                                                                     2014 WI 98

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2012AP1652
COMPLETE TITLE:         Milwaukee Branch of the NAACP, Voces de La
                        Frontera, Ricky
                        T. Lewis, Jennifer T. Platt, John J. Wolfe,
                        Carolyn
                        Anderson, Ndidi Brownlee, Anthony Fumbanks,
                        Johnnie M.
                        Garland, Danettea Lane, Mary McClintock, Alfonso
                        G.
                        Rodriguez, Joel Torres and Antonio K. Williams,
                                   Plaintiffs-Respondents,
                             v.
                        Scott Walker, Thomas Barland, Gerald C. Nichol,
                        Michael
                        Brennan, Thomas Cane, David G. Deininger and
                        Timothy Vocke,
                                   Defendants-Appellants,
                        Doris Janis, James Janis and Matthew Augustine,
                                   Intervenors-Co-Appellants.



                               ON BYPASS FROM THE COURT OF APPEALS

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

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Dane
   JUDGE:               David T. Flanagan III

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


ATTORNEYS:
       For      the    defendants-appellants,    the   cause   was   argued   by
Clayton P. Kawski, assistant attorney general, with whom on the
briefs (in the court of appeals) was Thomas C. Bellavia, Carrie
M. Benedon, and Maria S. Lazar, assistant attorneys general; and
J.B. Van Hollen, attorney general.
    For the intervenors-co-appellants, the cause was argued by
Michael T. Morley, Washington D.C.; with whom on the briefs (in
the court of appeals) was Joseph Louis Olson and Michael Best &
Friedrich LLP, Milwaukee.


    For   the   plaintiffs-respondents,            the   cause     was   argued   by
Richard Saks, with whom on the brief (in the court of appeals)
was B. Michele Sumara, and Hawks Quindel, S.C., Milwaukee.


    An amicus curiae brief (in the court of appeals) was filed
by Helen Marks Dicks and AARP Wisconsin, Madison; and Daniel B.
Kohrman   and   AARP   Foundation    Litigation,         Washington,     D.C.,    on
behalf of AARP.


    An amicus curiae brief (in the court of appeals) was filed
by Jennifer A. Lohr, Madison, on behalf of Disability Rights
Wisconsin.


    An amicus curiae brief (in the court of appeals) was filed
by Rebecca K. Mason and Rebecca Mason Law LLC, Racine, on behalf
of Institute for One Wisconsin, Inc.


    An     amicus      curiae     brief      was     filed    by     Kristin      M.
Kerschensteiner,       Madison,    on       behalf    of     Disability     Rights
Wisconsin.




                                        2
                                                                                 2014 WI 98
                                                                        NOTICE
                                                          This opinion is subject to further
                                                          editing and modification.   The final
                                                          version will appear in the bound
                                                          volume of the official reports.
No.        2012AP1652
(L.C. No.      2011CV5492)

STATE OF WISCONSIN                                    :            IN SUPREME COURT

Milwaukee Branch of the NAACP, Voces de la
Frontera, Ricky T. Lewis, Jennifer T. Platt,
John J. Wolfe, Carolyn Anderson, Ndidi
Brownlee, Anthony Fumbanks, Johnnie M. Garland,
Danettea Lane, Mary McClintock, Alfonso G.
Rodriguez, Joel Torres and Antonio K. Williams,

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

                Defendants-Appellants,

Doris Janis, James Janis and Matthew Augustine,

                Intervenors-Co-Appellants.




       APPEAL      from      a    circuit     court       judgment       and     permanent

injunction.             Judgment       reversed;      permanent          and     temporary

injunctions vacated.



       ¶1       PATIENCE     DRAKE     ROGGENSACK,        J.     This     appeal      arises

from       a   judgment    of    the   Dane   County       Circuit      Court1     granting
       1
           The Honorable David T. Flanagan, III presided.
                                                                  No.   2012AP1652



declaratory and injunctive relief based on the circuit court's

conclusion   that   2011    Wis.   Act     23,     Wisconsin's      voter    photo

identification act, violates the Wisconsin Constitution.

    ¶2     Plaintiffs      challenge       Act     23    under    Article     III,

Section 1 of the Wisconsin Constitution.2                They contend that the

law is invalid because "it would severely burden a significant

number of qualified voters but [is] not reasonably necess[ary]

or designed to deter fraud or otherwise effect an important

government   interest."       Plaintiffs         identify    burdens    of   time,

inconvenience and costs associated with Act 23.                  Emphasizing the

difficulties   that     facial     challenges           to   a   statute     bear,

defendants contend plaintiffs have not shown that Act 23 is

anything more than a reasonable, election-related regulation or

that the law's requirements amount to a denial of the right to

vote.

    2
        Article III, Section 1 provides:

         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.

     In their complaint, plaintiffs alleged that Act 23 also
violated Article I, Section 1 of the Wisconsin Constitution,
which guarantees equal protection and due process under the law
in a manner similar to the Fourteenth Amendment to the United
States Constitution.   In their brief to us, plaintiffs refer
only to Article III, Section 1 of the Wisconsin Constitution.
However, they also contend that there is "a single standard to
apply to all challenges to restrictive voting laws, whether
brought as equal protection and due process challenges or under
the fundamental right to vote," and their arguments are in most
respects consistent with arguments made in due process and equal
protection challenges.

                                       2
                                                                              No.    2012AP1652



       ¶3      We conclude that plaintiffs have failed to prove Act

23 unconstitutional beyond a reasonable doubt.                                In League of

Women Voters of Wisconsin Education Network, Inc. v. Walker,

2014 WI 97, __ Wis. 2d __, __ N.W.2d __, also released today, we

concluded that requiring an elector to present Act 23-acceptable

photo    identification    in     order       to    vote     is    not    an        additional

elector     qualification.        Id.,    ¶__.          In   the    present          case,   we

conclude that the burdens of time and inconvenience associated

with obtaining Act 23-acceptable photo identification are not

undue burdens on the right to vote and do not render the law

invalid.

       ¶4      We conclude, as did the United Stated Supreme Court in

Crawford v. Marion County Election Board, 553 U.S. 181 (2008),

that    "the    inconvenience     of   making       a   trip      to     [a    state    motor

vehicle office], gathering the required documents, and posing

for a photograph surely does not qualify as a substantial burden

on   the    right   to   vote."        Id.     at    198.          Furthermore,          photo

identification is a condition of our times where more and more
personal interactions are being modernized to require proof of

identity with a specified type of photo identification.                                   With

respect to these familiar burdens, which accompany many of our

everyday tasks, we conclude that Act 23 does not constitute an

undue burden on the right to vote.                       Payment to a government

agency, however, is another story.

       ¶5      Act 23 provides that the Department of Transportation

(DOT) "may not charge a fee to an applicant for the initial
issuance, renewal, or reinstatement of an identification card"
                                          3
                                                                     No.     2012AP1652



when "the applicant requests that the identification card be

provided without charge for purposes of voting."                           Wis. Stat.

§ 343.50(5)(a)3.     (2011-12).3          On   its     face,       then,     the   law

prohibits    a   government    or   its    agencies         from    requiring      any

elector, rich or poor, to pay a fee as a condition to obtaining

a DOT photo identification card to vote.4                  See Harper v. Va. Bd.

of Elections, 383 U.S. 663, 666 (1966) ("payment of any fee [may

not be] an electoral standard").                The mandate of Act 23 is

consistent with the Wisconsin tradition of "jealously guard[ing]

and protect[ing]" the fundamental right to vote.                     See State ex

rel. Frederick v. Zimmerman, 254 Wis. 600, 613, 37 N.W.2d 473

(1949).

     ¶6     Plaintiffs   produced    evidence         at    trial   that,     in   the

course of obtaining a DOT photo identification card for voting,

government    agencies   charged     them      fees    to     obtain       supporting

documents for their applications.              A common example is a birth

certificate, which is satisfactory proof of name, date of birth

and citizenship, and can cost $20 to obtain.                   E.g., Wis. Stat.
§ 69.22(1)(a) and (c).        The requirement for such documents arose

under    Wisconsin   administrative       rules      that    implement       Act   23.

E.g., Wis. Admin. Code § Trans 102.15(3)(a).

     3
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
     4
       We address only the financial burden incurred while
obtaining a DOT photo identification card for voting, see Wis.
Stat. § 343.50, because the other forms of Act 23-acceptable
identification are required for purposes other than voting,
e.g., driver licenses are required to lawfully drive a vehicle.

                                      4
                                                                           No.       2012AP1652



       ¶7      In order to resolve the conflict between Act 23 and

Wis.       Admin.     Code     § Trans        102.15(3)(a),         we    interpret             the

administrative         rules     and    explain      that    the    discretion            of    the

Division       of     Motor     Vehicles        (DMV)       administrators           must        be

exercised       in     a    constitutionally             sufficient      manner.               Such

exercise       of    discretion        requires      the     issuance      of       DOT    photo

identification cards for voting without requiring documents for

which an elector must pay a fee to a government agency.5                                        See

Wis.       Admin.    Code      § Trans    102.15(3)(b)            and    (c)    (permitting

issuance of DOT photo identification cards for voting without

the    documents           described     in        § Trans    102.15(3)(a)).                    Our

conclusion           employs      a      saving          construction          of         § Trans

102.15(3)(b), conforms to Act 23's mandate and relieves a severe

burden on the right to vote that would otherwise exist.                               Because

with a saving construction of § Trans 102.15(3)(b) Act 23 does

not    place    a     severe    burden     on      the    right    to    vote,       we    apply

rational basis scrutiny and conclude that Act 23 is reasonably

related to the State's significant interests.


       5
       Put simply, the right to vote cannot require payment to a
government or its agencies.   This includes, of course, a "poll
tax," where a government directly requires and itself collects a
payment in order to vote.   See Harper v. Va. Bd. of Elections,
383 U.S. 663 (1966).    It also includes, however, fees that a
government agency other than a Wisconsin agency may charge for
documents necessary to obtain a DOT photo identification card
for voting.     We cannot require other governments or their
agencies to refrain from charging such fees.    We can, however,
explain that in order to constitutionally administer Act 23, the
DMV may not require documents in order to issue a DOT photo
identification card for voting that require payment of a fee to
any government agency.

                                               5
                                                                                 No.     2012AP1652



      ¶8      We have been mindful that the task before us is not to

determine      whether       "Act    23       is    the      best    way    to     preserve    and

promote the right to vote."                    League of Women Voters, __ Wis. 2d

__, ¶55.       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).

      ¶9      Instead,         we         apply           judicial           restraint         and

constitutional principles to the case at hand.                               Accordingly, we

reverse      the    judgment        of    the       circuit         court    and    vacate     the

injunctions the circuit court issued.

                                     I.       BACKGROUND

                                         A.     Parties

      ¶10     Plaintiffs       are       the       Milwaukee        Branch    of    the    NAACP,

Voces de la Frontera and numerous individuals residing either in

Milwaukee County or in Polk County.                          The NAACP, an incorporated

association with its business address in the City of Milwaukee,

contends that "Act 23 will force the Milwaukee Branch of the
NAACP   to    divert        substantial            resources        away    from    traditional

voter registration and voter turnout efforts in order to educate

and   assist       voters    in     procuring          Act    23-acceptable            photo   ID."

NAACP alleges that Act 23 unconstitutionally burdens Wisconsin

African-American residents' right to vote.

      ¶11     Voces    is     Wisconsin's              preeminent       immigration        rights

organization.         It expresses strong concerns about the burden Act

23 will place on the Latino community and its members as they
seek to exercise their franchise.                         Voces alleges that "Act 23
                                                   6
                                                                              No.    2012AP1652



will    force    Voces       to    divert       substantial          resources      away   from

traditional      voter       registration            and   voter      turnout      efforts   in

order     to    educate      and     assist          voters     in    procuring      Act     23-

acceptable photo ID."

                                          B.     Act 23

       ¶12     Act    23,    with     a        few    limited        exceptions,     requires

electors to identify themselves by presenting Act 23-acceptable

photo identification in order to vote.                          Stated generally, these

include:         DOT     issued      driver's           license;       DOT    issued       photo

identification card; an unexpired DOT photo identification card

receipt; 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 citation or notice of driver's license suspension.

Wis. Stat. § 5.02(6m).              Our review focuses on the second form of

acceptable identification, which we refer to as a DOT photo
identification card for voting.                      See Wis. Stat. § 343.50.

       ¶13     The    DMV    is    the     division        of   the     DOT    charged     with

issuing DOT photo identification cards for voting spoken to in

Act 23.        DOT administrative rules governing DMV's process for

issuing these cards require an applicant to document name, birth

date, identity, residence and citizenship.                              A social security

card     and    numerous      other       documents           are    proof    of    identity.

