisconsin

Constitution; and Act 23 is not a reasonable regulation of the

elective franchise.
                             A.    Standard of Review

    ¶13    There       are     two       general       types     of        constitutional

challenges:     facial and as-applied.                As we explained in State v.

Wood, 2010 WI 17, 323 Wis. 2d 321, 780 N.W.2d 63:

         A party may challenge a law . . . as being
    unconstitutional on its face. Under such a challenge,
    8
       The League no longer asserts that Act 23 is so burdensome
that it effectively denies the right to vote, noting that this
issue is now before us in Milwaukee Branch of NAACP v. Walker,
2014 WI 98, __ Wis. 2d __, __ N.W.2d __.

                                              6
                                                              No.   2012AP584


    the challenger must show that the law cannot be
    enforced "under any circumstances." . . . In contrast,
    in an as-applied challenge, we assess the merits of
    the challenge by considering the facts of the
    particular case in front of us, "not hypothetical
    facts in other situations."    Under such a challenge,
    the   challenger   must   show    that   his  or   her
    constitutional rights were actually violated.
Id., ¶13 (internal citations omitted).

    ¶14    The League presents only a facial challenge to Act 23,

asserting that the photo identification requirement is void from

its inception.     The constitutionality of a statute is a question

of law that we independently review, while benefitting from the

analyses of the circuit court and court of appeals.                 State v.

Smith, 2010 WI 16, ¶8, 323 Wis. 2d 377, 780 N.W.2d 90.

                       B.   Constitutional Challenge

                       1.   Foundational principles

    ¶15    Because the League brings a facial challenge to Act

23, it "must show that the law cannot be enforced 'under any

circumstances.'"       Wood, 323 Wis. 2d 321, ¶13 (citing Olson v.

Town of Cottage Grove, 2008 WI 51, ¶44 n.9, 309 Wis. 2d 365, 749

N.W.2d 211); see also United States v. Salerno, 481 U.S. 739,

745 (1987) (explaining that a facial challenge to a legislative

act is the most difficult of constitutional challenges because

the challenger must prove that "no set of circumstances exists

under which the Act would be valid").

    ¶16    We generally presume that statutes are constitutional.

Tammy W-G. v. Jacob T., 2011 WI 30, ¶46, 333 Wis. 2d 273, 797

N.W.2d    854.     However,    the   way   in    which   we   address    this
presumption      may   vary    depending    on     the   nature     of   the

                                     7
                                                                         No.       2012AP584



constitutional claim at issue.                  See e.g., Milwaukee Branch of

NAACP v. Walker, 2014 WI 98, ¶¶27-41, __ Wis.2d __, __ N.W.2d

__, also released today.            The presumption of constitutionality

is based on respect for a co-equal branch of government, and it

promotes due deference to legislative acts.                     Dane Cnty. Dep't of

Human Servs. v. Ponn P., 2005 WI 32, ¶16, 279 Wis. 2d 169, 694

N.W.2d    344.      This    presumption         applies    even     when       a   statute

implicates a fundamental right, subject to limited exceptions

that do not apply here.            State v. Cole, 2003 WI 112, ¶¶14, 20,

264 Wis. 2d       520, 665 N.W.2d         328 (presuming that a concealed

weapons law implicating the fundamental right to bear arms was

constitutional).           "[I]f   any    doubt     exists       about    a    statute's

constitutionality,         we   must     resolve    that        doubt    in    favor     of

constitutionality."         Aicher v. Wis. Patients Comp. Fund, 2000 WI

98, ¶18, 237 Wis. 2d 99, 613 N.W.2d 849.

    ¶17     The challenger has a very heavy burden in overcoming

the presumption of constitutionality.                   Dowhower v. W. Bend Mut.

Ins. Co., 2000 WI 73, ¶10, 236 Wis. 2d 113, 613 N.W.2d 557.                              To
succeed,     plaintiffs         must      prove         that     the     statute         is

unconstitutional beyond a reasonable doubt.                       Cole, 264 Wis. 2d

520, ¶11.        While this burden of proof is often associated with

the requisite proof of guilt in a criminal case, in the context

of a challenge to the constitutionality of a statute, the phrase

"beyond a reasonable doubt" expresses the "force or conviction

with which a court must conclude, as a matter of law, that a

statute     is     unconstitutional            before     the     statute          or   its
application can be set aside."             Ponn P., 279 Wis. 2d 169, ¶18.
                                           8
                                                                 No.    2012AP584



                               2.       Suffrage

    ¶18     The qualifications of an elector entitled to vote are

set out in Article III, Section 1 of the Wisconsin Constitution.

Article III, Section 2 of the Wisconsin Constitution addresses

implementation of voting rights through legislation.                   Those two

sections are the focus of our review and they provide in their

entirety:

         Electors.    Section 1.     Every United States
    citizen age 18 or older who is a resident of an
    election district in this state is a qualified elector
    of that district.

            Implementation.    Section 2.          Laws may be enacted:

            (1) Defining residency.

            (2) Providing for registration of electors.

            (3) Providing for absentee voting.

            (4) Excluding from the right of suffrage persons:

         (a) Convicted        of    a    felony,    unless   restored    to
    civil rights.

         (b) Adjudged by a court to be incompetent or
    partially incompetent, unless the judgment specifies
    that the person is capable of understanding the
    objective of the elective process or the judgment is
    set aside.

         (5) Subject to ratification by the people at a
    general election, extending the right of suffrage to
    additional classes.
                  3.   Prior Article III challenges

    ¶19     The League's Article III challenge stands with many

significant cases that have brought constitutional challenges to
legislation that bears on voting.              Accordingly, we now review


                                         9
                                                             No.     2012AP584



some of those challenges.          For example, in McGrael v. Phelps,

144 Wis. 1, 128 N.W. 1041 (1910), we concluded that voting was a

right, not a privilege, which was guaranteed by Article III,

Section     1   of   the   Wisconsin     Constitution.    Id.   at     14-15.

However, we also concluded that "there is a legitimate field of

legislative activity in the nature of regulation."                 Id. at 2.

In that regard, we explained:

           It has become elementary that constitutional
      inhibitions of legislative interference with a right,
      including the right to vote and rights incidental
      thereto, leaves, yet, a field of legislative activity
      in respect thereto circumscribed by the police power.
      That activity appertains to conservation, prevention
      of abuse, and promotion of efficiency. Therefore, as
      in all other fields of police [power] regulation, it
      does not extend beyond what is reasonable. . . .
      However, what is and what is not reasonable, is
      primarily   for  legislative   judgment,  subject  to
      judicial review.
Id.   at    17-18.         We   noted   that   judicial   review     of    the

legislature's exercise of its police power addresses "whether

the interference, from the standpoint of a legitimate purpose,

can stand the test of reasonableness."          Id. at 18.
      ¶20   In State ex rel. Small v. Bosacki, 154 Wis. 475, 143

N.W. 175 (1913), we examined a statute that established voter

residency requirements upon a claim that they limited the right

to vote of those who worked in a district different from that in

which they lived.      Id. at 476.      In upholding the law we said:

      [T]he right as well as the duty is vested in                   the
      legislature  to   prescribe  reasonable  rules                 and
      regulations under which [the franchise] may                     be
      exercised.    Such rules and regulations tend                   to
      certainty and stability in government and render                it

                                        10
                                                                                 No.    2012AP584


      possible to guard against corrupt and unlawful means
      being employed to thwart the will of those lawfully
      entitled to determine governmental policies.     Their
      aim is to protect lawful government, not to needlessly
      harass or disfranchise any one.
Id. at 478-79.

      ¶21   More recently in Gradinjan v. Boho, 29 Wis. 2d 674,

139 N.W.2d 557 (1966), we examined a statute that prohibited

counting     absentee             ballots     if        they        were        not     properly

authenticated          by     a     municipal           clerk.             We     upheld      the

constitutionality of the statute, while explaining that, "the
right of a qualified elector to cast his ballot for the person

of his choice cannot be destroyed or substantially impaired.

However, the legislature has the constitutional power to say

how, when, and where his ballot shall be cast."                                 Id. at 684-85

(quoting State ex rel. Frederick v. Zimmerman, 254 Wis. 600,

613, 37 N.W.2d 473 (1949)).

                  4.    The League's Article III challenges

                   i.       additional elector qualification

      ¶22   The        League's       major    argument          is      that     Act    23    is

unconstitutional            because    being       required         to     present      Act   23-

acceptable    photo          identification             is     an     additional         elector

qualification beyond what is listed in Article III, Section 1 of

the   Wisconsin         Constitution.              As    provided          in    full    above,

Section 1 requires that an elector be a United States citizen,

at least 18 years of age, a resident of Wisconsin and a resident

of the district in which the elector offers to vote.

      ¶23   We agree with the League that the legislature cannot
add to these qualifications for electors.                             As we explained in

                                              11
                                                                                  No.      2012AP584



State ex rel. La Follette v. Kohler, 200 Wis. 518, 228 N.W. 895

(1930), "[t]he persons who may exercise the right of suffrage

and the day of election are fixed by the constitution."                                     Id. at

548.     However, we also noted that "[t]hese provisions are not

and were never intended to be self-executing or exclusive of

regulation in other respects. . . . [T]he power to prescribe the

manner of conducting elections is clearly within the province of

the legislature."             Id.

       ¶24     As   we    have           explained,         "the    legislature           has      the

constitutional        power         to     say   how,       when,   and    where"         elections

shall be conducted.                 Frederick, 254 Wis. at 613.                   The mode and

manner    of    conducting           an     election        includes      the    legislature's

ability "to require any person offering to vote, to furnish such

proof as it deems requisite, that he is a qualified elector."

Cothren, 9 Wis. at 258 (*283-84).

       ¶25     Although       requiring          any    person      offering         to    vote     to

identify       that      he     or        she    is     a     qualified         elector       is     a

straightforward and longstanding proposition to which we have
uniformly adhered, we briefly discuss two cases decided shortly

after the ratification of the state constitution to illustrate

the principle.        The first is State ex rel. Knowlton v. Williams,

5 Wis. 308 (1856).             The plaintiff in Knowlton challenged a vote

to move the La Fayette County seat from Shullsburg to Avon.                                        Id.

at 309.        Part of that act provided that "no person shall be

deemed qualified to vote upon the question of the removal of the

county    seat      provided         for    in   this       act,    unless      he    shall     have


                                                 12
                                                                       No.    2012AP584



resided in the town where he offers to vote at least thirty

days."    Id. at 309-10.

    ¶26        At that time, Article III provided that "[e]very male

person    of    the     age   of    twenty-one       years   or   upwards,     of   the

following classes, who shall have resided in this State for one

year next preceding any election, shall be deemed a qualified

elector."        Wis.    Const.     Art.    III,   § 1     (1848).     None    of   the

subsequent       classes       added       further     residency      requirements.

Futhermore,       unlike      the   present      version     of   Article    III,   the

original state constitution did not grant the legislature the

authority to define residency.                As such, we concluded that the

law's    30-day    residency        requirement      constituted     an     additional

elector qualification that the legislature was not empowered to

impose.    Knowlton, 5 Wis. at 311.9

    ¶27        The second case, Cothren, involved another challenge

to a vote to move a county seat.                   Cothren, 9 Wis. 254 (*279).

Plaintiffs disputed the results of the vote based on a challenge

to a law that permitted election officials to question a voter
whose qualifications to vote were challenged.                        Id. at 257-58

(*283).     Specifically, the law allowed election officials to ask

an elector "a series of questions . . . calculated to draw out

from such person the truth as to whether such cause of challenge

existed against him or not."               Id. at 258 (*283).


    9
       See also State ex rel. Cornish v. Tuttle, 53 Wis. 45, 50,
9 N.W. 791 (1881) (invalidating a village charter provision
establishing a 20-day residency requirement in order to vote for
municipal officers).

                                            13
                                                                               No.     2012AP584



      ¶28   Article III made (and still makes) no mention of the

requirement that an elector answer questions or identify himself

or   herself.      Nonetheless,           we    upheld       the    law     with     reasoning

similar to Knowlton, concluding that "instead of prescribing any

qualifications for electors different from those provided for in

the constitution, [the law] contain[ed] only new provisions to

enable the inspectors to ascertain whether the person offering

to   vote     possessed        the     qualifications                required         by     [the

constitution]."        Id.    Stated otherwise, requiring an elector to

demonstrate     his    or    her    constitutional               qualifications        to    vote

does not constitute an additional elector qualification.

      ¶29   The    League      agrees          that        the    legislature          has     the

authority     to   pass      laws     that          allow        election      officials        to

ascertain whether a potential voter possesses the constitutional

qualifications        required       of        an        elector.         As     the       League

acknowledges, this includes the ability to require a potential

voter to identify himself or herself in some fashion, thereby

answering   the       question,      "Are       you       who     you    say    you     are,    a
constitutionally qualified elector?"

      ¶30   The focus of the League's argument is that Act 23's

presentation requirement goes beyond such authority because it

"bars   constitutionally           qualified         voters       from    voting."           This

argument fails for several reasons.

      ¶31   First,      as   the     court          of    appeals       noted,     under       the

League's proposed logic, "virtually any requirement placed on

voters would be an unconstitutional and impermissible additional
'qualification.'"        League of Women Voters of Wis. Educ. Network,
                                               14
                                                                   No.   2012AP584



Inc. v. Walker, 2013 WI App 77, ¶66, 348 Wis. 2d 714, 834 N.W.2d

393.        Stated otherwise, if the League were correct, mode and

manner requirements for voting would not be permissible because

the State could not enforce them.

       ¶32    Second,    and   more   important,    the     League's     argument

fails        under      Cothren,      which     similarly      prohibited       a

constitutionally        qualified     elector    from     voting    because    he

refused to identify himself by answering a series of questions.

Notwithstanding Cothren, the League now makes the same argument

we flatly rejected in that case:

       It is true that § 14 provides that if any person
       challenged refused to answer, his vote should be
       rejected.   But does that make the answering of the
       questions a new qualification for a voter?   Certainly
       not.   Under the law, as it before existed, any one
       whose vote was challenged had to take an oath that he
       possessed   the   qualifications    required  by   the
       constitution.   If he refused, his vote was rejected.
       But this did not make the taking of the oath a new
       qualification, so as to invalidate the law.     It was
       rejected only because he failed to furnish the proof
       required by law, showing his right to vote.
Cothren, 9 Wis. at 258-59 (*284).10              As such, that an elector
must comply with Act 23 in order to vote cannot reasonably be

said to impose an additional elector qualification.




       10
       See also Gradinjan v. Boho, 29 Wis. 2d 674, 682-83, 139
N.W.2d 557 (1966) (quoting Anderson v. Budzien, 12 Wis. 2d 530,
533-34, 107 N.W.2d 496 (1961)) ("To prevent fraud, the
legislature in some instances has specifically stated that there
must be strict compliance with a statute or a ballot cannot be
counted. . . .   [C]ompliance    with   those    provisions   is
mandatory.").

                                        15
                                                                                 No.   2012AP584



      ¶33     This conclusion is bolstered by other ways in which an

elector who fails to comply with indisputably valid election

laws can lose the opportunity to vote.                             For example, an elector

who fails to arrive at a polling location on time can lose his

right to vote in that election.                        Therefore, although the elector

is a United States citizen, over the age of 18, and a resident

of the election district in which he or she offers to vote, if

the elector does not arrive at a polling place between the hours

of 7 a.m. and 8 p.m., and is not voting absentee, the elector

may   lose      his    right     to    vote           in    that   election.      Wis.   Stat.

§ 6.78(4).          The same holds true for an elector who fails to

arrive at the correct polling place.                             Wis. Stat. § 6.77(1).      Yet

none of these laws that affect the manner of voting can be

seriously characterized as additional elector qualifications.

      ¶34     Moreover, we note that Act 23 has a safeguard for

electors who do not present an acceptable form of identification

when offering to vote.                In that instance, an elector may cast a

provisional ballot.            Wis. Stat. § 6.97.                   If the elector presents
an acceptable form of identification by 4 p.m. on the Friday

after     the     election,           his        or        her    vote   will    be    counted.

§ 6.97(3)(b).

      ¶35     For these reasons, we conclude that being required to

present Act 23-acceptable photo identification prior to voting

is not an elector qualification in addition to those set out in

Article      III,      Section    1     of        the       Wisconsin     Constitution;     but

rather,      it       is   a   mode         of        identifying        those   who    possess
constitutionally required qualifications.
                                                  16
                                                                          No.    2012AP584



      ¶36     Our    decision     is    this      regard     is   supported       by    the

decisions of courts in other jurisdictions that have considered

whether the requirement of presenting photo identification prior

to voting is an additional elector qualification.                         For example,

in City of Memphis v. Hargett, 414 S.W.3d 88 (Tenn. 2013), the

Tennessee         Supreme    Court     considered      the    same       constitutional

challenge the League presents to us.                    Id. at 108.             The court

began by reviewing the Tennessee Constitution, which required

that "one must be at least eighteen years of age, a United

States citizen, a Tennessee resident . . . and registered to

vote."      Id.

      ¶37     In     rejecting         the     contention         that     the         photo

identification requirement imposed by the Tennessee law was an

additional voter qualification, the court concluded that "the

photo ID requirement is more properly classified as a regulation

pertaining to an existing voting qualification."                           Id. at 109.

The court explained that photo identification was merely a "mode

of   ascertaining"          whether    the     potential      voter      possessed      the
necessary constitutional qualifications to vote.                          Id. (quoting

Trotter v. City of Maryville, 235 S.W.2d 13, 19 (Tenn. 1950))

(further citation omitted).

      ¶38     In Democratic Party of Ga., Inc. v. Perdue, 707 S.E.2d

67   (Ga.    2011),      the   Georgia       Supreme   Court      addressed       whether

requiring          the      presentation          of   government-issued               photo

identification to identify qualified voters was an additional

voter qualification.           The court explained that the right to vote
is   guaranteed by the Georgia Constitution, and it cannot be
                                             17
                                                                        No.      2012AP584



denied    or    taken    away   by     legislative      enactment.         Id.   at    72.

However, the legislature may prescribe "reasonable regulations

as   to   how    these    qualifications         shall      be   determined."          Id.

Thereafter, the court concluded that photo identification was "a

reasonable procedure for verifying that the individual appearing

to vote in person is actually the same person who registered to

vote."    Id.

      ¶39      In League of Women Voters of Ind., Inc. v. Rokita, 929

N.E.2d 758 (Ind. 2010), the Indiana Supreme Court rejected the

additional qualification contention that is made by the League

before us.       The court first explained that the legislature could

"not by statutory enactment add a substantive qualification to

the right to vote."             Id. at 767.           However, the court further

explained       that    "[r]equiring      qualified         voters   to     present      a

specified form of identification is not in the nature of such a

personal,       individual      characteristic         or   attribute      but    rather

functions merely as an election regulation to verify the voter's

identity."       Id.
      ¶40      Although none of the state constitutions is word for

word identical with Article III, Section 1 of the Wisconsin

Constitution,      the    reasoning       of    all    three     supreme      courts   is

consistent with our own set out above.                   Accordingly, we now turn

to   Article       III,    Section 2,          which     expressly      permits        the

legislature to provide for registration of voters.

                                 ii.    registration

      ¶41      In addition to the authority to "require any person
offering to vote[] to furnish such proof as it deems requisite[]
                                           18
                                                                  No.     2012AP584



that he is a qualif[i]ed elector," Cothren, 9 Wis. at 258 (*283-

84), the legislature may pass five types of election-related

laws    pursuant    Article     III,        Section 2    of     the     Wisconsin

Constitution.      One   of   those    enumerated       types   are     laws   that

"[p]rovid[e] for registration of electors."                   Wis. Const. Art.

III, § 2(2).

       ¶42   The court of appeals succinctly summarized the current

registration system as follows:

            Election     officials     compile   registration
       information into "poll lists" for use at polling
       places, containing "the full name and address of each
       registered elector."   Wis. Stat. § 6.36(2) (2009-10);
       Wis. Stat. § 6.36(2).     Thus, poll lists memorialize
       who is registered to vote in a given election in a
       given voting district and they play a critical role in
       the voting process both pre- and post-Act 23. When a
       potential voter arrives at the polling place for his
       or her residence in a given election, he or she "shall
       state his or her full name and address" to election
       officials, who "shall verify that the name and
       address" provided match the name and address on the
       poll list.    Wis. Stat. § 6.79(2)(a) (2009-10); Wis.
       Stat. § 6.79(2)(a).
League of Women Voters, 348 Wis. 2d 714, ¶15 (footnote omitted).

       ¶43   Requiring an elector to identify himself or herself by

stating his or her full name and address is unquestionably part

of the registration process.          After all, there would be no point

to compiling a list of registered electors if there were no

means by which to ascertain if the person offering to vote was

an elector appearing on the list.             Identification of registered

voters by a government-issued photo identification is the mode

of identification that the legislature has chosen.


                                       19
                                                                        No.     2012AP584



     ¶44     Based on the League's arguments before us, we can see

no   meaningful       grounds    on     which       to    distinguish       the        photo

identification requirement from the requirement that an elector

state his or her full name and address in order to verify that

it matches the registration list.                  Both requirements permit use

of registration lists to verify at the polling place that the

potential voter is registered.                An elector who fails to comply

with either procedure cannot vote.                 Furthermore, the League does

not rely on the difficulty and inconvenience of procuring an Act

23-acceptable form of identification.11                   Therefore, the ease with

which     most   electors    will     be    able     to    state    their     names     and

addresses is not relevant to our decision in this case.

     ¶45     We now address the League's remaining argument, that

Act 23 fails an independent reasonableness requirement.

                             iii.      reasonableness

     ¶46     According      to   the       League,       even    laws   that      do     not

constitute       an   additional       qualification            under   Article         III,

Section 1 or that come within one of the five types of election-
related laws under Article III, Section 2 must be "reasonable"

to pass constitutional muster.                   Act 23 fails this requirement,

     11
       In NAACP, Act 23 was subjected to a very different
challenge than that brought by the League.     There, plaintiffs
submitted evidence to develop their allegation that obtaining
Act 23-acceptable photo identification imposed unconstitutional
burdens of time, inconvenience and cost on the right to vote and
that Act 23 was not reasonably necessary to effect a significant
government interest.    NAACP, 2014 WI 98, ¶2, __ Wis.2d __.
Accordingly, we employed a more nuanced test, under which the
severity of the burden on the right to vote dictates the level
of scrutiny that is applied.

                                            20
                                                                             No.    2012AP584



according to the League, because "it destroys the right of a

qualified elector to cast a ballot" and "it does nothing to

preserve and promote the constitutional right to vote."

       ¶47    We     acknowledge      that       in   upholding     various         election

regulations we have couched some of our decisions in terms of

"reasonableness."            E.g., McGrael, 144 Wis. at 17-18 (explaining

that   laws     regulating         voting   methods        are   enacted      through     the

legislature's use of police power, and accordingly, they must be

reasonable exercises of that power).                        Therefore, in order to

meet the League's argument, we assume without deciding, that

reasonableness        functions       as    an     independent     limit      on    election

regulation.

       ¶48    In State ex rel. Van Alstine v. Frear, 142 Wis. 320,

125 N.W. 961 (1910), we considered a challenge to statutorily

established primary elections.                     Id. at 322-23.            In addressing

the claim that the election regulation bore unconstitutionally

on the right to assemble, we explained that "[s]uch rights have

always been held to be subject to reasonable regulation."                                 Id.
at 337 (citing Freund, Police Power, § 480; further citations

omitted).       We noted that "[s]uch regulations, within reasonable

limits,       strengthen       and     make        effective      the    constitutional

guaranties      instead       of    impairing         or   destroying        them."       Id.

(quoting State ex rel. Runge v. Anderson, 100 Wis. 523, 533-34,

76 N.W. 482 (1898)).

       ¶49    Accordingly,         given    our       discussions       of    the   use    of

police       power    when    enacting       laws      bearing     on    elections,       we
understand the League's argument to be that when the legislature
                                              21
                                                                              No.     2012AP584



regulates     elections,     its       use    of   police      power     is     limited     to

legislation      that    does    not         destroy    or     impair,        but     rather,

preserves and promotes the right to vote.                      Stated otherwise, if

the legislation does not do so, it is "unreasonable."

       ¶50    While we agree with the League that election laws must

not destroy or impair the right to vote, Act 23's presentation

requirement does not do so.                   As we explained in part above,

requiring a potential voter to identify himself or herself with

government-issued        photo     identification            does    not       destroy      or

impair the right to vote.              Identification by the use of Act 23-

acceptable photo identification is the mode of ascertaining that

the    potential   voter    is     a    constitutionally           qualified        elector.

Because the legislature has the power to regulate in ways that

affect the mode and manner of conducting elections and Act 23-

acceptable photo identification is a mode of ascertaining the

identity of electors, it is reasonable.                      See Kohler, 200 Wis. at

548; Frederick, 254 Wis. at 613; Cothren, 9 Wis. at 258 (*283-

84).
       ¶51    Furthermore, we have little trouble concluding that

Act    23's    presentation        requirement          is     a     law       that     could

"strengthen and make effective the constitutional guarant[y]" of

suffrage.       See     Runge,   100     Wis.      at   534.        In   a    more     recent

context, in Crawford, the United States Supreme Court concluded

that voter identification laws serve unquestionably legitimate

purposes:      (1) "safeguarding voter confidence"; (2) "improv[ing]

and moderniz[ing] election procedures"; and (3) "deterring and
detecting voter fraud."            Crawford, 553 U.S. at 191.                         Each of
                                              22
                                                                  No.    2012AP584



these purposes is reasonable precisely because it could preserve

and promote the right to vote.

      ¶52    For instance, photo identification could enhance the

integrity of elections because "[t]he electoral system cannot

inspire     public    confidence   if    no    safeguards     exist     . . .   to

confirm the identity of voters."              Id. at 194 (quoting Report of

the Commission on Federal Election Reform, Building Confidence

in U. S. Elections § 2.5 (Sept. 2005)).                Increased confidence in

the elector system, in turn, "encourages citizen participation

in the democratic process."        Id. at 197.