Wisconsin Admin. Code § Trans 102.15(4)(a)13.                            An applicant may
prove residence by items such as a utility bill, paycheck stub
                                                 7
                                                                                No.     2012AP1652



or   similar         document     that    shows       name       and    address.         § Trans

102.15(4m).

      ¶14       A certified copy or an original birth certificate is

satisfactory proof of name, date of birth and citizenship.                                    Wis.

Admin.     Code        § Trans    102.15(3)(a).              Wisconsin         Stat.     § 69.21

describes        how    to    obtain     vital        records,         including       certified

copies     of    birth       certificates,          for    those       applicants       born    in

Wisconsin.           Wisconsin        Stat.    § 69.22(1)(a)            and    (c)     permit    a

government agency to assess a $20 fee for a certified copy of a

birth     certificate.6           Other       states      presumably          have    their    own

procedures, which may similarly allow a government agency to

charge a fee.

                                 C.   Procedural History

      ¶15       On     March 6,       2012,     the       circuit       court        temporarily

enjoined the enforcement of Act 23.                         On April 16-19, April 30,

and May 4, 2012, the court conducted a bench trial.                                   During the

trial,     plaintiffs         testified        about       the    burdens       of     time    and

inconvenience           of    going      to    DMV        offices       to     obtain     Act-23
acceptable identification.                They also testified about the cost

of documents the DMV requires in order to issue a DOT photo

identification card for voting.                     These costs included payment to


      6
       Wisconsin Stat. § 69.22(6) provides that the "register of
deeds may provide free searches and free copies [of vital
records] to agencies in his or her county at the direction of
the county board."   However, there is no mention in § 69.22 of
providing free certified copies of birth certificates or other
vital records that have been required to obtain DOT photo
identification cards to vote.

                                                8
                                                                         No.       2012AP1652



government agencies in various states, including Wisconsin, to

secure a certified copy of a birth certificate.

    ¶16       On July 17, 2012, the circuit court declared Act 23's

photo identification requirements unconstitutional, and granted

permanent injunctive relief.                The circuit court reasoned that

"[t]he cost and the difficulty of obtaining documents necessary

to apply for a DMV Photo ID is a significant burden upon the

opportunity         of    Wisconsin      citizens      to   vote."         It       further

concluded      that        these      burdens     "constitute        a     substantial

impairment of the right to vote" and are therefore "inconsistent

with,   and    in        violation    of   Article     III,   Section          1    of    the

Wisconsin Constitution."

    ¶17       The    circuit     court     made   extensive    findings            of    fact.

For example, the court found that 80 percent of Wisconsin voters

had a DOT-issued driver's license, which is an Act 23-acceptable

identification,          but   that   there     were   potentially       thousands          of

otherwise qualified voters who currently lack Act 23-acceptable

identification.           The court made no finding of how many of those
otherwise qualified voters could not obtain Act 23-acceptable

identification.           The court found that two electors, Ruthelle R.

Frank and Ricky T. Lewis, had not secured photo identification

cards due to problems in obtaining corrected birth certificates.

The court also found that obtaining a certified copy of a birth

certificate required payment to a government agency.

    ¶18       On November 20, 2013, after briefing was completed in

the court of appeals and pursuant to Wis. Stat. § 809.61 and


                                            9
                                                            No.    2012AP1652



Wis. Const. Art. VII, § 3(3), we took jurisdiction of the appeal

on our own motion.7

                          II.     DISCUSSION

      ¶19   Plaintiffs bring a facial challenge to Act 23 under

the Wisconsin Constitution, arguing that the time, inconvenience

and   costs   incurred   in    obtaining       Act   23-acceptable      photo

identification    impermissibly    burden       their    right    to    vote.


      7
       We note that the District Court for the Eastern District
of Wisconsin declared that Act 23 violated the federal
constitution in Frank v. Walker, Nos. 11CV1128 and 12CV185, 2014
WL 1775432 (E.D. Wis. Apr. 29, 2014). The court did so knowing
that the question of whether the voter identification law is
constitutional was before us.   Id. at *42 n.1.    Federal court
interpretation of a state statute prior to precedential state
court interpretation is most unusual because if a saving
construction by the state court is possible, then facial
invalidation of the statute is inappropriate.        See, e.g.,
Harrison v. NAACP, 360 U.S. 167, 176 (1959) (concluding that "no
principle has found more consistent or clear expression than
that    the   federal   courts   should   not   adjudicate   the
constitutionality    of  state   enactments   fairly   open   to
interpretation until the state courts have been afforded a
reasonable opportunity to pass upon them").    This is known as
"Pullman abstention."   See R.R. Comm'n of Tex. v. Pullman Co.,
312 U.S. 496, 499-500 (1941).

      Pullman abstention requires federal courts to abstain
      from deciding an unclear area of state law that raises
      constitutional     issues     because     state   court
      clarification   might   serve   to    avoid   a federal
      constitutional ruling. . . . [F]ederal courts should
      retain jurisdiction over the case, but stay the
      proceedings so that state courts can rule on the state
      law question. If the state court fails to resolve the
      issue, however, the parties may then return to federal
      court for a ruling on the constitutional issue.

Nivens v. Gilchrist,     444    F.3d    237,    245-46   (4th    Cir.   2006)
(citation omitted).

                                   10
                                                                              No.     2012AP1652



Plaintiffs do not assert that the actual presentation of photo

identification            violates    their     constitutional             right    to        vote.

Therefore, their challenge is made on a different legal basis

than that of the plaintiffs in League of Women Voters.

       ¶20     Defendants       maintain       that      Act    23    is     constitutional.

They argue that the burdens imposed on electors to obtain a DOT

photo    identification          card    are       minimal      when       compared      to     the

State's      significant        interest      in       protecting      the    integrity         and

reliability         of    the   electoral      process,         in    maintaining         public

confidence          in     election     results          and     in       preventing          voter

impersonation fraud.

                                A.    Standard of Review

       ¶21     Plaintiffs bring a facial challenge to Act 23.                                     A

facial       challenge      presents    a     question         of    law    that    we    review

independently,            but   benefitting         from       the    discussion         of     the

circuit court.             Custodian of Records for the Legislative Tech.

Servs. Bureau v. State, 2004 WI 65, ¶6, 272 Wis. 2d 208, 680

N.W.2d 792; State v. Wood, 2010 WI 17, ¶15, 323 Wis. 2d 321, 780
N.W.2d 63.          Because this appeal follows a trial to the circuit

court, we will uphold that court's historic findings of fact

unless they are clearly erroneous.                       State v. Arias, 2008 WI 84,

¶12, 311 Wis. 2d 358, 752 N.W.2d 748.

       ¶22     If    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.          See Wagner v. Milwaukee Cnty. Election Comm'n, 2003
                                              11
                                                                                   No.    2012AP1652



WI 103, ¶77, 263 Wis. 2d 709, 666 N.W.2d 816; see also Milwaukee

Cnty. v. Mary F.-R., 2013 WI 92, ¶35, 351 Wis. 2d 273, 839

N.W.2d 581.         On the other hand, if we conclude that the burden

on the electors' right to vote is not severe, the legislation

will be presumed valid, and we will apply a rational basis level

of   judicial       scrutiny          in    determining            whether      the   statute     is

constitutional.           Mary F.-R., 351 Wis. 2d 273, ¶35.

                          B.    Challenge to Act 23 Burdens

                               1.   Foundational principles

       ¶23    Without question, the right to vote is a fundamental

right and in many respects, it is protective of other rights.

Frederick, 254 Wis. at 613; Clingman v. Beaver, 544 U.S. 581,

599 (2005).          As Justice Brennan explained so long ago, "the

right to vote is 'a fundamental political right, because [it is]

preservative of all [other] rights.'"                             Storer v. Brown, 415 U.S.

724, 756 (1974) (Brennan, J., dissenting) (quoting Yick Wo v.

Hopkins, 118 U.S. 356, 370 (1886)).

       ¶24    Foundational legal principles are our starting point
when fundamental rights are at issue.                                One such principle is

that   generally,          statutes         are    presumed         to     be     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

constitutional claim at issue.                      See League of Women Voters, 2014

WI 97, ¶16, __ Wis. 2d __.                   The presumption of constitutionality

is   based     on    the       court's       respect         for    a    co-equal        branch    of
government,         and    it       is     meant        to    promote      due     deference       to
                                                   12
                                                                                No.   2012AP1652



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.                                In addition,

given a choice of reasonable interpretations of a statute, we

must           select     the             interpretation           that         results      in

constitutionality.            Am. Family Mut. Ins. Co. v. DOR, 222 Wis. 2d

650, 667, 586 N.W.2d 872 (1998).

         ¶25    One who challenges a statute on constitutional grounds

has a very heavy burden to overcome.                          Dowhower v. W. Bend Mut.

Ins. Co., 2000 WI 73, ¶10, 236 Wis. 2d 113, 613 N.W.2d 557.                                   To

succeed,         the    challenger          must      prove     that      the     statute    is

unconstitutional beyond a reasonable doubt.                            State v. Cole, 2003

WI 112, ¶11, 264 Wis. 2d 520, 665 N.W.2 328.                              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.                     Furthermore, courts

must resolve any doubt about the constitutionality of a statute

in favor of upholding the statute.                      Monroe Cnty. Dep't of Human

Servs. v. Kelli B., 2004 WI 48, ¶16, 271 Wis. 2d 51, 678 N.W.2d

831.

                                      2.     Voter rights

         ¶26    When    courts       approach      constitutional          challenges       that

allege a burden on the right to vote, we focus first on how the
right is burdened.               The analysis by which we do so is more
                                                 13
                                                                             No.    2012AP1652



nuanced than that set out above.                     Decisions of the United States

Supreme      Court,    as   well    as     our       own    decisions      that    relate   to

voting,      provide    discussions             helpful      to      determining     how     to

structure      our    examination         of    the    plaintiffs'         claims    and    the

circuit court's conclusions.

       ¶27    For example, in Anderson v. Celebrezze, 460 U.S. 780

(1983), the Supreme Court examined whether an Ohio statute's

requirement that an independent candidate for President file his

statement of candidacy and nominating petition more than five

months before party candidates were required to file, placed an

unconstitutional burden on voting and associational rights of

the    candidate's      supporters             under       the     First   and     Fourteenth

Amendments.      Id. at 786 n.7, 790-91.

       ¶28    The Supreme Court began by noting that "as a practical

matter, there must be a substantial regulation of elections if

they are to be fair and honest and if some sort of order, rather

than chaos, is to accompany the democratic processes."                                Id. at

788 (quoting Storer, 415 U.S. at 730).                           The Court then explained
that   voter    regulation         laws    "inevitably            affect[]——at      least    to

some degree——the individual's right to vote and his right to

associate with others for political ends.                              Nevertheless, the

State's important regulatory interests are generally sufficient

to justify reasonable, nondiscriminatory restrictions."                              Id.

       ¶29    The Court said that there was no "litmus-paper test"

that can separate valid from invalid voting regulations.                              Id. at

789.    Instead, a court must first consider "the character and
magnitude of the asserted injury to the rights protected by the
                                                14
                                                                               No.    2012AP1652



First    and    Fourteenth          Amendments         that    the   plaintiff        seeks   to

vindicate.           It    then   must      identify         and   evaluate     the     precise

interests put forward by the State as justifications for the

burden imposed by its rule."                  Id.       The Court analyzed the facts

supporting      the        alleged    burdens          on   supporters    of     independent

candidates      and       concluded        that    "[t]he      inquiry    is    whether       the

challenged      restriction          unfairly          or    unnecessarily      burdens       the

availability of political opportunity."                            Id. at 793 (citation

and internal quotation marks omitted).

    ¶30        The        Court     then     took       up     the    precise        interests

identified by the State:               "voter education, equal treatment for

partisan and independent candidates, and political stability,"

and examined the "legitimacy" of the stated interests and the

extent     to    which        the     early        filing      deadline        served    those

interests.       Id. at 796.           The Court concluded that given modern

communications, particularly those that                            occur in presidential

elections, it was not clear that the early filing requirement

aided voter education.                Id. at 798.             The Court also concluded
that there was "no merit in the State's claim that the early

filing" assisted in treating partisan and independent candidates

equally.       Id. at 799.

    ¶31        Nowhere in the majority opinion did the Court describe

whether it was applying rational basis or strict scrutiny to the

Ohio statute.         Rather, the Court seemed to balance the burden on

the individual's First and Fourteenth Amendment rights with the

specific interests the State sought to promote.                            However, it is
important to note that although the law directly limited how one
                                                  15
                                                                       No.     2012AP1652



could    become     a   nonpartisan      candidate,      it     was    the     indirect

restriction on the voters' right to have a choice of candidates

that drove the Court's decision.

      ¶32     In Burdick v. Takushi, 504 U.S. 428 (1992), another

case related to burdens on the right to vote, the Supreme Court

continued to focus its discussion on the rights being burdened.

There, Hawaii's lack of a provision to permit write-in voting

was     challenged      as    an   impermissible        burden        on     First   and

Fourteenth Amendment protections.                Because only one candidate

filed    nomination      papers    for    a    state    legislative          seat,    the

petitioner wanted to mount a write-in campaign and was told that

Hawaii made no provision for write-in candidates.                      Id. at 430.

      ¶33     As the Court began its discussion, it explained that

"Petitioner proceeds from the erroneous assumption that a law

that imposes any burden upon the right to vote must be subject

to strict scrutiny.           Our cases do not so hold."                   Id. at 432.

The   Court    instructed      that   only    "severe        restrictions"      by    the

State    would      require    a   compelling        state     interest       and    that
"reasonable,        nondiscriminatory"        regulations       were       permissible.

Id. at 434.

      ¶34     The    Court    concluded       that     the    burden       imposed    by

Hawaii's lack of a provision for write-in voting was "slight";

therefore, the State "need not establish a compelling interest

to tip the constitutional scales in its direction."                        Id. at 439.

The Court then applied rational basis scrutiny and concluded

that "[t]he State has a legitimate interest . . . and the write-


                                         16
                                                                              No.    2012AP1652



in voting ban is a reasonable way of accomplishing this goal."

Id. at 440.

       ¶35     In Crawford, the Supreme Court decided a challenge to

Indiana's statutory requirement that an elector identify himself

by presenting a government-issued photo identification in order

to vote.        Crawford, 553 U.S. at 185.                     The complainants, who

represented among others, "groups of elderly, disabled, poor,

and     minority      voters,"       alleged        that   the     law        "substantially

burdens      the     right    to     vote    in     violation       of    the       Fourteenth

Amendment" and that it will "arbitrarily disfranchise qualified

voters who do not possess the required identification and will

place an unjustified burden on those who cannot readily obtain

such identification."              Id. at 187.

       ¶36     In    upholding       the    constitutionality            of    the     Indiana

statute, six members of the Court applied the Burdick/Anderson

analysis,       although      the     lead        opinion,     authored         by     Justice

Stevens,       and    the    concurrence,           authored      by     Justice       Scalia,

applied the analysis somewhat differently.                        In the first step of
that     analysis,      six     justices          examined     whether         requiring      a

government      issued       photo    identification         burdens          the    right   to

vote.     Id. at 189-90; id. at 204 (Scalia, J., concurring).                                The

lead    opinion      concluded       that     the    requirement         did     not    impose

"excessively burdensome requirements on any class of voters" and

that    "the    statute's       broad       application      to   all     Indiana       voters

. . . imposes only a limited burden on voters' rights."                                Id. at

202-03 (citations and internal quotation marks omitted).                                     The
concurrence         evaluated      and      upheld    a    single      burden        that    was
                                              17
                                                                                  No.   2012AP1652



uniformly         imposed         on        all        voters,       without        regard      to

classifications of voters and took issue with the lead opinion's

consideration of "class of voters."                            Id. at 205 (Scalia, J.,

concurring).

      ¶37    Given that the burdens imposed were not "severe," both

the   lead   opinion        and    the       concurrence           applied     rational      basis

scrutiny in determining that the law was reasonably related to

the State's legitimate interests and therefore, upheld the photo

identification       law.             Id.    at     204;      id.     at    209    (Scalia,     J.

concurring).

      ¶38    In    Wagner,        a    Wisconsin            case     affecting      voting,     we

applied the Burdick/Anderson burden analysis to a constitutional

challenge to an enforced delay in becoming a candidate.                                   Wagner,

263 Wis. 2d 709, ¶¶1, 76.                   Judge Wagner claimed a deprivation of

"liberty     and    equal     protection               of    the     law"     under     both   the

Wisconsin     Constitution             and        the       United    States       Constitution

brought about by the enforced delay of his opportunity to be a

candidate for a non-judicial office during the judicial term for
which he had been elected.8                  Id., ¶76.

      ¶39    We    began     by        first       considering         "the    character       and

magnitude of the asserted injury to the rights protected."                                     Id.,

      8
       We note that Judge Wagner's due process and equal
protection claims under the Wisconsin Constitution related to
Article I, Section 1 of the Wisconsin Constitution and that
plaintiffs' challenge to Act 23 is based on Article III, Section
1 of the Wisconsin Constitution.       However, the method of
analysis of burdens employed in Wagner v. Milwaukee Cnty.
Election Comm'n, 2003 WI 103, 263 Wis. 2d 709, 666 N.W.2d 816,
is appropriate here too.

                                                  18
                                                                          No.    2012AP1652



¶77 (quoting Anderson, 460 U.S. at 789).                     We then considered the

"legitimacy and strength" of the State's specifically identified

interests, that of maintaining the integrity and independence of

the judiciary.          Id., ¶83.          In so doing, we imported the United

States Supreme Court's method of focusing first on the burden

placed on a right related to voting and from that determination,

deciding    what     level      of    judicial      scrutiny      would    be    required.

After    concluding       that       the   burden     on    the   right    to    become   a

candidate was not severe, we applied rational basis scrutiny to

the     challenged      limitation          and   concluded       that     the    State's

significant interest supported the delay.                     Id., ¶¶84-85.

                                C.    Burdens of Act 23

      ¶40    We structure our discussion of plaintiffs' challenges

to Act 23 consistent with the method of analysis employed in

Burdick and Anderson, as we did in Wagner, where the challenge

related     to   when     a    candidate      could    be    submitted     for    voters'

consideration       and       how    the   protections      of    both    the    Wisconsin

Constitution and the United States Constitution were implicated.
Id., ¶76.        Accordingly, we first consider whether the burden on




                                             19
                                                    No.   2012AP1652



the right to vote is severe.9    We begin by examining whether the

time and inconvenience of going to DMV offices to secure DOT

photo identification cards for voting is a severe burden.        We

then consider whether payments for transportation to DMV offices

and for documents that DMV has required before it would issue

the requested photo identification cards are severe burdens on

the exercise of the franchise.    Finally, we consider the precise

interests identified by the State for enacting Act 23.




    9
       In Frank, the district court repeatedly cited to Anderson
v. Celebrezze, 460 U.S. 780 (1983) and Burdick v. Takushi, 504
U.S. 428 (1992), but it did not follow the legal standard those
cases provide.     Frank, Nos. 11CV1128 and 12CV185, 2014 WL
1775432, at *5.       The district court did not employ the
Anderson/Burdick analytic framework because the court did not
first determine whether the Wisconsin act severely burdened
exercise of the franchise. Id. at *6. Rather, the court merely
concluded that the act placed an "unjustified" burden on the
right to vote.    Id. at *18.   It arrived at its conclusion by
first deciding that Walker had failed to prove the significance
of the State's interests.    Id. at *6-11.   Because the State's
interests were not significant, the district court concluded
that the burden was "unjustified." Id. at *18.

     The district court's reasoning stands the Anderson/Burdick
analysis on its head.    Anderson and Burdick require that the
statutory challenger first prove whether the burden on the
franchise is severe because it is this initial determination
about the severity of the burden that drives the level of
scrutiny courts then apply to the State's asserted interests.
Burdick, 504 U.S. at 434, 440; see also Crawford v. Marion Cnty.
Election Bd., 553 U.S. 181, 190 (2008); id. at 205 (Scalia, J.,
concurring). It is only when a statute imposes a severe burden
on the right to vote that the State's asserted interests are
subject to strict scrutiny.        Burdick, 504 U.S. at 434.
Accordingly,   Frank  provides   no   guidance  as  we   address
plaintiffs' claims.

                                 20
                                                                             No.   2012AP1652



                               1.   Time/Inconvenience

       ¶41     The record provides extensive testimony about trips to

DMV     offices      by   individuals       who     sought      to     obtain      Act     23-

acceptable photo identification for voting.                       Some of these trips

were at quite a distance and many trips were repeats because

either the line to obtain a photo identification card was too

long    or    the     applicant     did    not    have    the    documents         that    DMV

required in order to issue a photo identification card.                                   Some

witnesses testified that they had spent in excess of six hours

in their efforts.

       ¶42     No one who testified thought the process of obtaining

a DOT photo identification card was easy.                             However, all were

successful, except two applicants, Ruthelle R. Frank and Ricky

T. Lewis.          They were unable to obtain photo identification cards

because       of    problems    with      their   birth       certificates         that   may

require court action to correct.

       ¶43     Few cases have parsed the constitutional significance

of     time    and    inconvenience        burdens       on     the    right       to    vote.
However, Crawford did, to some extent, when it considered the

burden that "life's vagaries" can impose and noted that:

       [a] photo identification requirement imposes some
       burdens on voters that other methods of identification
       do not share. For example, a voter may lose his photo
       identification, may have his wallet stolen on the way
       to the polls, or may not resemble the photo in the
       identification because he recently grew a beard.
Crawford, 553 U.S. at 197.                  Crawford also went on to explain

that    "the       inconvenience    of     making    a   trip     to    [a    state      motor
vehicle office], gathering the required documents, and posing

                                             21
                                                                                   No.    2012AP1652



for a photograph surely does not qualify as a substantial burden

on the right to vote, or even represent a significant increase

over the usual burdens of voting."                          Id. at 198.            We agree with

that assessment.

       ¶44     Moreover,          we   note     that      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.               For       example,      years      ago,    driver

licenses      did      not    require      a    photograph         of    the     licensee,        now

Wisconsin         driver      licenses        do.         Photo    identification          is     now

required to purchase a firearm, to board a commercially operated

airline flight, to enter some federal buildings and to obtain

food stamps.           Photo identification is often required to obtain a

book    from       a   public       library,        to     cash    a    check,      to    purchase

alcoholic beverages, to be admitted to many places of employment

and    to     be       seen    by       one's       own    physician         for     a    personal

appointment.           Elector identification is certainly as important

an identification as any of the above examples.
       ¶45     The     federal         government         also    has    directed        states    to

require photo identification in circumstances where the federal

government was not involved in the past.                               For example, the REAL

ID Act of 2005, Pub.L. 109-13, sets forth requirements for state

driver      licenses       wherein       underlying         documents        are    required       to

obtain       or    renew      a     driver's        license       in     a   state       that     has

implemented the REAL ID Act, as Wisconsin has.10                               See, e.g., Wis.

       10
       The REAL ID Act also applies to those ID cards for
boarding commercially operated airline flights, entering federal
                                                 22
                                                                             No.     2012AP1652



Stat.       § 343.165.            As        inconvenient     as   it    may        be,     photo

identification is here to stay.                        It is a fact of life to which

we all have to adjust.

       ¶46    We    do     not    minimize        the    difficulties    that       some     who

applied       for        Act     23-acceptable           photo    identification            have

encountered         in    the    past        or   will    encounter     in    the        future.

However,      the    time       and    inconvenience        incurred    are        not    severe

burdens on the right to vote.                          In many cases, these familiar

burdens are no more of an imposition than is the exercise of the

franchise itself, which can involve waiting in long lines and

traveling distances in order to personally cast a ballot on

election day.11

       ¶47    In addition, we note that the NAACP and Voces are two

of Wisconsin's most conscientious and capable organizations in

regard to encouraging and facilitating voting.                           They will know

what        documentation             DMV      requires      to    issue       DOT         photo

identification cards for voting and will work to assure that

members of the African-American and Latino communities will be
well prepared for their trips to DMV.                       NAACP and Voces have seen

the power that the voting booth can give to their communities


buildings and nuclear power plants.    It does not apply to DOT
photo identification cards issued for use in voting.
       11
       While our focus is on DOT issued photo identification
cards, we note that some of those who testified had obtained a
Wisconsin   driver's  license.     Any  payments   to  Wisconsin
government agencies in order to obtain a driver's license are
not relevant to our discussion because that license confirms the
privilege to drive; it is not obtained solely for elector
identification.

                                                  23
                                                                             No.   2012AP1652



and will continue to work to assure that all eligible voters

have the opportunity to exercise their franchise.

      ¶48     The    Government        Accountability           Board    (GAB)     also    is

poised to assist in educating the electors about how to obtain a

DOT-issued      photo      identification              card.       The       GAB   received

legislative         approval     for    a    $1.9        million    appropriation         to

implement Act 23 and to educate Wisconsin voters on where and

how to obtain Act 23-acceptable photo identification.                              Although

some of these efforts have been put on hold due to circuit court

injunctions,         the   GAB    remains         a     significant          resource     for

information and education.

                                        2.   Costs

      ¶49     We now turn to the other burden that the plaintiffs

identified and the circuit               court found, which are the costs

incurred in obtaining a DOT-issued photo identification card for

voting.     Some costs involved payments for transportation to DMV

offices or time taken from work.                   They are not costs paid to a

government agency nor are they regulated by Act 23.                                 In some
respects, they are similar to those costs incurred in casting an

in-person ballot.          They are not a severe burden on the right to

vote.