      ¶53    Also, the presentation of photo identification "is to

some extent, a condition of our times.              Many important personal

interactions are being modernized to require proof of identity

with photo identification."           NAACP, 2014 WI 98, ¶44, __ Wis. 2d

__.        Crawford    also   noted     that     the     modern   approach      to

identification is moving toward photo identification.                   Crawford,

553 U.S. at 192.

      ¶54    Additionally, voter identification laws could detect
and   deter    fraud    thereby    ensuring       that    a   constitutionally

qualified elector's vote is not diluted by fraudulent votes.12

This could preserve and promote the right to vote by assuring


      12
       A recent filing in Milwaukee County demonstrates that
voter fraud is a concern.      See State v. Monroe, 2014CF2625
(June 20,   2014),   wherein  the   Milwaukee  County   District
Attorney's office filed a criminal complaint against Robert
Monroe that alleged 13 counts of voter fraud, including multiple
voting in elections and providing false information to election
officials in order to vote.

                                        23
                                                                             No.     2012AP584



that    a    constitutionally         qualified       elector's       vote       counts   with

full force and is not offset by illegal ballots.                             See Reynolds

v. Sims, 377 U.S. 533, 555 (1964).

       ¶55     In    areas    such     as    election       regulation,          "[w]here       a

legislature has significantly greater institutional expertise,"

courts       generally   defer        to    legislative       judgments.           Nixon       v.

Shrink Mo. Gov't PAC, 528 U.S. 377, 402 (2000) (Breyer, J.,

concurring).         Therefore, rather than "asking whether the statute

burdens any one such interest in a manner out of proportion to

the statute's salutary effects upon the others," courts employ a

presumption of constitutionality.                    Id.     In so doing, we decline

to evaluate whether Act 23 is the best way to preserve and

promote the right to vote, such "policy determinations . . . are

not properly addressed to the members of the Supreme Court of

Wisconsin."          MTI v. Walker, 2014 WI 99, ¶181, __ Wis.2d __, __

N.W.2d __ (Crooks, J., concurring).                        Instead, we conclude that

Act 23 is a reasonable way to do so.

       ¶56     And      finally,           employing         the      presumption              of
constitutionality        in     the    present       case,    we     conclude      that    the

League has failed to prove that presenting an Act 23-acceptable

photo       identification      is    unconstitutional             beyond    a    reasonable

doubt.        Furthermore,      Act        23's    presentation       requirement         is    a

reasonable voter regulation that is supportive of the State's

significant         interests    in        promoting       voter    confidence       in    the

outcome       of     elections,       improving        and     modernizing          election

procedures and deterring voter fraud.


                                              24
                                                                                No.    2012AP584



                                  III.       CONCLUSION

       ¶57    We conclude that the League has failed to prove Act 23

unconstitutional beyond a reasonable doubt.                        The legislature did

not exceed its authority under Article III of the Wisconsin

Constitution      when     it    required          electors       to    present       Act     23-

acceptable photo identification.                   Since 1859, we have held that

"it is clearly within [the legislature's] province to require

any person offering to vote[] to furnish such proof as it deems

requisite[] that he is a qualif[i]ed elector."                            Cothren, 9 Wis.

at    258    (*283-84).         Requiring      a    potential          voter    to    identify

himself or herself as a qualified elector through the use of Act

23-acceptable photo identification does not impose an elector

qualification      in     addition      to    those    set    out        in    Article       III,

Section 1 of the Wisconsin Constitution.

       ¶58    We also conclude that the requirement to present Act

23-acceptable           photo      identification             comes            within         the

legislature's         authority      to      enact     laws        providing          for     the

registration of electors under Article III, Section 2 because
Act   23-acceptable       photo     identification           is    the        mode    by    which

election officials verify that a potential voter is the elector

listed on the registration list.

       ¶59    Finally, we conclude that plaintiffs' facial challenge

fails       because      Act     23's        requirement           to     present           photo

identification is a reasonable regulation that could improve and

modernize election procedures, safeguard voter confidence in the

outcome of elections and deter voter fraud.                             See Crawford, 553


                                              25
                                                               No.   2012AP584



U.S. at 191.    Accordingly, we affirm the decision of the court

of appeals.

    By   the   Court.—The   decision   of   the   court   of     appeals   is

modified and as modified, affirmed; injunction vacated; cause

remanded to circuit court to dismiss the complaint.




                                  26
                                                                   No.    2012AP584.npc


       ¶60    N.     PATRICK    CROOKS,      J. (concurring)        In   bringing       a

purely      facial     challenge     to    Act   23,    Wisconsin's      voter      photo

identification         law,    the   plaintiffs        have    undertaken    what    is,

according to the United States Supreme Court, "of course, the

most       difficult    challenge     to     mount      successfully,       since     the

challenger must establish that no set of circumstances exists

under which the Act would be valid."1                         Because the majority

applies the presumption of constitutionality and requires that

the plaintiffs prove that the statute is unconstitutional beyond

a reasonable doubt, I join that holding and the mandate.                                I

write separately to emphasize that the result in this case is

compelled by the framework of law that we are bound to apply.

As has been recognized in other cases, it is often true that the

standard      of   review      and   the   applicable         analysis   dictate      the

outcome.2      That is the case here.

       ¶61    The question we must answer is not whether the voter

photo identification law is good policy, but whether we can say


       1
           United States v. Salerno, 481 U.S. 739, 745 (1987).
       2
       See Gibson v. State, 47 Wis. 2d 810, 819-20, 177 N.W.2d
912, 917 (1970) (holding that presumption that counsel has
fulfilled his duty of proper representation "is dispositive of
the defendant's claim" where there was no evidence to the
contrary) and Wisconsin Dep't of Revenue v. Menasha Corp., 2008
WI 88, ¶109, 311 Wis. 2d 579, 754 N.W.2d 95 (Crooks, J.,
concurring) (stating that "resolving the issue of deference is
key to a correct decision in this case"), and David R. Dow, The
Equal Protection Clause and the Legislative Redistricting Cases-
Some Notes Concerning the Standing of White Plaintiffs, 81 Minn.
L. Rev. 1123, 1130 (1997) (stating that in redistricting cases,
for example, "The issue of which standard of review to use is
pivotal because the choice of standard typically dictates the
outcome.")

                                            1
                                                                    No.   2012AP584.npc


beyond a reasonable doubt that Act 23 violates the Wisconsin

Constitution on any of the grounds claimed by these plaintiffs.

As a purely facial challenge, this challenge is distinct from

the challenge raised by plaintiffs in Milwaukee NAACP v. Walker,

2014       WI   98,    ___    Wis.    2d    ___,    ___   N.W.2d.   ___   (raising    a

challenge similar to that raised in Crawford v. Marion County

Election Bd., 553 U.S. 181 (2008), and providing a record with

evidence of the Act's burden on individual Wisconsin residents).

Given the framework within which the question must be answered,

I agree with the holding of the majority that the plaintiffs

have not shown beyond a reasonable doubt that the statute is

unconstitutional and I join that holding and the mandate.                       I can

reach no other conclusion than to uphold Act 23 based on the

purely facial challenge here.                   I therefore respectfully concur.

                         I.          THE ANALYTICAL FRAMEWORK

       ¶62      With    this    type       of   facial    challenge,   the   odds   are

against the plaintiffs at every turn.                         A court is bound to

recognize the presumption that the statute is constitutional.3
Here, the plaintiffs must prove otherwise beyond a reasonable

doubt.4         In considering such a challenge, a court must "resolve

any doubt about the constitutionality of a statute in favor of

upholding the statute."5

       3
       Tammy W. G. v. Jacob T., 2011 WI 30, ¶46, 333 Wis. 2d 273,
797 N.W.2d 854.
       4
       State v. Cole, 2003 WI 112, ¶11, 264 Wis. 2d 520, 665
N.W.2d 328.
       5
       Monroe Cnty. Dep't of Human Servs. v. Kelli B., 2004 WI
48, ¶16, 271 Wis. 2d 51, 2 678 N.W.2d 831.

                                                2
                                                                      No.    2012AP584.npc


       ¶63        In short, the question before us in this case is not

whether the Act is good policy, not whether it accomplishes what

it sets out to do, and not whether it is unfair under some

circumstances to some individuals.                      The question before us in

this       case    is   solely       this:   starting      with   a    presumption     of

constitutionality in its favor, are we are persuaded beyond a

reasonable          doubt     that    the    statute       violates    the     Wisconsin

Constitution in every circumstance?

                        II.    EVALUATING PLAINTIFFS' CHALLENGE

       ¶64        The plaintiffs argue that requiring a voter to show

photo identification is flatly outside the legislature's power

because      it     impermissibly       adds       a   qualification    to    the   three

elector qualifications listed in the Wisconsin Constitution: a

United States citizen, aged 18 or older, and a resident of an

election district in Wisconsin.6

       ¶65        The plaintiffs argue that case law explicitly states

that "an act of the legislature which deprives a person of the

right to vote, although he has every qualification which the
constitution makes necessary, cannot be sustained"7                          and "it is

incompetent for the legislature to add any new qualifications

for an elector."8             Furthermore, the plaintiffs contend that

       "[t]he    elector  possessing   the   qualifications
       prescribed by the constitution is invested with the

       6
       Wis. Const. art. III, § 1, states "Every United States
citizen age 18 or older who is a resident of an election
district in this state is a qualified elector of that district."
       7
           Knowlton v. Williams, 5 Wis. 308, 316 (1856).
       8
           Cothren v. Lean, 9 Wis. 279, 283 (1859).

                                               3
                                                                      No.    2012AP584.npc

       constitutional right to vote at any election in this
       state.   These qualifications are explicit, exclusive,
       and unqualified by any exceptions, provisos or
       conditions, and the constitution, either directly or
       by   implication,  confers   no  authority  upon   the
       legislature to change, impair, add to or abridge them
       in any respect."9

The plaintiffs cite Dells v. Kennedy10 for the proposition that

even permitted regulation of elections must be reasonable; they

contend that this photo identification requirement is, on its

face, unreasonable and must be struck down.                     The plaintiffs also

contend that the Act does not fall into any of the categories of

laws       that     the   legislature    is       permitted    to     pass   under    its

constitutional authority to regulate elections.11

       ¶66        However,   as   the    court       of     appeals    correctly      and

concisely          stated,   each   of    these           arguments    is    ultimately

unpersuasive in the context of this particular type of facial

challenge:


       First, we conclude that the League's "additional
       qualification" argument is defeated by concessions the
       League makes and by Wisconsin Supreme Court precedent

       9
            Dells v. Kennedy, 49 Wis. 555, 556, 6 N.W. 246 (1880).
       10
       Dells, 49 Wis. 555, 558 (stating that "a registry law can
be sustained only, if at all, as providing a reasonable mode or
method by which the constitutional qualifications of an elector
may be ascertained and determined, or as regulating reasonably
the exercise of the constitutional right to vote at an election"
(emphasis added)).
       11
       Article III, Section 2 of the Wisconsin Constitution
states, "Laws may be enacted:   (1) Defining residency. (2)
Providing for registration of electors. (3) Providing for
absentee voting. . . . "

                                              4
                                                        No.     2012AP584.npc

    addressing the authority of the legislature to enact
    laws allowing officials to ascertain at the polls
    which potential voters are qualified to vote.       The
    League has not shown that the photo identification
    requirement   is   on    its   face   an    "additional
    qualification" for voting, as opposed to a voter
    registration regulation that allows election officials
    "to ascertain whether the person offering to vote
    possessed the qualifications required."   See State ex
    rel. Cothren v. Lean, 9 Wis. 254, [*279], 258, [*283]
    (1859).

    Second, we reject the League's additional, implied
    argument that the requirement is unconstitutional
    under the Article III right to suffrage because it
    imposes a restriction that is, on its face, so
    burdensome that it effectively denies potential voters
    their right to vote, and is therefore constitutionally
    "unreasonable."   We express no opinion as to whether
    such an argument might have merit if supported by fact
    finding regarding the burdens imposed.     However, in
    this facial challenge in which the League does not
    rely on any fact finding or evidentiary material, the
    implied argument falls short.

    Finally, as to the argument that, even if the
    requirement is not an "additional qualification" or
    constitutionally    "unreasonable,"    the    legislature
    exceeded its authority in enacting it, we conclude
    that this argument collapses with a concession by the
    League, which we believe is a warranted concession.
    The concession is that the legislature has implicit
    but broad constitutional authority to establish a
    voting   registration   system   under   which   election
    officials may require potential voters to identify
    themselves   as   registered    voters,    including   by
    requesting photo identification.
League of Women Voters v. Walker, 2013 WI App 77, ¶¶3-5, 348

Wis. 2d 714, 834 N.W.2d 393.