      ¶50     Plaintiffs       also     provided         evidence       of    payments     to

government agencies to obtain documents required by DMV to issue

DOT   photo    identification          cards      to    vote.      Plaintiffs       do    not

employ the term "poll tax" in regard to those payments and we do

not define them as poll taxes.                 Plaintiffs assert, however, that
those payments are an unconstitutional burden on the right to
                                             24
                                                                       No.     2012AP1652



vote.         Because other jurisdictions have characterized payments

to government agencies to obtain documents necessary to voting

as a de facto poll tax and because there are compelling reasons

to assure that Wisconsin does not impose an unconstitutional fee

as   a        condition      of    voting,    we    interpret    Act   23    with   both

characterizations in mind.

         ¶51        Act 23 provides that DOT "may not charge a fee to an

applicant for the initial issuance, renewal, or reinstatement of

an identification card" when "the applicant requests that the

identification card be provided without charge for purposes of

voting."            Wis. Stat. § 343.50(5)(a)3.          This provision prohibits

DOT from causing any elector, rich or poor, to pay a fee as a

condition to voting.

         ¶52        However, plaintiffs incurred costs due to payments to

government agencies for documents that DMV required in order to

issue DOT photo identification cards for voting.                            These costs

were not paid to DOT or its division, DMV; they were paid to

other government agencies.                   One example of such a cost is the
payment for certified copies of birth certificates that DMV has

required as proof of name, date of birth and citizenship.12                          See

Wis. Stat. § 69.22.

         ¶53        Payments required to be made to a Virginia government

agency         in    order    to    exercise    the    right    to   vote    were   held

unconstitutional in Harper, where a $1.50 poll tax was examined.

         12
       Copies of other vital records, Wis. Stat. § 69.21, may
also have been required.     For convenience of discussion, we
refer only to birth certificates.

                                               25
                                                                         No.      2012AP1652



The    Supreme      Court    concluded      that     "payment    of    any     fee"    to   a

Virginia government entity could not be required as a condition

of voting.          Harper, 383 U.S. at 666.             Although the Court talked

about    the    uneven      impact    such    a    fee   may    have   on      those    with

limited financial resources, the Court struck down the fee for

all voters.         Id.

       ¶54     More    recently,      state       supreme    courts     have      examined

claims that fees paid to state agencies to obtain documents

required as part of the application process for state photo

identification cards violated electors' constitutional rights.

For example, in In re Request for Advisory Opinion Regarding

Constitutionality of 2005 PA 71, 740 N.W.2d 444 (Mich. 2007),

the Michigan Supreme Court considered a facial challenge to a

Michigan       statute      that   required        potential    voters       to   identify

themselves with a government-issued photo identification card.

Id. at 451.           As part of its discussion, the court examined

whether ancillary charges for documents necessary to obtaining

the required photo identification card operated as a de facto
poll    tax    that       violated   the     Michigan       Constitution       or     United

States Constitution.           Id. at 463-66.

       ¶55     In    concluding      that    the    Michigan    statute        was    not   a

de facto poll tax, the court explained:

       [T]he statute does not condition the right to vote on
       the payment of any fee.        A voter who does not
       otherwise possess adequate photo identification is not
       required to incur the costs of obtaining photo
       identification as a condition of voting.    Instead, a
       voter may simply sign an affidavit in the presence of
       an election inspector.       Nothing in the statute

                                             26
                                                                       No.       2012AP1652


      contemplates that a voter is required to incur any
      costs in the execution of an affidavit.
Id. at 464-65.             Therefore, the Michigan statute differed from

the Wisconsin law because Act 23 requires elector identification

by presenting a government-issued photo identification and does

not permit an elector to vote after signing an affidavit of

identity at the polls.13

      ¶56    In City of Memphis v. Hargett, 414 S.W.3d 88 (Tenn.

2013),      the    Tennessee      Supreme        Court   considered        a     Tennessee

statute     that     required,     with    limited       exceptions,       electors         to

provide photographic proof of identity.                    Id. at 92.            Under the

Tennessee law, an elector who attempted to vote in person, but

was unable to produce valid evidence of identification and did

not   fall        within    the   exceptions        to   the   law,        may       cast   a

provisional        ballot,     which      would     be   counted      if       the     voter

presented valid proof of identity within two days after the

election.     Id. at 93.




      13
       The affidavit alternative available to Michigan electors
provides:

      If the elector does not have an official state
      identification card, operator's or chauffeur's license
      as required in this subsection, or other generally
      recognized picture identification card, the individual
      shall sign an affidavit to that effect before an
      election inspector and be allowed to vote as otherwise
      provided in this act.

In re Request for Advisory Opinion Regarding Constitutionality
of 2005 PA 71, 740 N.W.2d 444, 451 (Mich. 2007) (quoting Mich.
Comp. Laws § 168.523).

                                            27
                                                                                 No.    2012AP1652



      ¶57      Two         voters           presented            non-compliant                photo

identifications            issued      by    the     City        of   Memphis          and    cast

provisional          ballots         when    their        identifications              were       not

accepted.           Id.    at    93-94.       Those       voters      and   the        City    then

challenged      the       statute,      bringing      both       facial     and        as-applied

constitutional challenges.                   Id.    at 94-95.            In upholding the

constitutionality               of    the    Tennessee           statute         against          the

challenges, part of which contended that the law amounted to a

de facto poll tax, the court pointed out that:

      [T]his state's Act contains an exception for any in-
      person voter who "is indigent and unable to obtain
      proof of identification without payment of a fee[.]"
      By its plain language, this provision exempts from the
      photo ID requirement any voter unable to pay the fees
      needed to obtain valid evidence of identification,
      including any fee associated with the documentation
      necessary to obtain a "free" photo ID card pursuant to
      section 55-50-336(g)(1).    Because of this provision,
      we cannot endorse the Plaintiffs' characterization of
      the photo ID requirement as a poll tax.
Id.     at   106      (emphasis        added)       (citation         omitted).              There,

indigency operated as an exception to payment of direct and
ancillary fees while preserving the right to vote.

      ¶58      In    Crawford,        the    United    States         Supreme      Court       also

mentioned ancillary fees.                   It noted that, "Indiana, like most

States,      charges       a    fee   for    obtaining       a    copy      of    one's       birth

certificate.         This fee varies by county and is currently between

$3 and $12."              Crawford, 553 U.S. at 198 n.17.                        However, the

Court    did    not       consider      whether      an    ancillary        payment          to    an

Indiana government agency in order to obtain a birth certificate
was a de facto poll tax because "the record does not provide

                                               28
                                                                    No.        2012AP1652



even a rough estimate of how many indigent voters lack copies of

their birth certificates."             Id.    at 202 n.20.          Additionally,

indigent     electors    could   avoid    paying      that   fee    by    casting      a

provisional ballot and then executing an affidavit before the

circuit court clerk within ten days of the election.                             Id. at

186.

       ¶59   The voter identification laws of Michigan, Tennessee

and Indiana all included a provision by which a voter could cast

a ballot without paying money to a government agency.                            Act 23

similarly     provides    that   DOT     "may    not    charge     a     fee     to   an

applicant for the initial issuance, renewal, or reinstatement of

an identification card" when "the applicant requests that the

identification card be provided without charge for purposes of

voting."     Wis. Stat. § 343.50(5)(a)3.

       ¶60   Requiring payment to a government agency to obtain a

DOT photo identification card for voting puts the administrative

regulation on a collision course with Act 23's directive that

DOT "may not charge a fee."         It also would be a severe burden on
the right to vote.

       ¶61   Why is this burden severe?              The usual payment of $20

for a certified copy of a birth certificate is modest and does

not approach the sizeable costs parsed in other cases that bear

on voting.     See Lubin v. Panish, 415 U.S. 709, 710, 719 (1974)

(concluding that $701.60 filing fee was unconstitutional); see

also    Bullock   v.     Carter,   405        U.S.    134,   145,        149     (1972)

(explaining that a primary filing fee that at times reached
$8,900 was constitutionally impermissible).
                                         29
                                                                                 No.     2012AP1652



       ¶62    The     modest     fees       for        documents        necessary       to    prove

identity would be a severe burden on the constitutional right to

vote    not   because      they       would       be        difficult    for     some    to       pay.

Rather,      they    would     be     a    severe       burden     because       the    State       of

Wisconsin may not enact a law that requires any elector, rich or

poor, to pay a fee of any amount to a government agency as a

precondition          to     the          elector's           exercising        his      or        her

constitutional        right      to       vote.        See     Harper,    383     U.S.       at    666

(concluding         that   the      "payment           of    any   fee    [may    not        be]    an

electoral standard").14

       ¶63    Given our conclusion that it would be contrary to Act

23 and a severe burden on the right to vote if an elector were

obligated to pay a fee to a government agency in order to obtain

documents required for a DOT photo identification card to vote,

we now consider whether a saving construction that is consistent

with the statutory mandate and the Wisconsin constitution is

possible.15         If a saving construction of the administrative rule



       14
       Although    Harper  was  based   on  the   United   States
Constitution, Wisconsin's protection of the right to vote is
even stronger because in addition to the equal protection and
due process protections of Article I, Section 1 of the Wisconsin
Constitution, the franchise for Wisconsin voters is expressly
declared   in   Article   III,  Section   1  of  the    Wisconsin
Constitution.
       15
       We have broad subject matter jurisdiction as a "court of
last resort on all judicial questions under the constitution and
laws of the state; a court of first resort on all judicial
questions affecting the sovereignty of the state, its franchises
or prerogatives, or the liberties of its people." Attorney Gen.
v. Chicago & Nw. Ry. Co., 35 Wis. 425, 518 (1874).

                                                  30
                                                                      No.       2012AP1652



preserves the constitutionality of the statute, we will employ

it.    See McConnell v. Fed. Election Comm'n, 540 U.S. 93, 180

(2003) (concluding that where a saving construction is "fairly

possible," the court will adopt it) (quoting Crowell v. Benson,

285 U.S. 22, 62 (1932)).

      ¶64     We do so in order to avoid a constitutional conflict.

See, e.g., Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S.

497, 503 (2001) (avoiding an interpretation of Fed. R. Civ. Pro.

41(b) that "would arguably violate the jurisdictional limitation

of    the    Rules    Enabling    Act").         Stated      otherwise,         when     we

determine      that    there     is   a     statutory       flaw    that    may        have

constitutional significance, we ascertain whether the government

rule or statute can be interpreted in a manner that will avoid a

constitutional        conflict.       See      State   ex    rel.    Strykowski          v.

Wilkie, 81 Wis. 2d 491, 506, 261 N.W.2d 434 (1978).                               As the

Supreme Court has explained, it is best to "limit the solution

to the problem" rather than enjoining the application of an

entire      statute   due   to    a   limited     flaw.       Ayotte       v.    Planned
Parenthood of N. New England, 546 U.S. 320, 328-29 (2006).




     It is true that courts may lack subject matter jurisdiction
to review administrative agency decisions if the petition for
review is not timely filed. Schiller v. DILHR, 103 Wis. 2d 353,
355, 309 N.W.2d 5 (Ct. App. 1981) (concluding that circuit court
lacked subject matter jurisdiction to review LIRC decision
because petition was not timely filed); Kegonsa Joint Sanitary
Dist. v. City of Stoughton, 87 Wis. 2d 131, 150, 274 N.W.2d 598
(1979) (same).   However, this line of cases has nothing to do
with the issues presented in this appeal.

                                          31
                                                                        No.    2012AP1652



      ¶65    Here, the potential to impose a severe burden on the

right to vote is not stated in Act 23 itself.                     Rather, the flaw

is    in    the    administrative         rules   that     DMV    has     applied         to

applicants        for    DOT      photo    identification         cards       to        vote.

Accordingly, we do not initially weigh the burden identified,

i.e., the fees paid to government agencies to obtain documents

that DMV has required prior to issuing DOT photo identification

cards      for    voting,      because     a    saving     construction            of     the

administrative rule must be considered first.

                             3.    Saving construction

      ¶66    Wisconsin statutes and administrative regulations that

address the same subject matter must be construed in a way that

harmonizes them.         Cnty. of Milwaukee v. Superior of Wisconsin,

Inc., 2000 WI App 75, ¶21, 234 Wis. 2d 218, 610 N.W.2d 484.

Here, Wis. Admin. Code § Trans 102.15(3)(a) requires documents

for "Proof of Name and Date of Birth," that other statutes, such

as Wis. Stat. § 69.22, require payment to provide.                        This creates

a    conflict     with    Act     23's    directive      to   provide         DOT       photo
identification cards for voting without charge.

      ¶67    However, DMV administrators have discretion under Wis.