    ¶67     The problem for the plaintiffs is that implicit in and

essential   to   the   registration    process   is   the     necessity   of

confirming the identity of the voter at the polling place.                 A
facial challenge to a more onerous identification requirement,

                                   5
                                                                     No.       2012AP584.npc


such as a requirement for every voter to show a current passport

or a group of documents, might conceivably be successful, but a

facial     challenge        to    a     requirement     of   the     kind       of   photo

identification requirements at issue here cannot prevail.                                 The

test for a purely facial challenge, as noted before, is not

whether    the       law   is    ever    unconstitutional      but    whether        it    is

always and in every application unconstitutional.

                                  III.       CONCLUSION

    ¶68        The    question        here   is   not   whether    the     photo      voter

identification law is good policy, but whether the plaintiffs

have proved beyond a reasonable doubt that the Act violates the

Wisconsin Constitution on any of the grounds claimed by these

plaintiffs.          Given the framework within which the question must

be answered, I agree with the holding of the majority that the

plaintiffs have not shown beyond a reasonable doubt that the

statute is unconstitutional, and I join that holding and the

mandate.       I can reach no other conclusion than to uphold Act 23

based     on    the    purely      facial     challenge      here.         I     therefore
respectfully concur.




                                              6
                                                        No.   2012AP584.ssa


     ¶69    SHIRLEY S. ABRAHAMSON, C.J.     (dissenting).

     Who are to be the electors . . . ? Not the rich, more
     than the poor; not the learned, more than the
     ignorant; not the haughty heirs of distinguished
     names, more than the humble sons of obscurity and
     unpropitious fortune.    The electors are to be the
     great body of the people of the United States.
The Federalist No. 57 (1788) (James Madison).

     ¶70    Today the court follows not James Madison——for whom

Wisconsin's capital city is named——but rather Jim Crow——the name

typically used to refer to repressive laws used to restrict

rights, including the right to vote, of African-Americans.

     ¶71    Indeed the majority opinion in NAACP v. Walker1 brings

the specter of Jim Crow front and center.        It invalidates costs

incurred by a qualified Wisconsin voter to obtain an Act 23

photo ID as an illegal de facto poll tax.2

     ¶72    The right to vote is "a sacred right of the highest

character."3    The Wisconsin Constitution explicitly confers the

right to vote upon all qualified individuals as specified in

Article III, Section 1 of the Constitution:



     1
       NAACP v. Walker, 2014 WI           98,   ___   Wis. 2d ___,     ___
N.W.2d ___, mandated of even date.
     2
       State and federal courts in the Jim Crow era rejected
challenges to literacy tests, Lassiter v. Northampton County Bd.
of Elections, 360 U.S. 45 (1959), and poll taxes, Breedlove v.
Suttles,   302  U.S.   277  (1937),   and  onerous   registration
requirements that functionally deprived millions of the right to
vote.    Asserting that the legislature had broad powers to
determine the conditions under which the right of suffrage may
be exercised, the courts turned a blind eye to the effects of
these tests on the electorate, especially African-Americans.
     3
         State v. Phelps, 144 Wis. 1, 15, 128 N.W. 1041 (1910).

                                  1
                                                                   No.    2012AP584.ssa

     Every United States citizen age 18 or older who is a
     resident of an election district in this state is a
     qualified elector of that district.
So fundamental and sacred is the right to vote, the Wisconsin

Constitution allows legislative regulation of voting in only a

few enunciated areas.    Wis. Const. art. III, § 2.4

     ¶73   The right to vote is "a fundamental political right,

because [it is] preservative of all rights."5                     Accordingly, the

right to vote is the most protected of rights:

     The right of a qualified elector to cast a ballot for
     the election of a public officer, which shall be free
     and equal, is one of the most important of the rights

     4
       Article   III,   Section       2       of   the    Wisconsin      Constitution
provides:

     Laws may be enacted:

     (1) Defining residency.

     (2) Providing for registration of electors.

     (3) Providing for absentee voting.

     (4) Excluding from the right of suffrage persons:

          (a) Convicted     of    a       felony,        unless   restored    to
     civil rights.

          (b) Adjudged by a court to be incompetent or
     partially incompetent, unless the judgment specifies
     that the person is capable of understanding the
     objective of the elective process or the judgment is
     set aside.

     (5) Subject to ratification by the people at a general
     election,   extending  the   right   of  suffrage   to
     additional classes.
     5
       Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).   See also
Reynolds v. Sims, 377 U.S. 533, 562 (1964) (right to vote is "a
fundamental political right . . . preservative of all rights.")
(quoting Yick Wo, 118 U.S. at 370).

                                          2
                                                                       No.   2012AP584.ssa

       guaranteed to him [or her] by the constitution.     If
       citizens are deprived of that right, which lies at the
       very basis of our Democracy, we will soon cease to be
       a Democracy.     For that reason, no right is more
       jealously guarded and protected by the departments of
       government under our constitutions, federal and state,
       than is the right of suffrage.     It is a right which
       was enjoyed by the people before the adoption of the
       constitution and is one of the inherent rights which
       can be surrendered only by the people and subjected to
       limitation only by the fundamental law.
State ex rel. Frederick v. Zimmerman, 254 Wis. 600, 613, 37

N.W.2d 473 (1949) (emphasis added).

       ¶74       When    an   individual    who       is     qualified       under    the
Wisconsin Constitution goes to the polls to vote, no legislative

action may prevent that person from casting a ballot:

       [A]n act of the legislature which deprives a person of
       the right to vote, although he has every qualification
       which the constitution makes necessary, cannot be
       sustained.
State ex rel. Knowlton v. Williams, 5 Wis. 308, 316 (1856).

       ¶75       Yet under the majority opinion, an individual who has

fulfilled every requirement to vote——he or she is a citizen of

the United States, is a resident of Wisconsin, is over the age
of 18, and is registered——can nonetheless be denied the right to

vote       for     failing     to    produce      a    government-issued             photo

identification enumerated in Act 23,6 such as a driver's license

or receipt therefore, a State identification card or receipt

therefore,        a     military    identification         card,   a    United    States

passport, certain certificates of United States naturalization,




       6
       I refer to these enumerated photo identifications as "Act
23 photo ID."
                                3
                                                       No.       2012AP584.ssa


an identification by a federally recognized tribe, or certain

university and college identification cards.7




     7
         Section 1 of 2011 Wis. Act 23 reads as follows:

     5.02(6m) of the statutes is created to read:

     5.02(6m) "Identification" means any of the following
     documents issued to an individual:

         (a) One of the following documents that is unexpired
         or if expired has expired after the date of the most
         recent general election:

            1. An operator's license issued under ch. 343.

            2. An identification card issued under s. 343.50.

            3. An identification      card   issued   by     a     U.S.
            uniformed service.

            4. A U.S. passport.

         (b) A certificate of U.S. naturalization that was
         issued not earlier than 2 years before the date of
         an election at which it is presented.

         (c) An unexpired driving receipt under s. 343.11.

         (d) An unexpired identification card receipt issued
         under s. 343.50.

         (e) An identification card issued by a federally
         recognized Indian tribe in this state.

         (f) An unexpired identification card issued by a
         university or college in this state that is
         accredited, as defined in s. 39.30(1)(d), 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 as
         a student at the university or college on the date
         that the card is presented.

                                  4
                                                                      No.   2012AP584.ssa


       ¶76       These   Act    23    photo    IDs    are    not    mandated     in     the

Wisconsin Constitution as a qualification to vote.8

       ¶77       The State may require verification of the identity of

the voter, but Act 23 severely restricts and limits the form of

identification that enables a qualified voter to cast a ballot.

Rather       than     merely     verify       identity,     Act    23's     requirement

conditions the right to vote on possession of a restricted list

of identifying documents; no other form of proof of identity

than an Act 23 photo ID allows a qualified voter to verify

identity and cast a ballot.                    By restricting verification of

identity to only certain government-issued photo IDs, Act 23

does       not    condition     the    right     to   vote    on    verification         of

identity.           Instead,    Act   23   conditions       the    right    to   vote    on

production of a particular identity card.                     Requiring a specific

photo ID is an additional qualification on the right to vote,

and is therefore impermissible under the Wisconsin Constitution.

       ¶78       Without       any     evidence        that        in-person          voter

impersonation is a problem in Wisconsin,9 the voting restrictions
that the majority opinion approves today give Wisconsin the most

restrictive voting laws in America,10 laws that systematically
       8
       Not every government-issued photo ID satisfies Act 23.
Act 23 does not allow an individual to use a Veteran's ID card,
the photo ID that the United States Department of Veterans
Affairs issues when veterans leave the military, or an ID from
one of Wisconsin's two-year technical colleges.
       9
            NAACP, 2014 WI 98, ¶¶134-136 (Crooks, J., dissenting).
       10
       For   a   helpful   list   of   voter   registration and
identification requirements from across the country, see
National Conference of State Legislatures, Voter Identification
Requirements, tbl. 2, http://www.ncsl.org/research/elections-
and-campaigns/voter-id.aspx (last visited July 14, 2014).
                                5
                                                                  No.    2012AP584.ssa


disenfranchise entire classes of individuals who are without the

required Act 23 photo ID.          For example, an estimated 23 percent

of persons aged 65 and over do not have a Wisconsin driver's

license or other Act 23 photo ID.11

     ¶79    Qualified     and   registered         Wisconsin     individuals         who

voted in the last election may be barred from voting in the next

election    under   today's     majority       opinions    in     NAACP        and   the

instant case unless they obtain an Act 23 photo ID.                       Their vote

is now contingent upon possession of a specific ID, not their

constitutional qualifications to vote or their identity.                             The

possession of an Act 23 photo ID may be further contingent on

the discretion of an agency administrator who determines whether

an   individual     can   obtain    an       Act   23    photo    ID.12          "These

disenfranchised     citizens    would        certainly   include        some    of   our

friends, neighbors, and relatives."13



     No other state requires the production of one of a list of
permissible government-issued photo identifications as in Act
23, and no other state forbids other methods of voter identity
verification such as affidavit, as does Act 23.
     11
        In contrast, 99% of Indiana's voting age population
possessed photo IDs that complied with the new Indiana law.
Crawford v. Marion County Elections Bd., 553 U.S. 181, 188 n.6
(2008).
     12
          See NAACP, 2014 WI 98, ¶67.
     13
          Circuit court op. at 9.

     We would ignore reality were we not to recognize that the
requirements of Act 23 fall with unequal weight on voters
according to economic status.   See Bullock v. Carter, 405 U.S.
134, 144 (1972); see also NAACP, 2014 WI 98, ¶¶123-129 (Crooks,
J., dissenting).

                                         6
                                                                      No.    2012AP584.ssa


       ¶80    I write in dissent to discuss both the instant case

and the NAACP case.

       ¶81    First, the two cases address the constitutionality of

the same Act 23 but are inconsistent.

       ¶82    According to NAACP, the fees imposed to obtain an Act

23 photo ID constitute an impermissible de facto poll tax.14

Thus    Act    23    creates   an    unconstitutional          precondition           on     the

right to vote, according to NAACP.                  A charge to comply with Act

23 creates a severe and unconstitutional burden on the right to

vote, according to NAACP.15

       ¶83    In the instant case, the court, addressing the same

Act    23,    concludes      that    no    precondition        to    voting       has       been

created.            This    inconsistency        between       the    two     cases           is

unexplained.

       ¶84    How can the de facto poll tax be unconstitutional in

the    NAACP    case,       while    the    court    declares        all     of       Act     23

constitutional         in    the     instant     case     as    not     imposing            any

additional qualifications for voters?                    Isn't NAACP precedential
in the instant case?

       ¶85    Additionally, the NAACP majority opinion is internally

inconsistent in failing to invalidate various fees and costs

associated with obtaining documentation necessary to obtain an

Act    23     photo    ID.         Fees    and   costs     imposed      on        a    person

constitutionally qualified to vote are an integral part of the

Act 23 photo ID requirement.

       14
            See NAACP, 2014 WI 98, ¶83 n.9 (Crooks, J., dissenting).
       15
            NAACP, 2014 WI 98, ¶¶61-65.

                                            7
                                                                           No.    2012AP584.ssa


      ¶86    Second, I articulate the key principles from our case

law   that    guide    the     high      and       exacting       standard       of   judicial

scrutiny required for review of legislation regulating the right

to vote.

      ¶87    Neither NAACP nor the instant case applies Wisconsin's

voting      rights     jurisprudence               to     interpret        the        Wisconsin

Constitution in the present case.

      ¶88    Indeed, the two opinions apply different standards of

review to gauge the constitutionality of Act 23 under Article

III of the Wisconsin Constitution.                        How can that be?            The same

Act 23 is challenged in both cases as unconstitutional under

Article III of the state constitution.                            Both cases present a

facial challenge.          The plaintiffs in both cases assert that Act

23 imposes a burden on qualified voters.                           No persuasive reason

is given for the different standards of review in the two cases.

      ¶89    Our     state's      case    law       outlines       key    principles         that

protect the right to vote in the face of legislative election

regulations.        The "presumption of constitutionality"16 applied by
the majority opinion in the instant case is wholly inappropriate

under      longstanding      state       law        for     the     protection         of    the

fundamental, sacred right to vote.

      ¶90    Third, I apply the principles of the Wisconsin voting

rights cases to the instant case and conclude that the League of

Women      Voters    and    the     circuit         court     are        correct:      Act    23

unconstitutionally adds a qualification to the right to vote.