Admin.     Code    § Trans      102.15(3)(b)      to     excuse    the     failure         to

provide documents referenced in § Trans 102.15(3)(a) when DOT

photo identification cards for voting are requested.                                Section

Trans 102.15(3)(b) and (c) provide:

           (b)   If  a   person  is   unable   to  provide
      documentation under [§ Trans 102.15(3)](a), and the
      documents are unavailable to the person, the person
      may make a written petition to the administrator of

                                           32
                                                                         No.       2012AP1652


    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:

         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.
    ¶68     Because       the      exercise       of     a     DMV      administrator's

discretion   has    constitutional          ramifications         when       a    DOT      photo

identification card for voting is requested, we note that we are

obliged to choose the interpretation of Wis. Admin. Code § Trans

102.15(3)(b)      that      does     not        conflict       with     the       Wisconsin

Constitution.      See Am. Family, 222 Wis. 2d at 667.

    ¶69     In    order    to     harmonize      the   directive        of       Wis.      Stat.
§ 343.50(5)(a)3.,         which    says    no    fees;       statutes    such         as    Wis.

Stat. § 69.22, which impose payment of fees; and Wis. Admin.

Code § Trans 102.15(3)(a), which requires certain documents for

which   electors     may     be    required       to     pay    fees     to      government

agencies,    we    construe       § Trans       102.15(3)(b).            We      do     so    to

preserve the constitutionality of § 343.50(5), as follows:                                   One

who petitions an administrator pursuant to § Trans 102.15(3)(b)
for an exception is constitutionally "unable" to provide those


                                           33
                                                                           No.     2012AP1652



documents         and    they   are     constitutionally        "unavailable"          to   the

petitioner within our interpretation of § Trans 102.13(3)(b), so

long as petitioner does not have the documents and would be

required to pay a government agency to obtain them.16

       ¶70        Stated      otherwise,      to       invoke       an   administrator's

discretion in the issuance of a DOT photo identification card to

vote,       an    elector:        (1)    makes     a   written      petition      to    a   DMV

administrator            as     directed     by        Wis.     Admin.     Code        § Trans

102.15(3)(b) set forth above; (2) asserts he or she is "unable"

to provide documents required by § Trans 102.15(3)(a) without

paying a fee to a government agency to obtain them; (3) asserts

those documents are "unavailable" without the payment of such a

fee; and (4) asks for an exception to the provision of § Trans

102.15(3)(a) documents whereby proof of name and date of birth

that have been provided are accepted.                         § Trans 102.15(3)(b) and

(c).         Upon       receipt    of    a   petition         for   an   exception,         the

administrator, or his or her designee, shall exercise his or her

discretion in a constitutionally sufficient manner.17
       ¶71        We further conclude that filing a Wis. Admin. Code

§ Trans          102.15(3)(b)     petition       for     an    exception    with       a    DMV


       16
       Our ruling in this regard applies to the provision of an
elector's initial, renewal and reinstatement of a DOT photo
identification card. It does not apply to replacements for DOT
photo identification cards that have been lost or misplaced.
       17
       We do not address the straw man of personal jurisdiction
because it is not the DMV administrator's rights that are at
issue in this lawsuit. It is the electors' constitutional right
to vote.

                                             34
                                                                         No.   2012AP1652



administrator, as set forth above, is not a severe burden on the

right    to    vote.        Accordingly,         because     the    burdens    of    time,

inconvenience and costs upon electors' right to vote are not

severe under our interpretation of § Trans 102.15, we apply a

rational basis level of scrutiny in determining whether Act 23

is constitutional.           Mary F.-R., 351 Wis. 2d 273, ¶35; Wagner,

263 Wis. 2d 709, ¶84.             As the Supreme Court has explained, it is

erroneous to assume that a law that regulates voting must be

subject to strict scrutiny.                 Burdick, 504 U.S. at 432.               Strict

scrutiny applies only when a statute imposes a severe burden on

the exercise of the franchise.                  Id. at 434.

                                  D.     State Interests

       ¶72    Defendants          have     identified         state      interests      of

protecting         the   integrity        and        reliability    of   the   electoral

process, maintaining public confidence in election results and

preventing voter fraud as significant and compelling interests

that underlie Act 23.

       ¶73    It should be beyond question that the State has a
significant and compelling interest in protecting the integrity

and reliability of the electoral process, as well as promoting

the public's confidence in elections.                        Crawford, 553 U.S. at

196.     As we learn of elections that are currently occurring

around       the    world    in    troubled           nations,     the   integrity     and




                                                35
                                                                             No.     2012AP1652



reliability of the electoral process and the public's confidence

in elections are always exceedingly important.18

      ¶74    The       circuit     court       found   there    was    no     evidence       of

"recent" voter impersonation fraud in Wisconsin.                             However, that

finding cannot overcome the State's interest in preventing voter

fraud.19     As the Supreme Court has held, "[v]oter fraud drives

honest      citizens        out    of    the       democratic    process       and        breeds

distrust of our government.                    Voters who fear their legitimate

votes      will    be       outweighed         by    fraudulent       ones         will     feel

disenfranchised."           Purcell v. Gonzalez, 549 U.S. 1, 4 (2006).

      ¶75    We agree that the identified interests are significant

and compelling.             Id. (explaining that the "State indisputably

has a compelling interest in preserving the integrity of its

election process" (quoting Eu v. San Francisco Cnty. Democratic

Cent. Comm., 489 U.S. 214, 231 (1989) and that "[c]onfidence in

the   integrity        of    our   electoral         process    is    essential       to     the

functioning of our participatory democracy").                          However, because

the   burden      on    exercise        of   the    franchise    is    not    severe,        the
defendants need show only a legitimate state interest and that


      18
       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.
      19
       We note that Wisconsin was one of the states identified
in Crawford, where there is a record of voter fraud having
occurred. Crawford, 553 U.S. at 195 n.12.

                                               36
                                                                            No.    2012AP1652



requiring elector identification by the use of a government-

issued photo identification is a reasonable means of serving

that interest.           See Wagner, 263 Wis. 2d 709, ¶¶77-78; Crawford,

553 U.S. at 196-97; 553 U.S. at 208 (Scalia, J., concurring);

Burdick, 504 U.S. at 440.

      ¶76     We conclude that the use of Act 23-acceptable photo

identification is a reasonable means of furthering the stated

interests.        It may help to assure the public that the electoral

process     is    followed      and    that    results      of       elections     held    in

Wisconsin     validly       represent      the     will    of    the     electors.         In

addition,        those    who   would      attempt    to    defraud         the    electors

through misrepresentations to election officials will find that

task more difficult.

                                 III.      CONCLUSION

      ¶77     We conclude that the burdens of time and inconvenience

associated with obtaining Act 23-acceptable photo identification

are   not    severe       burdens     on   the     right    to       vote    and    do    not

invalidate the law.             The burdens of time and inconvenience of
obtaining     Act    23-acceptable         photo    identification           are   in    many

respects no more of an imposition than is casting an in-person

ballot on election day.               Furthermore, photo identification is a

condition of our times where more and more personal interactions

are   being      modernized      to    require      proof       of    identity      with    a

specified type of photo identification before proceeding.

      ¶78     However,     to require         payments     to    government agencies

for documents necessary to obtain DOT photo identification cards
for voting would severely burden the right to vote because it
                                            37
                                                                          No.     2012AP1652



would condition that right on payment to a government agency.

Act 23 explicitly prohibits payment to a government agency to

obtain a DOT photo identification card for voting.

      ¶79   The      payments          at    issue      arise       under        Wisconsin

administrative      rules       that    implement    Act      23.      Therefore,        we

construed those rules and explained how the discretion of the

DMV   administrator        must    be       exercised    in     a    constitutionally

sufficient manner.          Such exercise of discretion requires the

issuance of DOT photo identification cards for voting without

requiring documents for which a fee continues to be charged by a

government agency.         In so doing, we employ a saving construction

of Wis. Admin. Code § Trans 102.15(3)(b) and relieve the severe

burden   that      would    otherwise        exist   due      to    costs       levied   by

government agencies.

      ¶80   Because Act 23 does not place a severe burden on the

exercise of the franchise, we apply rational basis scrutiny and

conclude    that    Act    23     is    reasonably      related      to     the    State's

significant interests.            Accordingly, we reverse the judgment of
the circuit court and vacate all injunctions the court issued.

      By the Court-The judgment of the circuit court is reversed

and the permanent and temporary injunctions are vacated.




                                            38
                                                                        No.    2012AP1652.ssa


       ¶81       SHIRLEY S. ABRAHAMSON, C.J.                  (dissenting).          I have

written in dissent in League of Women Voters v. Walker, 2014 WI

97, ___ Wis. 2d ___, ___ N.W.2d ___.                     That dissent also applies

to the instant case.              Indeed I incorporate my entire dissent in

League of Women Voters in this dissent.                        The instant case, like

League      of    Women    Voters,       is    a    facial     challenge       to   Act   23,

although it presents a richer factual record than does League of

Women Voters.

       ¶82       Like   the   majority             opinion1    and     Justice      Crooks'

dissent,2 I agree that Act 23 creates a severe burden on the

exercise of the right to vote.                      I join the reasoning set forth

in    Justice      Crooks'    dissent         concerning      the    substantial     burden

placed on the right of qualified voters to vote; the failure of

the    State      to    advance    a    compelling       state       interest;      and   the

failure of the majority opinion in NAACP to remedy the burdens

it identifies.3           In particular, I agree with Justice Crooks'

dissent that the record in the instant case demonstrates that a

substantial         number    of       constitutionally         qualified       registered


       1
       Majority op., ¶7 (noting that                          the    statute     creates    a
"severe burden on the right to vote").
       2
           See Justice Crooks' dissent, ¶92.
       3
       See also Frank v. Walker, No. 11-CV-01128, 2014 WL 1775432
(E.D. Wis. Apr. 29, 2014). Although the instant case provides a
slightly different record and the challenge in the instant case
is raised under the Wisconsin Constitution, not the United
States Constitution, the Frank court's reasoning that Act 23
imposes burdens on the right to vote and that the State failed
to meet the requirements of the test laid out in Burdick v.
Takushi, 504 U.S. 428 (1992), and Anderson v. Celebrezze, 460
U.S. 780 (1983), is instructive.

                                                1
                                                                            No.   2012AP1652.ssa


voters     in    Wisconsin    do     not    possess          the     required      government-

issued     identification4         and     that      the     costs     of    obtaining      such

identification constitute a severe burden.5

      ¶83       I write separately, however, because as I wrote in my

dissent in League of Women Voters, the NAACP opinion is confused

and   confusing         regarding    the     standard          of    review.6          Moreover,

Wisconsin case law sets forth a stringent standard of review for

voting rights cases applicable to both League of Women Voters

and the instant case under the Wisconsin Constitution.                                        The

League      of    Women    Voters        case       and      the    instant       case     ignore

Wisconsin's        jurisprudence           regarding           review       of     legislation

regulating voting rights.

      ¶84       Nevertheless,       whether         I     apply      the    Burdick/Anderson

standard of review or any variation thereof or the standard in

Wisconsin's case law regarding review of legislation regulating

voting rights, I conclude that Act 23 is unconstitutional.                                   The

State     "may    not    burden     the    right        to    vote    merely      by     invoking

abstract interests, be they legitimate, or even compelling, but
must make a particular, factual showing                              that threats to its

interests outweigh the particular impediments it has imposed.

The State has made no such justification here, and as to some

aspects of its law, it has hardly even tried."7
      4
          See Justice Crooks' dissent, ¶¶114-118.
      5
          See Justice Crooks' dissent, ¶¶119-134.
      6
       See League of Women Voters v. Walker, 2014 WI 97, ¶¶112-
136 (Abrahamson, C.J., dissenting).
      7
       Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 209
(2008) (Souter, J., dissenting) (citation omitted).
                                                2
                                                     No.    2012AP1652.ssa


    ¶85   Like   Justice   Crooks'   dissent,   I   would    hold    that

invalidating Act 23 is the only appropriate remedy.          This court

should not rule on administrative regulations not before us or

rewrite a statute.   For the foregoing reasons, I dissent.




                                 3
                                                                No.       2012AP1652.npc


      ¶86   N. PATRICK CROOKS, J.           (dissenting).       The question of

whether Act 23 violates the Wisconsin Constitution is at the

intersection    of    profound    democratic     principles:         the     right    of

qualified Wisconsin citizens to vote, as explicitly guaranteed

by the Wisconsin Constitution,1 and the undisputed principle that

the   state    has    a   legitimate       interest     in    safeguarding           the

integrity      of     elections       through        regulations.2               Voter

identification provisions are one way the state may choose to

protect the legitimacy of elections.                  Such provisions may be

constitutionally imposed even if they severely burden a person's

right to vote as long as they are narrowly tailored to advance a

compelling     state      interest.          However,         Act     23's       photo

identification       requirements     severely       burden    eligible         voters

without     being    narrowly     tailored      to     achieve        the      state's

compelling    interests    of    reducing     voter    fraud        and    increasing




      1
       The Wisconsin Constitution guarantees the right to vote to
qualified citizens. It 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."       Wis. Const.
art. III, § 1.
      2
       Dells v. Kennedy and Others, 49 Wis. 555, 557, 6 N.W. 246
(1880) ("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."); State
ex rel. Wood v. Baker (Baker), 38 Wis. 71, 86 (1875) ("Statutes
cannot impair the right [to vote], though they may regulate its
exercise.   Every statute regulating it must be consistent with
the constitutionally qualified voter's right of suffrage when he
claims his right at an election.      Then statutes may require
proof of the right, consistent with the right itself.").