      16
           Majority op., ¶¶16-17; concurrence, ¶¶62-63.

                                               8
                                                                       No.    2012AP584.ssa


     ¶91    If a qualified voter fails to produce an Act 23 photo

ID, Act 23 bars that person from voting even though that voter

meets     all   the     qualifications            enumerated     in    the      Wisconsin

Constitution      and    meets     all    the      statutory     voter       registration

requirements.           Thus     Act     23    deprives     qualified,         registered

Wisconsin voters of the right to vote, based solely on their

failure    to   meet     a     legislatively        established       precondition      to

voting.         Such     deprivation           amounts      to    an     impermissible

legislative amendment of the Wisconsin Constitution to add a

voter qualification.

     ¶92    Today's      holding,        along     with   the    holding       in   NAACP,

undermines the very foundation of our democracy and deprives

individuals of the most sacred of constitutional rights through

no fault of their own.17

     ¶93    Act 23 is facially unconstitutional and void.                             This

court cannot rewrite Act 23 to make it constitutional.                                That

task is for the legislature.

     ¶94    Accordingly, I dissent.
                                              I

     ¶95    The    opinions       in     the      instant    case      and    NAACP    are

inconsistent.      If Act 23 imposes a de facto poll tax in NAACP,

does it not impose a de facto poll tax in the instant case?                            The

majority opinion and Justice Crooks' dissent in NAACP recognize

that Act 23 in effect creates, in whole or in part, facially




     17
          Dells v. Kennedy, 49 Wis. 555, 557, 6 N.W. 246 (1880).

                                              9
                                                                   No.   2012AP584.ssa


unconstitutional        restrictions     on    the    right   to     vote.18      The

holding of NAACP is precedential and governs the instant case.

     ¶96    The NAACP majority opinion follows the lead of the

United States Supreme Court in Harper v. Virginia State Board of

Elections, 383 U.S. 663 (1966), which finally struck down poll

tax laws that were created to burden African-American voters.19

     ¶97    In Harper, the Court struck down a $1.50 poll tax on

the ground that "payment of any fee" to a Virginia governmental

entity    could   not    be   required    as    a     precondition       of   voting.

Although the Harper Court discussed the uneven impact such a fee

may have on those with limited financial resources, the Court

struck down the fee for all voters.                  The Harper Court declared

that payment of a fee to vote is invidious discrimination and

has no relation to voter qualifications:

     [W]e must remember that the interest of the State,
     when it comes to voting, is limited to the power to
     fix qualifications. Wealth, like race, creed, or
     color, is not germane to one's ability to participate
     intelligently   in  the   electoral   process. . . . To
     introduce wealth or payment of a fee as a measure of a
     voter's qualifications is to introduce a capricious or
     irrelevant factor.   The degree of the discrimination
     is irrelevant. . . . [T]he requirement of fee paying
     causes an 'invidious' discrimination. . . .

             . . . .




     18
       NAACP, 2014 WI 98, ¶¶60-65; id., ¶¶86-97 (Crooks, J.,
dissenting).
     19
       The court overruled Breedlove, 302 U.S. 277, which had
upheld poll taxes as constitutional just 30 years prior. By the
time Harper was mandated, only four states still imposed poll
taxes: Texas, Alabama, Virginia, and Mississippi.

                                       10
                                                                      No.    2012AP584.ssa

    For to repeat, wealth or fee paying has, in our view,
    no relation to voting qualifications; the right to
    vote is too precious, too fundamental to be so
    burdened or conditioned.20
    ¶98     The      NAACP     majority        opinion          asserts          that     "to

constitutionally       administer      Act     23,   the       [Department        of    Motor

Vehicles]     may    not     require     documents        in     order      to    issue    a

[Department     of    Transportation]        photo     identification             card    for

voting that require payment of a fee to any government agency."

NAACP, 2014 WI 98, ¶7 n.5.

    ¶99     Despite apparently invalidating                    some   fees       and costs

for obtaining Act 23 photo IDs, the NAACP majority opinion does

not resolve the de facto poll tax issue for other fees and

costs.

    ¶100 For example:

         • An individual may need to obtain a court order in the

            case of a name change, gender change, adoption, or

            divorce,       which   will      require       additional        filing       and

            court costs.21

         • An       individual     may       need    to        provide      a     marriage
            certificate       or   certified         copy       of    a     judgment      of

            divorce,22 which will require court costs, filing fees,

            and other costs associated with a court order.




    20
       Harper v. Virginia State Bd. of Elections, 383 U.S. 663,
668, 670 (1966) (internal quotation marks omitted).
    21
         Wis. Admin. Code § Trans 102.15(3)(a)17 (Feb. 2013).
    22
         Wis. Admin. Code § Trans 102.15(4)(a)11. (Feb. 2013).

                                          11
                                                                 No.   2012AP584.ssa


          • An individual must provide citizenship documentation

            to obtain Act 23 photo ID,23 such as a passport, a

            certificate      of      United       States      citizenship,           a

            certificate   of      naturalization,     etc.,      each    of    which

            have   associated        costs      imposed     by     the        federal

            government.      The    fee    for    applying    is       $165    for   a

            passport for first-time adult applicants,24 and $600

            for a certificate of naturalization.25

     ¶101 Exactly    which     costs      and    severe    burdens      the     NAACP

majority opinion invalidates is anyone's guess.

     ¶102 The NAACP majority opinion avers that it cures the

unconstitutional imposition of these costs and fees through its

"saving construction" of Wis. Admin. Code § Trans 102.15(3)(b)-

(c).26

     23
          Wis. Admin. Code § Trans 102.15(3m) (Feb. 2013).
     24
       See United States Passports & International Travel,
United    States   Department    of    State,    Passport   Fees,
http://travel.state.gov/content/passports/english/passports/info
rmation/costs.html (last visited July 14, 2014).
     25
       See   Instructions   for  Form   N-600,  Application for
Certificate of Citizenship, OMB No. 1615-0057 at 7 (2014),
available                                                    at
http://www.uscis.gov/sites/default/files/files/form/n-
600instr.pdf (last visited July 14, 2014).
     26
       Wisconsin Admin.           Code    § Trans 102.15(3)(b)-(c)              (Feb.
2013) states as follows:

     (b) If a person is unable to provide documentation
     under par. (a), and the documents are unavailable to
     the person, the person may make a written petition to
     the administrator of the division of motor vehicles
     for an exception to the requirements of par. (a). The
     application shall include supporting documentation
     required by sub. (4) and:
                               12
                                                                         No.    2012AP584.ssa


      ¶103 The NAACP majority opinion reads this Department of

Transportation regulation to provide that if a qualified voter

asserts that he or she is obtaining a photo ID for the purposes

of    voting,    the     administrator          shall      exercise          his      or    her

discretion      in     deciding      whether         to     issue        a      DOT        photo

identification card without the documents referenced in § Trans

102.15(3)(a) "in a constitutionally sufficient manner."                                    NAACP

majority    op.,     ¶71.      The   NAACP       majority      opinion          leaves       the

administrator and the public to guess what a "constitutionally

sufficient manner" is.

      ¶104 The       NAACP   majority      opinion        regarding       Department          of

Transportation        regulations     is    not,     however,       a     cure       for    the

constitutional defect.

      ¶105 First, the NAACP majority opinion provides no process

for    an    individual        to    demonstrate          that      he         or     she    is

"constitutionally            'unable'"          to    obtain         the            necessary

documentation           required           by           Wis.            Admin.              Code



      1. A certification of the person's name, date of birth
      and   current   residence  street   address   on   the
      department's form;

      2. An explanation of the circumstances by which the
      person is unable to provide any of the documents
      described in par. (a); and

      3. Whatever documentation is available which states
      the person's name and date of birth.

      (c)    The   administrator   may   delegate   to   the
      administrator's subordinates the authority to accept
      or reject such extraordinary proof of name and date of
      birth.


                                           13
                                                                                 No.     2012AP584.ssa


§ Trans 102.15(3)(a).27               What procedures must be followed by the

Department         of     Transportation          administrator              and       his     or       her

designees when reviewing a petition or request?                                        What is the

timeline for petitioning the Department of Transportation or the

Department of Motor Vehicles and the timeline for the agencies

to    process       the    petition        or    request?              What      proof        may      the

administrator           require?        Can      a     Department           of     Transportation

administrator           and     his   or    her       designees         apply          his     or       her

discretion to deny Act 23 photo ID because he or she does not

find the petition credible?                     How may the administrator's ruling

be challenged?

       ¶106 The NAACP majority opinion appears to leave discretion

in the hands of the Department of Transportation administrator

and   his     or    her       designees     but       provides         no     guidance            to   the

Department         of   Transportation           or    to       the    public       about          proper

procedures and the rights of qualified voters.

       ¶107 Second, the section of administrative regulations that

the    NAACP       majority       opinion        "construes"            to       cure        Act       23's
constitutional            defects     appears         to    apply       only       to        documents

regarding      proof       of    name      and    date      of        birth,       not       to     other

documentation           required      to    obtain         an    Act     23      photo        ID.        A

naturalization certificate required to prove citizenship or a

marriage      certificate         required        to    prove         identity         may     require

payments to a government agency; these documents are not covered

by the NAACP majority opinion's "saving" regulation.



       27
            NAACP, 2014 WI 98, ¶69.

                                                 14
                                                                    No.    2012AP584.ssa


      ¶108 Third,    as     Justice    Crooks'     dissent     notes,        fees   and

costs other than fees paid directly to government agencies may

be required to obtain an Act 23 photo ID.28                     These costs are

similarly     unaddressed      and    unresolved      and     may     be     invidious

discrimination.

      ¶109 Thus, although the NAACP majority opinion appears to

deem invalid any fees and costs paid to any government agency

necessary for documentation to obtain an Act 23 photo ID, its

supposed "saving construction" of the administrative regulations

fails to cure the myriad variety of costs that Act 23 imposes on

individuals    attempting      to    obtain    the    photo    ID     necessary      to

exercise the right to vote.

      ¶110 The      NAACP      majority        opinion        invalidates           the

unconstitutional imposition of some de facto poll taxes as part

of Act 23, but leaves other de facto poll taxes, fees, and costs

intact.

      ¶111 Yet the majority opinion in the present case declares

that Act 23 is facially constitutional.                  Neither the majority
opinion nor I can explain the inconsistency.

                                        II

      ¶112 The majority opinion erroneously uses the "presumption

of    constitutionality"       standard       of     review    to         support   its

conclusions that Act 23 is constitutional.                  Majority op., ¶¶16-

17.   This standard is particularly inappropriate in the instant

case, because:


      28
       NAACP,     2014    WI    98,    ¶¶102-103,       117-132       (Crooks,      J.,
dissenting).

                                        15
                                                                      No.   2012AP584.ssa


       A. The majority opinion in NAACP has already declared a

           fee imposed by Act 23 an unconstitutional prerequisite

           for a qualified voter to exercise the right to vote;

       B. The majority opinion in NAACP apparently uses several

           different standards of review; and

       C. The presumption of constitutionality standard does not

           comport       with    longstanding      state       case      law   in    which

           legislative          regulation    of    voting       rights        has   been

           challenged.

                                        A

     ¶113 The court has already declared in NAACP that, as a

matter of law, the fees imposed by Act 23 for a Department of

Transportation       photo    identification       card    are      in    effect     a   de

facto poll tax.       The NAACP court has declared that the fees are

severe, are so burdensome that they effectively deny qualified

persons    their      right      to   vote,        and    are       constitutionally

impermissible.

     ¶114 The NAACP case is precedential in the instant case.
When the court itself has in effect invalidated an integral part

of   Act   23   as    unconstitutional,        how       can    a     presumption        of

constitutionality apply in the instant case?                     How can the court

declare Act 23 constitutional in the instant case?

                                        B

     ¶115 How      can   two     opinions,    League      of     Women      Voters       and

NAACP, mandated the same day, use a different standard of review

in gauging the constitutionality of Act 23?                     The same Act 23 is
challenged in both cases as unconstitutional under Article III

                                        16
                                                                          No.       2012AP584.ssa


of the state Constitution.                  A facial challenge is made in both

cases.29          Indeed, the plaintiffs in NAACP expressly disclaim that

that they are making an as-applied challenge.30                                The majority

opinion       in     NAACP      concedes     that    the    challenge          is     a    facial

challenge.31

       ¶116 In the instant case, the majority opinion employs the

"presumption             of    constitutionality"       standard,         mucking         it    up

somewhat.          See ¶61, infra.

       ¶117 In NAACP, it is unclear what standard of review, if

any,        the     majority      opinion     employs       to     reach        its       result.

Depending on the section, the majority opinion in NAACP asserts

several different standards of review.

       ¶118 In the section labeled "Standard of Review," the NAACP

majority opinion asserts that "[i]f we conclude that a voter

regulation creates a severe burden on electors' right to vote,

we will apply strict scrutiny to the statute, and conclude that

it is constitutional only if it is narrowly drawn to satisfy a

compelling          state      interest."     NAACP,       2014    WI    98,     ¶22.          This
appears to be some variation on the Anderson/Burdick federal

test    for        Equal      Protection    Clause   and    First        Amendment         facial

challenges          to    statutes   that    impair     the      right    to    vote.           See

NAACP, 2014 WI 98, ¶¶26-39.



       29
       See NAACP, 2014 WI 98, ¶¶19,                         21;    majority          op.,      ¶14;
Justice Crooks' concurrence, ¶¶61-63.
       30
            Brief of the Plaintiffs-Respondents at 30.
       31
            NAACP, 2014 WI 98, ¶¶19, 21.

                                              17
                                                                             No.    2012AP584.ssa


       ¶119 In      a     strict-scrutiny            analysis,       the     State       has     the

burden      to    show    that    the    regulation        is    necessary         to     serve    a

compelling        state    interest       and      that   it    is     narrowly          drawn    to

achieve      that    end."        State       v.     Baron,     2009    WI    58,       ¶45,     318

Wis. 2d 60, 769 N.W.2d 34.

       ¶120 Yet in the section titled "Foundational Principles,"

the     NAACP       majority        opinion          asserts     the       presumption            of

constitutionality is the proper standard, stating that "statutes

are presumed to be constitutional."                           NAACP, 2014 WI 98, ¶24.

The    NAACP      majority       opinion       further     asserts         that     it    is     the

plaintiffs        challenging       the       statute     who    "must      prove        that    the

statute is unconstitutional beyond a reasonable doubt."                                         Id.,

¶25.

       ¶121 The majority opinion also asserts that the presumption

of constitutionality "may vary depending on the nature of the

constitutional claim at issue."                      NAACP, 2014 WI 98, ¶24 (citing

League of Women Voters).                 An identical statement appears in the

majority opinion in the instant case, citing NAACP.                                      Majority
op., ¶16.           This statement is an unexplained cipher, with no

meaning or guidance for the analysis in either case or in future

cases.

       ¶122 In its section titled "Saving construction," the NAACP

majority         opinion    applies        yet       another     standard          of     review,

asserting that Act 23 is not unconstitutional, averring that "we

do    not   initially       weigh       the    burden     identified . . . because                 a

saving      construction          of      the      administrative            rule        must     be



                                                18
                                                                   No.    2012AP584.ssa


considered first."32           Yet a court typically applies a "saving

construction"       by    first     assessing         whether     the    statute        is

unconstitutional         and    only    then      assessing     whether     a    saving

construction can be applied.33

       ¶123 The    NAACP       majority      opinion     usurps   the     legislative

role:        "[A]lthough this Court will often strain to construe

legislation so as to save it against constitutional attack, it

must        not   and     will     not        carry      this     to      the        point

of . . . judicially rewriting it.                 Otherwise there would be no

such thing as an unconstitutional statute."                       State v. Zarnke,

224 Wis. 2d 116, 139-40, 589 N.W.2d 370 (1999) (quoting United

States v. X-Citement Video, 513 U.S. 64, 86 (1994) (Scalia, J.,

dissenting)) (internal quotation marks and citations omitted).

       ¶124 Finally,       after       its     various    machinations          on    the

standard of review, the NAACP majority opinion claims to apply

rational-basis review.           NAACP, 2014 WI 98, ¶71.

       ¶125 Only by applying multiple contradicting standards of

review can the NAACP majority opinion reach its multiple and


       32
            NAACP, 2014 WI 98, ¶65.
       33
       See State v. Zarnke, 224 Wis. 2d 116, 124-25, 139-40, 589
N.W.2d 370 (1999) (determining whether to apply a saving
construction after State conceded that statute would be invalid
otherwise); State v. Hall, 207 Wis. 2d 54, 67, 557 N.W.2d 778
(1997) (presenting three issues, and first determining that
statute is unconstitutional, followed by saving construction
analysis).

     The NAACP majority opinion cites a variety of cases that
deal with the jurisprudential doctrine of interpreting statutes
to avoid a constitutional conflict.    See NAACP, ¶64.    None of
these cases addresses the "savings construction" doctrine.

                                             19
                                                                       No.    2012AP584.ssa


contradictory holdings: in one breath invalidating fees required

for    documentation          to    obtain    an    Act     23     photo      ID     as    an

unconstitutional de facto poll tax and severe burden, and in the

next breath asserting that Act 23 is nonetheless constitutional

and    that    "the    burdens      of   time,     inconvenience        and    cost       upon

electors' right to vote are not severe under our interpretation

of § Trans 102.15 . . . ."34

       ¶126 The       NAACP    majority      opinion's     shifting        standards       of

review throughout the opinion make it impossible to evaluate how

or why the court reaches its decision.

       ¶127 The majority opinions in NAACP and in the instant case

fail    to    rely    on     Wisconsin    cases     that       have    over    the     years

interpreted and applied the voting provisions of the Wisconsin

Constitution.35

       ¶128 The       majority       opinions      ignore        the    uniqueness         of

Wisconsin's       constitutional         provision        on     voting       rights      and

Wisconsin's unique jurisprudence protecting the right to vote

under its own constitution.              The United States Constitution does
not protect voting rights in the same way as does the Wisconsin

Constitution,36        and    the   federal      challenges      to    state    voter      ID

legislation are based on the Equal Protection Clause.
       34
            NAACP, 2014 WI 98, ¶72.
       35
       See Crawford, 553 U.S. 181; Burdick v. Takushi, 504 U.S.
428 (1992); Anderson v. Celebrezze, 460 U.S. 780 (1983).
       36
       Compare San Antonio Indep. Sch. Dist. v. Rodriguez, 411
U.S. 1, 132 n.78 (1973) ("[T]he right to vote, per se, is not a
[federal] constitutionally protected right.") with Phelps, 144
Wis. at 14-15 ("[T]he right to vote is one . . . guaranteed by
the declaration of rights and by section 1, art. 3 of the
[Wisconsin] Constitution.").
                               20
                                                                          No.   2012AP584.ssa


     ¶129 The majority opinion in the present case attempts to

distinguish      the    League       of    Women         Voters   and     NAACP      cases   to

justify its different approaches to the standard of review.                                  See

majority op., ¶11 n.8.

     ¶130 The majority opinion claims that the two cases are

different because the League of Women Voters does not assert

that Act 23 is so burdensome that it effectively denies the

right to vote.          Majority op., ¶11, n.8.                   The majority opinion

ventures that, in contrast, in NAACP the burdens on the right to

vote are at issue.         Majority op., ¶44 n.11.37

     ¶131 This         distinction        is     not      borne     out   in    the     cases.

Burdens    on    the    right    to       vote      of    constitutionally           qualified

voters are at issue in both cases.

     ¶132 The      League       of    Women      Voters      complains         that    Act   23

adopts and adds qualifications for voting that are not in the

Wisconsin       Constitution,         namely         requiring        production        of    a

specified photo ID, and thus on its face Act                               23 impairs or

destroys the voting right of persons constitutionally qualified
to vote and creates an impermissible burden on the right to

vote.38     Act    23    destroys         or     burdens      the    right      to    vote   by

excluding from voting any registered, qualified voter who fails

to display the mandated form of photo ID.


     37
       See also Justice Crooks' concurrence, ¶61 (determining
that the claims in the instant case are "distinct from the
challenge raised" in NAACP because the plaintiffs in NAACP
"provid[ed] a record with evidence of the Act's burden on
individual Wisconsin residents").
     38
          See Brief of Plaintiffs-Respondents-Petitioners at 38-39.

                                               21
                                                               No.    2012AP584.ssa


     ¶133 In contrast, the NAACP asserts that Act 23 imposes

burdens     of      time,      inconvenience,       and   costs         on     the

constitutionally qualified voter to obtain an Act 23 photo ID.39

     ¶134 In both the instant case and NAACP, the challenges are

plainly    facial    challenges     asserting   a     burden     on     Wisconsin

citizens    who     are     qualified   to   vote    under     the      Wisconsin

Constitution.40      The precise nature of the burden complained of




     39
       The record in League of Women Voters also reflects
financial and other costs that burden qualified electors' right
to vote.    See, e.g., Plaintiff's Amended Complaint, R22:7-9,
¶¶18-26; Affidavit of Michael McCabe, President of Wisconsin
Democracy Coalition (alleging that various members of his
organization will have their right to vote burdened by the photo
identification requirements); Affidavit of Analiese Eicher,
Government Relations Director, United Council of UW Students,
(alleging that many universities and colleges do not have photo
identification cards that comply with Act 23 and do not plan to
produce such cards, and that this will prevent many students for
whom student identification cards are primary identification
from voting); Affidavit of Ingrid Thompson (alleging that
individuals in the senior living facility that she directs will
be unable to vote); Affidavit of Amy Mendel-Clemens in Support
of Amicus Curiae Brief on Behalf of Dane County (alleging that
replacement birth certificates are difficult or impossible to
obtain from certain states, and that California and Pennsylvania
have not responded or do not respond to the forms used by Dane
County).
     40
       The distinction between a facial and an as-applied
challenge is not always clear.       Justice Crooks states the
standard of review as follows: "The appropriate framework to
analyze the plaintiffs' challenge to Act 23 is the modified
facial challenge approach, which the United States Supreme Court
has applied in comparable cases."       NAACP, 2014 WI 98, ¶85
(Crooks, J., dissenting) (footnote omitted).

     There is also confusion about the application of the
"presumption of constitutionality" standard of review to a
facial challenge or an as-applied challenge.

                                        22
                                                                  No.    2012AP584.ssa


in each case is different, but in both cases the plaintiffs urge

that Act 23 imposes a burden on qualified voters impairing or

depriving them of their Wisconsin constitutionally guaranteed

right to vote.

    ¶135 If     a    more    stringent       standard      of   review     than   the

"presumption of constitutionality" applies in NAACP, it must, in

my opinion, also apply in the instant case.

    ¶136 Neither the majority opinion in the instant case, nor

the concurrence in the instant case, nor the majority opinion in

NAACP     advances   satisfactory      reasons       for      applying     different

standards in the two cases.            I conclude that this court must

apply an identical standard of review in both cases and that the

standard of review is not the "presumption of constitutionality"

standard.

                                         C

    ¶137 Finally,       I      conclude       that      the     "presumption       of

constitutionality" standard of review does not apply because our

case law in voting rights cases contravenes this standard.                         No
Wisconsin court has ever applied this presumption to legislative

regulations on voting.         None of the cases cited by the majority

opinion    supporting       this   standard     of   review      relates     to   the

     The majority opinion, ¶13, distinguishes between standards
of review for facial and as-applied cases, quoting State v.
Wood, 2010 WI 17, ¶13, 323 Wis. 2d 321, 780 N.W.2d 63). Compare
Wood, 323 Wis. 2d 321, ¶15 (applying identical presumption of
constitutionality to both facial and as-applied challenges) with
Tammy W.-G. v Jacob T., 2011 WI 30, ¶¶46-48, 333 Wis. 2d 273,
797 N.W.2d 854 (citing Wood for the proposition that the
presumption applies in as-applied challenges but that "we do not
presume that the State applies statutes in a constitutional
manner").

                                       23
                                                                   No.   2012AP584.ssa


fundamental right to vote, except for NAACP, whose standard of

review is, to be charitable, confusing.41

       ¶138 Our cases addressing voting rights often do not state

a standard of review as such (as was judicial practice at the

time    the    cases   were   decided),       and    they    predate     the    federal

adoption of strict scrutiny as a judicial standard for reviewing

constitutional claims under the federal Constitution.42

       ¶139 Nevertheless,       key    principles      can    be   drawn       from    our

jurisprudence to guide our review of laws governing the right to

vote.       The essence of the cases is that courts must apply the

highest      levels    of   scrutiny   to     laws    regulating       the     right   to

vote.43




       41
            Majority op., ¶¶15-17.      See ¶¶115-136, supra.
       42
       The first case invoking the "strict scrutiny" standard in
evaluating Wisconsin constitutional rights that I can find is
Town of Vanden Broek, Outagamie Cnty. v. Reitz, 53 Wis. 2d 87,
191 N.W.2d 913 (1971).    No reported Wisconsin appellate case
since that date other than the instant case and NAACP has raised
a facial challenge to a state statute or regulation alleging
that it violates Article III of the Wisconsin Constitution.
       43
       The United States Supreme Court has similarly stated that
before the right to vote "can be restricted, the purpose of the
restriction and the assertedly overriding interests served by it
must meet close constitutional scrutiny."    Dunn v. Blumstein,
405 U.S. 330, 336 (1972) (citing Evans v. Cornman, 398 U.S. 419,
422 (1970)).

     The NAACP majority opinion at ¶22 describes its test as
applying strict scrutiny if a "severe burden" exists on the
right to vote, while the dissent in NAACP follows the language
of the Anderson/Burdick test requiring balance between any
burden on the right to vote and the state interests.    NAACP,
2014 WI 98, ¶¶100-102 (Crooks, J., dissenting).