                                       1
                                                                        No.   2012AP1652.npc


voter confidence in the outcomes of elections.3                         For that reason,

Act    23    is     an     unconstitutional           election    regulation,       and    I

therefore respectfully dissent.

       ¶87       The United States Supreme Court's decision in Crawford

v. Marion County Election Board,4 which upheld Indiana's voter

identification statute, does not persuade me that Act 23 is

constitutional.                 This     is   because      there       are    substantial

differences between this case and the Crawford case.                            First, the

record in the Crawford case was not nearly as developed as the

record      in    this    case.        This   factor     certainly       influenced       the

Supreme          Court's        decision.5             Second,         Indiana's     voter

identification statute is not as stringent as Act 23.                                   Most

importantly, the Indiana law provides for an affidavit exception

that       allows        certain       individuals       to     vote     without      photo

identification.6               In   upholding       Indiana's    voter    identification

law, Justice Stevens' lead opinion commented that the severity

of the burden imposed by the photo identification requirement

       3
       The  balancing   test   under which I  find   Act  23
unconstitutional is addressed in Anderson v. Celebrezze, 460
U.S. 780, 789 (1983), and further discussed by Burdick v.
Takushi, 504 U.S. 428, 434 (1992).
       4
       Crawford           v.    Marion    Cnty.      Election    Bd.,     553    U.S.     181
(2008).
       5
       Id. at 200 ("But on the basis of the evidence in the
record it is not possible to quantify either the magnitude of
the burden on this narrow class of voters . . . . [T]he record
does not provide us with the number of registered voters without
photo identification.").
       6
       Id. at 186 (describing the affidavit procedure available
to indigent voters as well as individuals with a religious
objection to being photographed).

                                                2
                                                                        No.    2012AP1652.npc


"is, of course, mitigated by the fact that, if eligible, voters

without photo identification may cast provisional ballots that

will ultimately be counted."7                 Finally, while Act 23 applies to

both        in-person      and       absentee           voting,        Indiana's        photo

identification         requirements      do       not   apply     to    absentee       voting.

Therefore,       the      Crawford      case       is     neither       controlling       nor

persuasive.

       ¶88     The      majority     opinion            claims     to        approach     the

plaintiffs'       constitutional        challenge         to     Act    23    as   a   purely

facial challenge.8          In doing so it purports to evaluate Act 23

using the framework outlined by the United States Supreme Court

in Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v.

Takushi, 504 U.S. 428 (1992).                 However, it ultimately turns to a

different       legal     theory   to    conclude         that    Act    23     imposes    an

unconstitutional de facto poll tax9 on voters, which imposes a

severe burden.10         The de facto poll tax to which it refers is not

the cost of the identification card itself, which is available

free of charge, but the cost of obtaining a birth certificate,
which a voter is required to have to obtain an identification


       7
            Id. at 199.
       8
            Majority op., ¶¶19, 21.
       9
       Although the majority sometimes asserts that it does not
define the payments at issue as poll taxes, it acknowledges that
it interprets Act 23 with this "characterization[] in mind."
Id., ¶50.   Regardless of what the majority calls the costs at
issue, it is clear that the majority relies on poll tax
jurisprudence.
       10
       Id., ¶¶62-63 (citing Harper v. Va. Bd. of Elections, 383
U.S. 663, 666 (1966)).

                                              3
                                                                            No.    2012AP1652.npc


card for voting.11          After concluding that the costs of obtaining

a birth certificate impose an unconstitutional de facto poll tax

that severely burdens eligible Wisconsin voters, the majority

then     crafts     a   remedy      which       allows     individuals                 to    obtain

certified copies of their birth certificates free of charge.12

The    majority      concludes      that    its     remedy           lessens        the      burden

imposed by Act 23 on eligible Wisconsin voters to such a degree

that Act 23 easily passes constitutional muster.13

       ¶89    I     cannot        agree     with         the         majority           opinion's

characterization and analysis of the plaintiffs' challenge.                                       The

majority      incorrectly     characterizes         the        challenge          as    a    purely

facial      challenge.        It    fails    to     apply        the     Anderson/Burdick

framework correctly.          It improperly relies on poll tax case law.

Even if I were to assume that poll tax analysis applied, the

majority's        attempt    to    alleviate       the    de     facto        poll          tax   for

eligible Wisconsin voters results in an unworkable solution that

fails to cure the unconstitutionality of Act 23.                                  Specifically,

the majority opinion's remedy appears to                             leave in place the
discretion of DMV administrators to issue or refuse to issue Act

23-compliant        identification         where     a         fee     is     required            for

supporting documents.              If the majority opinion leaves in place


       11
       See id., ¶63.    The majority states, "Copies of other
vital records, Wis. Stat. § 69.21, may also have been required.
For convenience of discussion, we refer only to birth
certificates."  See majority op., ¶52 n.12.   I employ the same
term.
       12
            See id., ¶¶7 n.5, 70.
       13
            See id., ¶¶79-80.

                                            4
                                                                             No.   2012AP1652.npc


the   discretion       of    DMV    administrators                to    issue    exceptions       to

those       burdened        by      the      cost           of         obtaining     underlying

documentation,14        then       it     fails        to        guarantee       constitutional

protections       against        poll   taxes.          On       the     other    hand,    if     the

majority     opinion        requires       DMV       administrators          to    issue        photo

identification cards to individuals who are burdened by the cost

of obtaining required underlying documentation,15 it is directing

a non-party to take specific action, which it has no authority

to do.      In sum, the remedy imposed by the majority, under either

approach, is flawed.              It impinges on the legislature's role by

interpreting administrative code provisions that are not part of

this challenge and by directing an administrative agency that is

not a party to this case.                 I urge the legislature to take action

to cure the unconstitutionality of Act 23.                              Without such action,

the      remedy     crafted         by      the         majority           leaves         Act     23

unconstitutional.

      ¶90    The appropriate framework to analyze the plaintiffs'

challenge to Act 23 is the modified facial challenge approach,
which the United States Supreme Court has applied16 in comparable


      14
           See id., ¶70.
      15
           See id., ¶7, ¶7 n.5.
      16
       See Citizens United v. Fed. Election Comm'n, 558 U.S.
310, 333-35 (2010) (applying a modified facial challenge
approach and concluding, in part, that independent corporate
political expenditures cannot be limited under the First
Amendment); see also Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 449 n.6 (2008) (applying a
modified facial challenge approach and holding that Washington
State's primary system did not violate political parties'
associational rights under the First Amendment).

                                                 5
                                                                             No.    2012AP1652.npc


cases.       Under       a    modified         facial    challenge,          a     "law     may    be

overturned        as    impermissibly           overbroad       because        a    'substantial

number'     of    its     applications          are     unconstitutional,            'judged       in

relation to the statute's plainly legitimate sweep.'"17                                          This

differs from a purely facial challenge, which necessarily fails

if any application of the challenged law is constitutional.

      ¶91    A    modified         facial      challenge        is    appropriate          in    this

type of case because neither a purely facial challenge nor an

as-applied challenge is practical in these circumstances.                                          A

purely facial challenge requires that a party prove that a law

is   unconstitutional             under    all      circumstances.18               Based    on    the

burden that it imposes, a purely facial challenge to Act 23

fails      without        question         because        the        photo       identification

requirements of the law could be constitutionally applied to any

Wisconsin         voter          who     already        possesses         the        appropriate

identification.              In contrast to a purely facial challenge, an

as-applied        challenge            looks   at     whether        a   law       violated       the

constitutional rights of a particular person under the facts
presented.19       Here, the record developed before the circuit court

established        that      a    substantial         number     of      eligible        Wisconsin

voters     lack    Act       23-compliant        identification           and      are     severely

burdened by its requirements.                    A requirement that each burdened


      17
       Wash. State Grange, 552 U.S. at 449 n.6 (emphasis added)
(quoting Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)).
      18
       State v. Wood, 2010 WI 17, ¶13, 323 Wis. 2d 321, 780
N.W.2d 63.
      19
           Id.

                                                 6
                                                                                 No.    2012AP1652.npc


individual       bring          an       as-applied       challenge            would     perpetuate

uncertainty about the constitutionality of Act 23, as well as

result in an extreme volume of litigation that would take a

significant amount of time and resources to conclude.                                      Since the

purely    facial       and          as-applied      frameworks           cannot        appropriately

address    the     constitutionality                 of   Act    23,        I    would        apply    a

modified    facial             approach        as   utilized     by        the     United       States

Supreme Court in analogous situations discussed in more detail

herein.

     ¶92    Under          a    proper         application      of       the     Anderson/Burdick

framework,        a        modified            facial      challenge             to      Act        23's

constitutionality succeeds in establishing a violation of the

Wisconsin Constitution.                   The only proper remedy is invalidation

of the law.       This is because Act 23 imposes severe burdens on a

substantial       number            of   eligible       Wisconsin         voters        who    do    not

currently possess an Act 23-compliant form of identification,

and that burden cannot be remedied by this court.                                        First, and

most importantly, even though the identification card itself can
be   obtained         at       no    cost,       there    are    costs          associated          with

acquiring     the          underlying           documents       required          to     obtain       an

identification card.                     Those costs impose a severe burden on

certain eligible Wisconsin voters, both those born in Wisconsin

and those born in other states and other countries.                                     Second, for

certain voters the time and effort required to obtain Act 23-

compliant identification adds to the severity of the burden.

     ¶93    The       majority           recognizes       that       a    severe        cost   burden
exists,     but        instead            of     considering             such     burden        in     a

                                                    7
                                                                     No.    2012AP1652.npc


straightforward            manner         under          the         well-established

Anderson/Burdick        framework,    it       applies    poll    tax      analysis   and

crafts a remedy that purports to alleviate the burden imposed by

Act 23.      The majority concludes that the costs associated with

obtaining a free voter identification card are the functional

equivalent of an unconstitutional poll tax.                      No party or amicus

brief      advanced     this   argument.         Instead       all   recognized       the

Anderson/Burdick test as the applicable framework.                              That test

requires that a heightened level of scrutiny apply to any voting

regulation that imposes a severe burden.20                     I conclude that Act

23 imposes such a burden on a substantial number of eligible

Wisconsin voters.          This means Act 23 must be narrowly tailored

to achieve compelling governmental interests if it is to be

upheld.      I conclude that Act 23 does not meet this standard.

      ¶94     In contrast to my approach, the majority opinion makes

a radical departure from the well-established Anderson/Burdick

framework.        This is because instead of balancing the benefits

and     burdens    of    Act   23    as    the        Anderson/Burdick          framework
instructs and reaching the conclusion compelled by the record,

the majority intervenes to lessen the severity of the burden by

crafting     a    remedy   that     allows      for    individuals         to   obtain   a

certified copy of their birth certificate, a document necessary

to obtain a free voter identification card, free of charge.

Furthermore, the majority opinion's remedy reworks the framework

in which Act 23 operates, which is not the court's role.                            It is


      20
           Burdick, 504 U.S. at 434 (citing Anderson, 460 U.S. at
788).

                                           8
                                                                       No.   2012AP1652.npc


the   legislature        and    not     this       court       that     must    craft      a

constitutional         voter    identification               law      considering         the

framework in which that law operates, policy objectives, and

budgetary     constraints.            For    these      reasons,       I     respectfully

dissent.

               I.      THE MODIFIED FACIAL CHALLENGE APPROACH

      ¶95    The majority opinion asserts that it is addressing a

purely facial challenge to Act 23.21                        The majority's analysis,

however, reveals that it is not actually doing so.                                  We have

consistently said that a purely facial challenge to a law may

succeed only when the challenger proves that the law cannot be

constitutionally applied under any circumstance.22                            Because Act

23 imposes a minimal burden on eligible Wisconsin voters who

already     possess    an    approved       form   of       identification,         the   law

would survive a purely facial challenge on that basis alone.

However, the challenge before this court is not purely facial.