                                         24
                                                                     No.    2012AP584.ssa


       ¶140 Because      of   the   fundamental     nature      of    the     right     to

vote, the court has recognized that the right to vote is unlike

other rights guaranteed by the Wisconsin Constitution and is

specially protected from legislative interference:

       Thus is given the right to vote a dignity not less
       than any other of many fundamental rights. So it has
       been rightly said by judicial writers: "It is a right
       which the law protects and enforces as jealously as it
       does property in chattels or lands. . . . The law
       maintains and vindicates" it "as vigorously as it does
       any right of any kind which men may have or enjoy."
       State v. Staten, 46 Tenn. 233, 241 [(1869)]. It is
       commonly referred to as a sacred right of the highest
       character and then again, at times, as a mere
       privilege, a something of such inferior nature that it
       may be made "the foot–ball of party politics." We
       subscribe to the former view, placing the right of
       suffrage upon the high plane of removal from the field
       of mere legislative material impairment.
State ex rel. McGrael v. Phelps, 144 Wis. 1, 15, 128 N.W. 1041,

1046 (1910) (emphasis added).

       ¶141 One    key     principle    in    the   case     law       is     that     the

legislature       cannot      impose   a     restriction        on     voting         that

constitutes an additional "qualification" on the right to vote.
Only     the    Wisconsin       Constitution        can    impose           additional

qualifications on the right to vote.

       ¶142 The case law has drawn a line between those laws that

create   an    "additional      qualification"      on    the    right        to     vote,

thereby impairing an otherwise qualified voter from casting a


     Furthermore, Wisconsin applies a strict scrutiny standard
of review for First Amendment challenges.   Courts have located
the federal right to vote in the First Amendment right to
freedom of speech. See Harper, 383 U.S. at 665 ("[T]he right to
vote in state elections is implicit, particularly by reason of
the First Amendment . . . .").

                                        25
                                                             No.    2012AP584.ssa


vote,    and   those    that   merely      verify    a     voter's        existing

constitutional   qualifications      without    restricting         his    or   her

existing rights.

    ¶143 This         distinction    between        impermissibly           adding

qualifications   and     verifying   existing   qualifications            appears,

for example, in two early cases, also cited by the majority

opinion,44 State ex rel. Knowlton v. Williams, 5 Wis. 308 (1856),

and State ex rel. Cothren v. Lean, 9 Wis. 254 [*279] (1859).

    ¶144 In Knowlton, an elector challenged a 30-day residency

requirement    that     restricted   the    right     to     vote     to    those

individuals who had resided in the district for 30 days prior to

election.       The    court   in    Knowlton       voided    the     residency

requirement as an additional qualification on the right to vote

beyond what the constitution required:

    We have no doubt that the qualifications of the voters
    as fixed by the act are, in respect to residence in
    the state, quite different from those prescribed in
    the constitution. The latter instrument is explicit;
    it provides in express terms that a person who
    possesses the other qualifications mentioned, and who
    has resided in the state one year next preceding any
    election, shall be deemed a qualified elector at such
    election.

            . . . .

    The constitution provides, that if a person possesses
    certain qualifications, and has resided in the state
    one year next preceding any election, he shall be
    deemed a qualified elector at such election; while the
    act of the legislature in question provides, in
    effect, that this shall not be sufficient, but that he
    shall, in addition, have resided for thirty days


    44
         Majority op., ¶¶25-32.

                                     26
                                                                   No.   2012AP584.ssa

       previous to the time when the election is holden in
       the town where he offers his vote.

       We have no doubt that the legislature have the power
       to provide that a person who has a right to vote under
       the constitution shall be allowed to exercise this
       right only in the town where he resides, because this
       would be only to prescribe the place where a right
       which he possessed under the constitution shall be
       exercised, and fixes upon the most convenient place
       for its exercise.    Such a provision does not add to
       the qualifications which the constitution requires;
       but an act of the legislature which deprives a person
       of the right to vote, although he has every
       qualification which the constitution makes necessary,
       cannot be sustained.45
       ¶145 Thus, the law fixing the location where an elector can

vote    regulated      merely   how,   where,    and   when   to    vote,     but   by

adding that the elector had to reside in the district for the

previous 30 days, the law in question restricted the rights of

those       voters   who    would    otherwise    be    qualified        under      the

Wisconsin Constitution to vote.

       ¶146 The prohibited law in Knowlton must be compared with

the law upheld in Cothren.             In Cothren, an elector challenged a

law that allowed elections officials to "challenge for cause" a
voter's qualifications.             An election official could challenge

the voter's qualifications for cause at the polls; if the voter

refused to answer the election official's questions, the vote

would not be counted.46

       ¶147 The court in Cothren approved of the "challenge for

cause" requirement as mere proof that the qualified voter indeed

possessed        the       constitutional       qualifications           to      vote,

       45
            Knowlton, 5 Wis. at 316 (emphasis added).
       46
            Cothren v. Lean, 9 Wis. 254, 258-59 [*284] (1859).

                                         27
                                                            No.   2012AP584.ssa


distinguishing       Knowlton    because        the     challenge-for-cause

procedure     in      Cothren    did      not     prescribe       additional

qualifications.       The Cothren court reasoned that the law tested

whether the constitutional qualifications for electors were met,

rather than creating new requirements.                The voter in Cothren

"failed to furnish the proof required by law, showing his right

to vote," that is, he failed to prove that he had met the

existing constitutional qualifications:

    [T]he grounds of challenge to which the sets of
    questions are adapted, imply only the qualifications
    required by the constitution; nothing further or
    different.       This   act,   therefore,    instead   of
    prescribing any qualifications for electors different
    from those provided for in the constitution, contains
    only new provisions to enable the inspectors to
    ascertain   whether   the   person   offering   to   vote
    possessed   the    qualifications   required    by   that
    instrument, and certainly it is competent for the
    legislature   to   enact   such.     The   necessity   of
    preserving the purity of the ballot box, is too
    obvious for comment, and the danger of its invasion
    too familiar to need suggestion. While, therefore, it
    is incompetent for the legislature to add any new
    qualifications for an elector, it is clearly within
    its province to require any person offering to vote,
    to furnish such proof as it deems requisite, that he
    is a qualified elector.
Cothren, 9 Wis. at 258-59 (1859) (emphasis added).

    ¶148 In        sum,   the   Cothren     law       targeted     only    the

qualifications required by the constitution.             The questions the

voters were asked were those questions necessary to ascertain

whether the voter satisfied the qualifications enumerated in the

Wisconsin Constitution: "the grounds of challenge to which the

sets of questions are adapted, imply only the qualifications



                                   28
                                                                            No.   2012AP584.ssa


required      by   the   constitution;           nothing      further       or    different."

Cothren, 9 Wis. at 258.

    ¶149 The         guiding        distinction         between        an     impermissible

additional         qualification         and      proof        of     qualification          as

elucidated by Knowlton and Cothren continued in later cases.

    ¶150 In State ex rel. Wood v. Baker, 38 Wis. 71 (1875), the

court further clarified the reasoning of Knowlton and Cothren

regarding boundaries on regulating the right to vote.                               In Baker,

the law required a voter's name be verified against an election

registry      before     the   voter       would       be    allowed    to        vote.     The

registry erroneously omitted a voter.

    ¶151 The Baker court upheld the registry law, but it put a

finer point on the distinction between prohibited "additional

legislative         qualifications"              and        permissible           legislative

requirements        of   "proof     of     the    right"      by     asserting       that   the

requirement of proof could be only "proof consistent with the

right    itself,"        i.e.,       the     proof          could     verify        only    the

constitutional qualifications of electors.                           The Baker court, 38
Wis. at 86, declared that the legislature may require reasonable

proof    of   the    right     to    vote      but     cannot       impose    "a    condition

precedent to the right" to vote.                     Being on the registry was not

a precondition to vote because the law "left other proof open to

the voter at the election consistent with his present right to

vote."    The Baker court explained:

    And such we understand to be the theory of the
    registry law . . . not to abridge or impair the right,
    but to require reasonable proof of the right. It was
    undoubtedly competent for the legislature to provide
    for a previous registry of voters, as one mode of

                                             29
                                                   No.   2012AP584.ssa

    proof of the right; so that it should not be a
    condition precedent to the right itself at the
    election, but, failing the proof of registry, left
    other proof open to the voter at the election,
    consistent with his present right (emphasis added).
    ¶152 A second key principle emerges from the case law:        "No

constitutional qualification of an elector can in the least be

abridged, added to, or altered, by legislation or the preten[s]e

of legislation.    Any such action would be necessarily absolutely

void and of no effect."47    If a law requires of a voter what is

impracticable or impossible, and makes the voter's right to vote

depend upon a condition he or she is unable to perform, the law

impermissibly abridges the constitutional right to vote and is

void:

    No registry law can be sustained which prescribes
    qualifications of an elector additional to those named
    in the constitution, and a registry law can be
    sustained only, if at all, as providing a reasonable
    mode   or   method   by   which   the   constitutional
    qualifications of an elector may be ascertained and
    determined, or as regulating reasonably the exercise
    of the constitutional right to vote at an election. If
    the mode or method, or regulations, prescribed by law
    for such purpose, and to such end, deprive a fully
    qualified elector of his right to vote at an election,
    without his fault and against his will, and require of
    him what is impracticable or impossible, and make his
    right to vote depend upon a condition which he is
    unable to perform, they are as destructive of his
    constitutional right, and make the law itself as void,
    as if it directly and arbitrarily disfranchised him
    without any pretended cause or reason, or required of
    an elector qualifications additional to those named in
    the constitution.
Dells v. Kennedy, 49 Wis. 555, 558, 6 N.W. 246 (1880) (second

emphasis added).


    47
         Dells, 49 Wis. at 557.

                                  30
                                                                          No.   2012AP584.ssa


       ¶153 As the Baker court emphasized, "[E]very one having the

constitutional qualifications then, may go to the polls, vested

with the franchise, of which no statutory condition precedent

can deprive him."48               If voters "went to the election clothed with

a constitutional right of which no statute could strip them,

without some voluntarily failure on their own part to furnish

statutory      proof         of     right,"    regulations         that     modified     the

qualifications to deprive these qualified voters of the right to

vote in those circumstances would "be monstrous."49

       ¶154 A third key principle in the case law distinguishes

between cases involving laws that impair or destroy the right to

vote, which require the most stringent judicial review, and laws

that     enhance        or   expand     the     right    to    vote,       which    receive

deference      to   the       legislature       as   long     as    the    regulation     is

reasonable.

       ¶155 If      a    legislative        regulation      enhances,       protects,     or

expands the right to vote, the inquiry into the regulation need

address only whether the regulation was "reasonable," and our
review      gives       deference      to     "legislative         discretion."50        If,

however, a legislative regulation restricts or impairs the right

to vote, then the regulation is void on its face, regardless of

state interest.
       48
            Baker, 38 Wis. at 86.
       49
            Id. at 89.
       50
       See Phelps, 144 Wis. at 18; see also State ex rel. Wood
v. Baker, 38 Wis. 71, 86 (1875) (holding that requiring some
proof of identity prior to voting existed "not to abridge or
impair the right, but to require reasonable proof of the right"
and therefore holding proof of identity as constitutional).
                                               31
                                                                      No.   2012AP584.ssa


       ¶156 This principle was stated in Dells v. Kennedy, 49 Wis.

555,    6   N.W.   246     (1880).          The   Dells   court    noted      that    the

legislature could enact reasonable and necessary regulations to

protect     the     right    to      vote,        but   that    the     legislature's

regulations       were    afforded     no    deference     if   they    impaired     the

right to vote:

       For   the   orderly   exercise    of   the   right  [to
       vote] . . . it is admitted that the legislature must
       prescribe necessary regulations as to the places, mode
       and manner, and whatever else may be required to
       insure its full and free exercise. But this duty and
       right inherently imply that such regulations are to be
       subordinate to the enjoyment of the right, the
       exercise of which is regulated. The right must not be
       impaired by the regulation.      It must be regulation
       purely, not destruction.        If this were not an
       immutable principle, elements essential to the right
       itself might be invaded, frittered away, or entirely
       exscinded, under the name or preten[s]e of regulation,
       and thus would the natural order of things be
       subverted by making the principle subordinate to the
       accessory. To state is to prove this position. As a
       corollary of this, no constitutional qualification of
       an elector can in the least be abridged, added to, or
       altered,   by   legislation   or   the   preten[s]e  of
       legislation.   Any such action would be necessarily
       absolutely void and of no effect.
Dells, 49 Wis. at 557.

       ¶157 This principle was further elucidated in State ex rel.

McGrael v. Phelps, 144 Wis. 1, 128 N.W. 1041 (1910).                        The Phelps

court   recognized        that   the   legislature        is    afforded     a    certain

amount of deference by the judiciary when the legislature uses

the police power to enact reasonable regulations upon voting.

If, however, the regulation impairs the exercise of the right to

vote    rather     than    improves     it,       the   regulation     is    no   longer
subject to deference and is instead unconstitutional:

                                             32
                                                                             No.    2012AP584.ssa

       Regulation which impairs or destroys rather than
       preserves and promotes, is within condemnation of
       constitutional guarantees. So it follows that, if the
       law in question trespasses upon the forbidden field,
       it is only law in form.
State v. Phelps, 144 Wis. 1, 18 (1910).