Instead,     it is     better understood and analyzed as a                       modified

facial challenge.
      ¶96    In certain contexts, the United States Supreme Court

has recognized the existence of a modified approach to facial

challenges.23         "Our   cases    recognize         a    second    type    of    facial
      21
           Majority op., ¶¶19, 21.
      22
       Wood, 323 Wis. 2d 321, ¶13.     United States v. Salerno,
481 U.S. 739 (1987), first established this approach to the
evaluation of a purely facial constitutional challenge.
      23
       See Wash. State Grange, 552 U.S. at 449 n.6 (discussing
First Amendment overbreadth doctrine); see also Sabri v. United
States, 541 U.S. 600, 609-10 (2004) (listing cases in which the
United States Supreme court applied a modified or relaxed facial
analysis).
                                9
                                                                  No.    2012AP1652.npc


challenge in the First Amendment context under which a law may

be overturned as impermissibly overbroad because a 'substantial

number'     of   its    applications      are   unconstitutional,         'judged     in

relation to the statute's plainly legitimate sweep.'"24

      ¶97    The     United    States    Supreme    Court     used   this     type    of

analysis in Citizens United v. Federal Election Commission, 558

U.S. 310, 333-35 (2010).                There, the Court reasoned, "In the

exercise of its judicial responsibility, it is necessary then

for the Court to consider the facial validity of § 441b.                             Any

other      course      of    decision     would    prolong     the       substantial,

nationwide chilling effect caused by § 441b's prohibitions on

corporate expenditures."25              Essential to the Court’s reasoning

was that requiring plaintiffs to bring as-applied challenges to

the law would cause uncertainty and prolonged litigation, which

would not be appropriate considering the importance of speech in

the context of elections.26

      ¶98    A      discussion      of     purely        facial      constitutional

challenges and as-applied constitutional challenges demonstrates
why the modified facial approach is appropriate in this case.                         A

purely facial challenge requires that the party challenging the

law     prove,      beyond    a   reasonable       doubt,     that      the   law     is

unconstitutional under all circumstances.27                    "If a challenger

      24
       Wash. State Grange,                552     U.S.   at   449       n.6   (quoting
Broadrick, 413 U.S. at 615).
      25
           Citizens United, 558 U.S. at 333.
      26
           Id. at 333-35.
      27
           Wood, 323 Wis. 2d 321, ¶¶13, 15.

                                          10
                                                                 No.    2012AP1652.npc


succeeds in a facial attack on a law, the law is void 'from its

beginning to the end.'"28        Furthermore, in considering a purely

facial    constitutional    challenge,       we   presume   that        the   law   is

constitutional.29

     ¶99     An   as-applied    challenge,        in   contrast,         determines

whether a law violated the constitutional rights of a particular

person under the facts presented.30           "Under such a challenge, the

challenger must show that his or her constitutional rights were

actually violated. If a challenger successfully shows that such

a violation occurred, the operation of the law is void as to the

party     asserting   the   claim."31        Therefore,     in     an    as-applied

challenge, a court should not presume that the statute has been

applied in a constitutional manner.32




     28
       Id., ¶13 (quoting State ex rel. Comm'rs of Pub. Lands v.
Anderson, 56 Wis. 2d 666, 672, 203 N.W.2d 84 (1973)).
     29
          See id., ¶15.
     30
          Id., ¶13.
     31
          Id.
     32
       This statement is supported by Tammy W-G. v. Jacob T.,
2011 WI 30, ¶49, 333 Wis. 2d 273, 797 N.W.2d 854, in which we
stated, "[T]he analysis that is employed for an as-applied
challenge contains no presumption in regard to whether the
statute was applied in a constitutionally sufficient manner."
Similarly, we have explained that "[w]hile we presume a statute
is constitutional, we do not presume that the State applies
statutes in a constitutional manner."    Soc'y Ins. v. Labor &
Indus. Review Comm'n, 2010 WI 68, ¶27, 326 Wis. 2d 444, 786
N.W.2d 385.

                                        11
                                                                No.   2012AP1652.npc


      ¶100 The majority opinion's claim that it is treating this

challenge as a purely facial challenge upsets the well-drawn

distinction   between   purely      facial    and   as-applied          challenges.

Treating this as a purely facial challenge is not appropriate

because the plaintiffs do not actually allege that Act 23 is

unconstitutional under all applications.               They acknowledge that

the   photo   identification     requirements       of    the     law    could    be

constitutionally   applied     to   any     eligible     Wisconsin       voter    who

already possesses Act 23-compliant identification.33                    Instead of

making a purely facial challenge, the plaintiffs argue that Act

23 presents a severe burden on a substantial number of eligible

voters.

      ¶101 Similarly,   because       the     challenge     here        alleges    a

potential burden to hundreds of thousands of eligible voters,34



     In the context of the modified facial challenge approach,
some    scholars    have    suggested    the    presumption  of
constitutionality that applies to purely facial challenges has
no application to the First Amendment overbreadth doctrine.
Michael C. Dorf, Facial Challenges to State and Federal
Statutes, 46 Stan. L. Rev. 235, 261-283 (1994) ("Thus, when the
court considers the overbreadth challenge, applying the Salerno
presumption entails judging the litigant by an unconstitutional
rule of law——unconstitutional because, at least for the time
being, it chills the behavior of third parties.").
      33
       The circuit court found that "[t]he majority of Wisconsin
voters, some 80%, possess a driver's license that meets the
Photo ID requirements of Act 23."      This means that Act 23
operates constitutionally in regard to the approximately 80% of
Wisconsin voters who face little or no burden in complying with
the law's identification requirements.
      34
       The circuit      court found that approximately 333,276
eligible voters in      Wisconsin lack identification that would
comply with Act 23.

                                      12
                                                                      No.    2012AP1652.npc


it is inappropriate to require that each affected individual

bring    an    as-applied     challenge.             While     the   exact     number   of

individuals without identification                    who    would be substantially

burdened or unable to obtain identification is not established,

requiring an as-applied approach would mean that each burdened

individual or group of individuals would have to challenge Act

23 separately.         This would lead to an unnecessarily large volume

of litigation that would take a substantial amount of time and

resources to conclude.              Requiring that individuals bring as-

applied       challenges     would       perpetuate         uncertainty       about     the

application      of    the   law    to    different         groups   and    could     strip

individuals with unresolved but meritorious cases of the right

to vote at election time.

    ¶102 This court should look to the United States Supreme

Court's modified facial challenge approach, which stems from the

First    Amendment      overbreadth       doctrine      because      it     fits   equally

well in the election regulation context.                       As I have previously

discussed, this approach makes sense because of the problems
associated with treating the plaintiffs' challenge to Act 23 as

either a purely facial challenge or as an as-applied challenge.

    ¶103 In       addition     to    these         practical    reasons,      a    modified

facial    challenge      approach        to   laws    that     allegedly      burden    the

right to vote is justified because of the importance of the

right as well as the Anderson/Burdick framework in which voting

regulations      are     analyzed.35           When     a    voting       regulation     is

    35
       See Dorf, supra note 32, at 264-68 (discussing                                   the
potential application of the overbreadth doctrine to                                    all
fundamental rights).

                                              13
                                                                            No.   2012AP1652.npc


challenged as unconstitutional because of an alleged chilling

effect on a large number of eligible voters, the challengers

should not be required to prove that the law is invalid in all

circumstances.        This is due to the significance of the right,

which requires a court to fully consider the challenge and the

record     before    it     to    carefully            and   fully    analyze       the   voting

restriction         under        the        Anderson/Burdick           framework,         which,

depending on the severity of the burden imposed, may require the

use of a heightened level of scrutiny.                        In other words, a purely

facial challenge approach is unnecessarily rigid and simply does

not recognize the fundamental importance of the right to vote.

Therefore,     under        a     modified         facial      challenge          approach,    I

evaluate whether a substantial number of Act 23's applications

are   unconstitutional            "judged         in     relation      to     the    statute's

plainly legitimate sweep."36

  II.      PROPER APPLICATION OF THE ANDERSON/BURDICK BALANCING TEST

      ¶104 I     agree           with       the        majority      opinion37       that     the

plaintiffs' challenge to Act 23 must be evaluated under the
balancing test set forth in Anderson38 and Burdick.39                                Under the

Anderson/Burdick          test,         a    court       addressing     a     constitutional

challenge to a voting regulation weighs the benefits and the

burdens of the particular regulation at issue.40                             Not all voting
      36
           See Wash. State Grange, 552 U.S. at 449 n.6.
      37
           Majority op., ¶¶27-34, 40.
      38
           Anderson, 460 U.S. 780.
      39
           Burdick, 504 U.S. 428.
      40
           Anderson, 460 U.S. at 789.
                                                  14
                                                               No.    2012AP1652.npc


regulations are subject to strict scrutiny.41                Instead, the level

of judicial scrutiny that a court applies to a challenged voting

regulation depends on the severity of the burden imposed by that

regulation.42      Therefore, a court must first consider the burden

imposed     by    the   voting    regulation     under   review.         A     voting

regulation that imposes a severe burden is constitutional only

if   it    is    narrowly   tailored    to     achieve   a    compelling       state

interest.43      On the other hand, a voting regulation that does not

impose a severe burden on voters will be found constitutional as

long as it is reasonably related to a governmental interest.44

      ¶105 Although         the     majority     opinion      cites       to      the

Anderson/Burdick        balancing    test,45    it   does    not     engage     in   a

straightforward application of the framework.                  Rather, instead

of directly discussing the cost burden imposed by Act 23, as

evidenced by the record, it unnecessarily considers whether the

fees associated with obtaining a certified copy of a Wisconsin

      41
           See Burdick, 504 U.S. at 433.
      42
           Id. at 434.
      43
           Id.
      44
       See id. (citing Anderson, 460 U.S. at 788).          The
Anderson/Burdick test, which I apply, is consistent with this
court's precedent.    Prior Wisconsin Supreme Court cases that
have evaluated election regulations have not identified the
level of scrutiny that this court should apply, nor do these
cases directly engage in a balancing test. More typically, this
court has considered whether the election regulation under
review was reasonable.    See also State ex rel. Van Alstine v.
Frear, 142 Wis. 320, 337, 125 N.W. 961 (1910) (citing State ex
rel. Runge v. Anderson, 100 Wis. 523, 533-34, 76 N.W. 482
(1898)); Baker, 38 Wis. at 87.
      45
           Majority op., ¶¶27-34, 40.

                                        15
                                                                  No.    2012AP1652.npc


birth certificate, a requirement to obtain a free identification

card for voting purposes, function as an unconstitutional poll

tax.

       ¶106 The discussion of poll tax case law is misplaced for

two reasons.        First, the plaintiffs did not challenge Act 23 as

an unconstitutional de facto poll tax; therefore, this issue was

not    briefed     or     argued    by   the       parties.     Second,       and     more

importantly,        the    plaintiffs'       challenge,        brought       under    the

Anderson/Burdick          framework,     requires      this    court    to    carefully

evaluate the cost burden that Act 23 places on eligible voters.

The Anderson/Burdick framework, rather than poll tax analysis,

is appropriate because the photo identification requirements at

issue are related to election qualifications.46                          In contrast,

poll tax analysis is appropriate when the cost imposed on voters

is not related to voter qualifications.47                 By evaluating the cost

burden through the framework of poll tax cases, the majority

opinion conflates two separate types of analysis and fails to

consider       sufficiently        the   cost       burdens,    which        are     well-
established by the record, under the Anderson/Burdick balancing

test.       Although the majority concludes that the costs associated

with        obtaining     Act   23-compliant          identification         impose     an

unconstitutional de facto poll tax that results in a severe

burden,       it   improperly      crafts      a    remedy,    which     purports      to


       46
       See League of Women Voters v. Walker, 2014 WI 97, ¶¶4-5,
__ Wis. 2d __, __ N.W.2d __.
       47
            See Crawford, 553 U.S. at 189; see also Harper, 383 U.S.
at 670.

                                            16
                                                                            No.    2012AP1652.npc


alleviate         the     burden       by    eliminating          the    cost     of    certified

Wisconsin         birth    certificates            under    some       circumstances.          This

remedy allows the majority to conclude that the burdens of Act

23 are minimal.                By applying poll tax analysis and by crafting

this remedy in the midst of the Anderson/Burdick framework, the

majority has unnecessarily muddled an otherwise straightforward

and tested analytical framework.

       ¶107 Even          if    I   were      to    assume     that      poll     tax    analysis

applied      to    this        case,    I    am    not    persuaded       that    the     majority

opinion's         remedy        cures       the     unconstitutionality           of     Act     23.

Anyone who thinks Act 23's constitutional problem is that it

creates a de facto poll tax should want to guarantee that such a

de facto poll tax is not imposed on any eligible voter.                                          The

majority concludes that Act 23 imposes a de facto poll tax;

however, there is no support in the law for the proposition that

a court may leave to the discretion of a governmental agency

whether to approve an exception to a poll tax.                               If the majority

leaves in place the discretion of DMV administrators to issue or
refuse to issue Act 23-compliant identification where a fee is

required      for       supporting          documents,48          it    fails     to     guarantee

constitutional protections against poll taxes.                              Such an approach

also    leaves       the       potential          for    future    litigation          brought   by

individuals who were denied the exception.                                  This leaves the

constitutionality              of   Act     23     unsettled      unless    the        legislature

acts to repair this defect.