       ¶158 A final principle from our case law recognizes that

because,          as   a     practical       matter,       government        must       regulate

elections so that they are orderly, fair, and honest, and that

such    regulations           will      invariably         impose     some     burdens        upon

individual voters, the legislature has the power to say how,

when,       and    where     a    qualified      elector      may   vote,         but   may   not

regulate who may vote.                     The who is governed by the Wisconsin

Constitution.

       ¶159 In State ex rel. Frederick v. Zimmerman, 254 Wis. 600,

37   N.W.2d 472            (1949),    the    court      explained      the        legislature's

power as follows:

       It is true that the right of a qualified elector to
       cast his ballot for the person of his choice cannot be
       destroyed or substantially impaired. However, the
       legislature has the constitutional power to say how,
       when and where his ballot shall be cast for a justice
       of the supreme court.
Frederick, 254 Wis. at 613-14 (emphasis added).

       ¶160 The legislature cannot, however, under the guise of

regulating how, when, and where a ballot may be cast, destroy or

substantially            impair      the    right     to    vote.51          No    matter     how

reasonable         the      law   and      how   much      deference     the        legislature

receives, "[a]ll these laws were subject to the rule of law that


       51
       State ex rel. Frederick v. Zimmerman, 254 Wis. 600, 613,
37 N.W.2d 472 (1949).

                                                 33
                                                                             No.    2012AP584.ssa


an    elector        has    the    right      to    cast      his   [or    her]     ballot     for

whomsoever he [or she] chooses and cannot constitutionally be

deprived of it."52

       ¶161 The        essence          of    the       voting      rights     jurisprudence

interpreting          and   applying         the    Wisconsin       Constitution          is   that

courts        must    apply       the    highest        level       of    scrutiny     to      laws

regulating the right to vote.

                                                III

       ¶162 Applying the highest level of scrutiny and applying

the key principles derived from our voting rights case law, I

conclude that Act 23 is unconstitutional.

       ¶163 The        force      of    the    Wisconsin         Constitution        is     clear:

"[E]very one having the constitutional qualifications [at the

time     of     election]         may    go    to       the   polls,       vested     with     the

franchise, of which no statutory condition precedent can deprive

him [or her][, b]ecause the constitution makes him [or her], by

force of his [or her] present qualifications, 'a qualified voter

at such election.'"               Baker, 38 Wis. at 86.
       ¶164 Under Act 23, a voter qualified under the Wisconsin

Constitution——that is, a person who is over the age of 18, is a

United States citizen, and is a resident of Wisconsin——and who

has    met      the    registration           requirements           under    the     Wisconsin

statutes cannot vote even if he or she comes to the polls with

extensive personal photo identification information.                                      Only an

Act 23 photo ID suffices.                     This requirement strips a qualified

registered voter of the right to vote.

       52
            Id. at 618.

                                                   34
                                                                               No.       2012AP584.ssa


      ¶165 The          legislature     does     not       have     the    power          under      the

guise of an election regulation to strip a qualified, registered

voter of the right to vote.53                   Act 23 deprives a person of the

right to vote even though that person meets the constitutional

qualifications to vote and is therefore unconstitutional.

      ¶166 I       agree      with   the       League       of    Women     Voters            and    the

circuit         court     that   Act       23    impermissibly              adds          a    fourth

qualification for voting in addition to the three specified in

the   Wisconsin         Constitution.           The        fourth       qualification               is   a

legislatively           specified      photo         ID.          Act     23     deprives            all

qualified, registered voters who do not possess an Act 23 photo

ID from exercising the right to vote.                            The legislature has thus

rendered an Act 23 photo ID in and of itself a qualification for

voting.54

      ¶167 The State may seek verification of a voter's identity,

but the verification must be limited to "proof consistent with

the right itself."55             Act 23 does not merely verify a voter's

identity.         Rather, Act 23 creates a precondition to vote.                                         In
order      to    cast     a   ballot,      a    voter       must        obtain       a     specified

government photo ID.


      53
           Baker, 38 Wis. at 89.
      54
       Act 23 does not fall into any of the five areas of law in
which Article III, Section 2 of the Wisconsin Constitution
authorizes the legislature to enact laws.     It does not define
residency. It does not provide for registration of voters. It
does not provide for absentee voting. It does not exclude from
suffrage persons convicted of a felony or adjudged incompetent.
It does not extend the right of suffrage to additional classes.
      55
           See Baker, 38 Wis. at 86.

                                                35
                                                             No.   2012AP584.ssa


      ¶168 To obtain an Act 23 photo ID, the voter must verify

his   or   her   identity   with   additional    documentation.56           These
      56
       Wisconsin Admin. Code § Trans 102.15(4)(a) (Feb. 2013)
allows one of the following as satisfactory proof of identity to
obtain a photo ID:

      (a) A supporting document identifying the person by
      name   and    bearing     the   person's   signature,    a
      reproduction    of   the    person's   signature,   or   a
      photograph   of    the   person.   Acceptable   supporting
      documents include:

      2. A valid operator's license, including a license
      from another jurisdiction, except a province of the
      Dominion of Canada, bearing a photograph of the
      person;

      Note:   Temporary    driving   receipts    from    other
      jurisdictions    are     not    acceptable.     "Another
      jurisdiction" is defined at s. 340.01 (41m), Stats.

      3. Military discharge papers (including certified copy
      of federal form DD-214);

      4.   A   U.S.   government          and    military     dependent
      identification card;

      5. A valid photo identification card issued by
      Wisconsin or another jurisdiction, except a province
      of the Dominion of Canada, bearing a photograph of the
      person;

      11. A marriage certificate            or   certified     copy    of
      judgment of divorce;

      Note: A testament to the marriage document does not
      satisfy this requirement.

      13. A social security         card    issued   by     the    social
      security administration;

      Note: Metal or other duplicate Social Security Cards
      are not acceptable.

      23. Any document permitted under sub. (3)(a), if it
      bears a photograph of the person and was not used as
      proof of name and date of birth.

                                     36
                                                                            No.    2012AP584.ssa


documents sufficiently provide proof of identity to receive an

Act 23 photo ID.

      ¶169 Yet      these        documents,     all     of    which           verify     one's

identity for the purposes of obtaining an Act 23 photo ID, are

not acceptable under Act 23 to prove identity for the purposes

of voting.    By restricting verification of identity to specified

government-issued photo IDs, Act 23 does not condition the right

to vote on verification of identity.                  Instead, Act 23 conditions

the right to vote on production of a particular identity card.

Requiring     a     specific         identity         card        is        an     additional

qualification      on      the     right   to   vote,        and       it     is     therefore

impermissible under the Wisconsin Constitution.

      ¶170 The mandatory precondition to voting of presenting an

Act   23   photo    ID    is     imposed   on   all    voters          who       have   already

established        their         qualifications        to     vote            through       the

registration process.             No connection exists between the Act 23

voter ID requirement and a voter's constitutional qualifications

to vote.
      ¶171 Unlike        constitutionally       permissible            verifications         of

voter identity, which enable a fully qualified voter to vote by

providing various forms of proof of identity, Act 23 has no such




      Note: This permits a person to                        use    two separate
      documents   under   sub.   (3)(a)                     to     satisfy  the
      requirements of subs. (3) and (4).

      24. Department of homeland security/transportation
      security    administration transportation   worker
      identification credential.

                                           37
                                                                 No.   2012AP584.ssa


fail-safe provision.57         The only way a voter can exercise the

right to vote under Act 23 is to display the requisite ID.

      ¶172 If       the   qualified   voter     cannot     obtain,       loses,   or

forgets to bring an Act 23 voter ID, Act 23 strips a qualified

voter of the right to vote, even though the ID required by Act

23 is mentioned nowhere in the Constitution.                    "[A]n act of the

legislature     which     deprives    a    person   of    the   right     to   vote,

although he has every qualification which the constitution makes

necessary, cannot be sustained."58

      ¶173 Act 23 in effect amends the Wisconsin Constitution to

add   a    fourth   voter   qualification,     an   Act    23    photo    ID   card,

without complying with the constitutional provisions governing

amendment of the Wisconsin Constitution.59                This the legislature

cannot do.



      57
       In State ex rel. Wood v. Baker, 38 Wis. 71, 86-87 (1875),
the legislation provided for a fail-safe mechanism. A qualified
voter who failed to appear on the election registry could
nonetheless furnish proof of his right to vote. "[P]roof of the
right [to vote] . . . should not be a condition precedent to the
right itself at the election, but failing the proof of registry
[the legislature] left other proof open to the voter at the
election, consistent with his present right."

     In contrast with Act 23, in Michigan, a voter who does not
have adequate photo identification is not required to incur the
costs of obtaining photo identification as a condition of
voting. The Michigan voter may simply sign an affidavit in the
presence of an election inspector and does not incur any costs
in the execution of an affidavit.    In re Request for Advisory
Opinion   Regarding  Constitutionality  of  2005  AP   71,  740
N.W.2d 444 (Mich. 2007).
      58
           Knowlton, 5 Wis. at 316.
      59
           Wis. Const. art. XII, §§ 1-2.

                                          38
                                                                       No.    2012AP584.ssa


       ¶174 Furthermore,           Act      23        violates        key      principles

established in Wisconsin case law for review of a law regulating

voting.

       ¶175 Act      23    does    not   preserve,           promote    or     enhance      a

qualified      voter's     right    to   vote;        it    impairs    or     destroys      a

qualified voter's constitutional right to vote by requiring a

specific      form   of    voter    photo      identification.60              It    imposes

significant       burdens     of     direct       and       indirect        costs    on     a

constitutionally qualified voter to acquire the photo ID, as

Justice Crooks explains in his dissent in NAACP, thus severely

and significantly impairing the right of a qualified voter to

cast    a    ballot.61      "The    right      must        not   be   impaired      by    the

regulation.       It must be regulation purely, not destruction."62

       ¶176 Act 23 abridges, adds to, or alters the constitutional

qualifications of electors.              As a result of Act 23, qualified

voters are barred from voting through no fault of their own.63

It is clear on the face of Act 23 that some voters will be asked

to     perform       "impracticable          or        impossible           conditions."64
"[L]egislation        on    the    subject       of    elections       is     within      the

constitutional power of the Legislature so long as it merely


       60
            See Phelps, 144 Wis. at 18.
       61
            NAACP, 2014 WI 98, ¶¶117-132 (Crooks, J., dissenting).
       62
            See Dells, 49 Wis. at 557.
       63
       "It would be a fraud on the constitution to hold
[qualified electors] disenfranchised without notice or fault."
Baker, 38 Wis. at 89.
       64
            See Dells, 49 Wis. at 557.

                                          39
                                                                   No.   2012AP584.ssa


regulates the exercise of the elective franchise, and does not

deny the franchise itself either directly or by rendering its

exercise     so   difficult     and    inconvenient     as    to     amount     to    a

denial."65

     ¶177 Act 23 does not regulate how, when, and where a voter

casts his or vote.66          By creating the strict requirement that

voters without an Act 23 photo ID "shall not be permitted to

vote," the legislature has restricted the franchise to a limited

group of individuals——those individuals who can present an Act

23 photo ID.       Thus Act 23 regulates who is qualified to vote,

adding a fourth qualification for voters to meet.

     ¶178 For      these      reasons,    I     conclude     that        Act   23    is

unconstitutional on its face.

                                      * * * *

     ¶179 Our State has long recognized that the right to vote

is the highest of rights and has enshrined the right in our own

constitution.       It   is    the    right   upon   which   all     other     rights

depend in a democratic society, and our court has consistently
defended and protected that right above all others.

     ¶180 As a result of Act 23, a qualified registered voter,

with all the proof of his or her qualifications and identity,

can no longer be assured of the right to vote.                      Act 23 adds a

new qualification for voters, repugnant to our constitution and


     65
       State ex rel. Van Alstine v. Frear, 142 Wis. 320, 341,
125 N.W. 961 (1910) (allowing legislative enactment of primary
election ballot procedures).
     66
          See Frederick, 254 Wis. at 613.

                                         40
                                                                   No.   2012AP584.ssa


"monstrous" to those qualified voters denied the right to vote

through no fault of their own.67

     ¶181 For       many,    including        our    friends,      neighbors,     and

relatives, Act 23 imposes a precondition to voting that deprives

qualified voters of the right to vote.                  Such a precondition is

unconstitutional.           "[E]very     one        having   the    constitutional

qualifications      then,    may   go    to    the    polls,    vested     with   the

franchise, of which no statutory condition precedent can deprive

him."68

     ¶182 For the foregoing reasons, I dissent.

     ¶183 I    am    authorized     to    state       that   Justice     ANN    WALSH

BRADLEY joins this dissent.




     67
       See Baker, 38 Wis. at 89:   "It would be a fraud on the
constitution to hold [a voter whose name was not in the
registry] disfranchised without notice or fault. . . . And it
would be monstrous in us to give such an effect to the registry
law, against its own spirit and in violation of the letter and
spirit of the constitution."
     68
          Baker, 38 Wis. at 86

                                         41
    No.   2012AP584.ssa




1