       48
            See majority op., ¶¶67, 70.

                                                    17
                                                                         No.     2012AP1652.npc


       ¶108 If,      however,      the     majority       opinion       is   requiring       DMV

administrators to issue photo identification to individuals who

cannot      afford    to      obtain       underlying         documentation,49          it    is

directing a non-party to take specific action, which it cannot

do.
       ¶109 Therefore,            rather     than        relying    on        the     majority

opinion's poll tax analysis, I would                      apply the well-established

Anderson/Burdick framework, which requires the conclusion that

Act    23    places     a    severe      burden     on    a    substantial          number    of

eligible Wisconsin voters.                 The severity of the burden dictates

that    this    court       may   uphold     Act    23     only    if    it      is   narrowly

tailored to achieve a compelling governmental interest.                                      The

record demonstrates that Act 23 is not narrowly tailored to the

state's goals of reducing voter fraud or increasing the public's

confidence in elections because the Act is unlikely to further

either of these goals in any meaningful way.                            Therefore, Act 23

is unconstitutional.

                 A. THE BURDENS IMPOSED BY ACT 23 ARE SEVERE

       ¶110 The plaintiffs allege that the costs, time, and effort

associated       with       obtaining        an     Act       23-compliant            form    of

identification        impose       a   significant        burden    on       a   substantial

number of eligible Wisconsin voters.                       I agree with the circuit

court that these burdens are severe.



       49
            See majority op., ¶7, ¶7 n.5.

                                             18
                                                                 No.   2012AP1652.npc

     1. A SUBSTANTIAL NUMBER OF ELIGIBLE WISCONSIN VOTERS LACK ACT
                        23-COMPLIANT IDENTIFICATION

      ¶111 The circuit court found that "[a] reasonable, reliable

and accurate estimate of the number of people eligible to vote

in Wisconsin who do not have a form of identification that would

permit them to vote under Act 23 is 333,276."50                  Before reaching

this conclusion, the circuit court heard the expert testimony of

Professor Kenneth R. Mayer, the plantiffs' expert, as well as

the testimony of Professor M.V. Hood and Dr. Peter Morrison, who

both served as expert witnesses for the state.

      ¶112 The circuit court found Professor Mayer and Professor

Hood to be qualified experts in terms of establishing the number

of    eligible     Wisconsin     voters      who    lack     Act       23-compliant

identification.       In contrast, the circuit court did not find Dr.

Morrison qualified to give expert testimony on the number of

eligible     voters       in   Wisconsin       lacking       Act       23-compliant

identification.        Although    the      circuit      court   considered      the

testimony    of    both    Professor   Mayer       and   Professor      Hood,    the

circuit    court   ultimately     relied     on    Professor       Mayer's   expert

testimony.




      50
       The circuit        court opinion carefully explained how it came
to this conclusion        and described the data upon which it relied.
In reviewing this         data, it appears that a mathematical error
occurred and that         the number of estimated eligible Wisconsin
voters who lack           Act 23-compliant identification should be
333,296.

                                       19
                                                                         No.    2012AP1652.npc

       ¶113 As the majority opinion correctly states, this court

will uphold a circuit court's findings of fact unless they are

clearly erroneous.51              The circuit court's reliance on Professor

Mayer's estimate that 333,276 eligible Wisconsin voters lack Act

23-compliant identification was not clearly erroneous.

       ¶114 Professor Mayer utilized the "exact-match" method to

estimate the number of registered voters who lacked Act 23-

compliant identification.                Under this method, Professor Mayer

matched       the    records      of   registered        voters      appearing       in    the

Statewide Voter Registration System (SVRS), maintained by the

Government          Accountability        Board         (GAB),       with      records      of

individuals listed as having either a Wisconsin driver's license

or     a    Wisconsin          identification          card     in   a      Department      of

Transportation           (DOT)    database.        The        comparison       of   the   SVRS

database with the DOT database allowed Professor Mayer to form

an initial estimate of the total number of registered voters who

lack        two     of     the     primary        forms        of    Act       23-compliant

identification.            Professor Mayer also estimated the number of

non-registered, but otherwise eligible, voters who lacked proper

identification           and     the   number     of    individuals         who     possessed

student,      tribal,      or     military    identification          that      would     allow

them to vote under Act 23.



       51
       Majority op., ¶21 (citing State v. Arias, 2008 WI 84,
¶12, 311 Wis. 2d 358, 752 N.W.2d 748).

                                             20
                                                                     No.    2012AP1652.npc

       ¶115 Professor Mayer's estimates controlled for individuals

who appeared in the DOT database but who had either moved out of

state or who had passed away.               For example, he utilized census

data from the American Community Survey (ACS) to estimate that

277,000     individuals      listed    as    having       a    Wisconsin          driver's

license in DMV records had moved out of state.                       Professor Mayer

also relied on a sample of obituaries and the rate at which

licenses and identification cards expire each year to determine

that     approximately      114,690    individuals            listed       in   the   DOT

database as having photo identification are actually deceased.

Finally,        Professor     Mayer    removed      duplicate              listings     of

individuals who appeared in the DOT database as having both a

driver's license and a state identification card.

       ¶116 Professor Mayer presented clear and concise testimony

that relayed his expert report findings to the circuit court.

These findings pointed out a variety of imperfections with the

DOT    database     upon    which   Professor      Mayer       and    Professor       Hood

relied.         In contrast to Professor Mayer, Professor Hood was

unable     to    provide    an   estimate     of    the       number       of     eligible

Wisconsin voters who lack Act 23-compliant identification.                              In

reference to relying on Professor Mayer instead of Professor

Hood, the circuit court logically explained that Professor Hood

did not "adequately explain or justify [his] conclusion that the

Wisconsin       data   available,     when    evaluated         using       the     'exact


                                        21
                                                                            No.    2012AP1652.npc

[m]atch' method was not sufficiently reliable to estimate the

number of eligible voters who lack the required Photo ID."

      ¶117 Furthermore,              the    circuit           court     was       not     clearly

erroneous in finding that the state's other expert witness, Dr.

Morrison, did not "possess sufficient training or experience to

prepare or to offer reliable expert testimony as to election

procedures       generally       nor,       specifically,             the      proportion        of

persons    eligible       to    vote       in    Wisconsin        who    lack      a    Photo    ID

required    by    Act   23."          The       circuit       court     identified        several

problems    with    Dr.    Morrison's            testimony.           These       included      Dr.

Morrison's       failure        to     consider          a    "significant             source    of

relevant,    reliable      information,               the    SRVS     listing      of    eligible

Wisconsin voters" and his failure to "recognize or take into

account the limitations of the WisDOT data."

      ¶118 Although        the       circuit      court       found     that      an    estimated

333,276     eligible      Wisconsin             voters       do   not    possess         Act    23-

compliant identification, this finding alone does not indicate

the   severity     of     the    burden          that       individuals       would      face    in

obtaining    a    compliant          form   of        identification.             However,      the

record provides ample evidence of the severity of the burden Act

23 imposes.

      2. THE COST INCURRED BY ELIGIBLE WISCONSIN VOTERS OBTAINING
         ACT 23-COMPLIANT IDENTIFICATION IMPOSES A SERVERE BURDEN

      ¶119 The most significant burden that Act 23 imposes on

individuals lacking Act 23-compliant identification is the cost

                                                 22
                                                                    No.   2012AP1652.npc

burden that results from the administrative framework in which

Act 23 operates.            As the majority opinion explains, typically,

an individual must produce a certified copy of his or her                          birth

certificate,       among       other     documents,        to   receive    a    no-cost

identification card for voting purposes.52                      The legislature has

dictated,      under     the   current      administrative        framework,     that   a

certified copy of a Wisconsin birth certificate costs $20.53                         The

majority concludes that the $20 cost of a certified Wisconsin

birth certificate functions as an unconstitutional fee or poll

tax that imposes a severe burden.54                      However, this conclusion

unnecessarily          muddles          poll       tax      analysis      with       the

Anderson/Burdick framework.                In addition, the majority opinion

does    not    fully     address     the    cost     burden     imposed   on    eligible

Wisconsin voters who need to obtain a birth certificate from

another       state    to      obtain      photo     identification       for     voting

purposes.       Finally, the majority opinion does not consider the

severity      of   the      burden     that    Act    23   places    on   naturalized




       52
            See majority op., ¶52 n.12.
       53
            Id., ¶¶14, 61; Wis. Stat. § 69.22(1)(a),(c).
       54
            Majority op., ¶62.

                                              23
                                                              No.    2012AP1652.npc

citizens who are eligible to vote in Wisconsin.55                    In sum, the

majority's remedy does not relieve the cost burden placed on

eligible Wisconsin voters born in other states or countries.

      ¶120 The    circuit   court      found    that     "[t]he    cost   and   the

difficulty of obtaining documents necessary to apply for a DMV

Photo ID is a substantial burden which falls most heavily upon

low   income    individuals."56        The     circuit    court's    finding    is

supported by the record; therefore, it is not clearly erroneous.

      ¶121 The circuit court specifically noted the cost burden

that Act 23 imposed upon several different individuals in its

decision and order.       For example, the experiences of Ruthelle R.

Frank and Ricky T. Lewis indicate that they would be forced to

incur      significant   costs    to   correct     errors     in    their   birth

certificates to obtain       Act 23-compliant photo identification.

At the time Lewis sought photo identification, his affidavit

indicated that his sole income is his fixed veteran's pension of


      55
       One form of Act 23-compliant identification includes a
certificate of naturalization issued "not earlier than 2 years
before the date of an election at which it is presented." Wis.
Stat. § 5.02(6m)(b).      This means that a certificate of
naturalization that is more than two years old cannot be used as
a compliant form of identification at the polls under Act 23.
Therefore, it appears that a naturalized citizen may be required
to obtain another form of Act 23-compliant identification, which
in some cases could require foreign-born individuals to obtain a
foreign certificate of birth.
      56
       The amicus curiae briefs submitted by AARP and Disability
Rights Wisconsin provide convincing arguments that Act 23
disproportionally burdens Wisconsin residents over the age of 65
and Wisconsin residents with disabilities, respectively.

                                       24
                                                                   No.    2012AP1652.npc

$986 per month and that he has no savings.57                  He stated that his

attempts    to   obtain    identification         have     resulted       in    what   he

considered to be "substantial costs."                Additionally, the circuit

court noted that Sequoia Cole's only income is $600 per month in

Social Security benefits, and in her deposition she stated that

the $20 fee for a birth certificate was a burden.

    ¶122 The      record     also       contains     numerous      affidavits          and

depositions from individuals regarding the cost burden that Act

23 imposes.      The majority of these individuals have low incomes.

For example, Ndidi Brownlee's deposition indicates that she has

no savings and that she lives month to month on her income.

Johnnie Garland's affidavit states that she relies on Social

Security    benefits      that   total     $678      per   month     to     cover      her

essential   expenses      and    that    she   was    required     to     pay    $28   to

obtain her birth certificate from another state.                         Kristen Green

was unemployed at the time she obtained photo identification,

and her deposition indicates that she could not afford the extra

bus fare she needed to travel to a DMV office.                     Danettea Lane's

affidavit indicates that she had to pay $20 to obtain her birth

certificate and that she supports herself and her four children

on $608 per month.        In addition, Willie Watson and Eldridge King

both indicated in their depositions that they lived on fixed

amounts of $683 per month and $1000 per month, respectively.

    57
       The circuit court later stated that Lewis' monthly income
was $1021, which it based on his deposition.

                                          25
                                                                   No.    2012AP1652.npc

      ¶123 In Frank v. Walker, the United States District Court

for   the    Eastern     District     of   Wisconsin        recently     considered   a

challenge to Act 23 brought under the Fourteenth Amendment and

the Federal Voting Rights Act.58                 While I do not rely on the

district court's analysis in Frank, the similarities between the

Frank      case   and   this   case   make      many   of    the   district    court's

findings quite persuasive.             In Frank, the district court made

persuasive findings in regard to the cost burden that Act 23

imposes.59        Like the circuit court in this case, the district

court considered the testimony of individuals lacking Act 23-

compliant photo identification to conclude that the cost burden

imposed by the Act is severe.60            The district court concluded,

      [I]n light of the evidence presented at trial, it is
      also clear that for many voters, especially those who
      are low income, the burdens associated with obtaining
      an ID will be anything but minor.         Therefore, I
      conclude that Act 23 will deter a substantial number
      of eligible voters from casting a ballot."61

      ¶124 Based on the record in this case, which is remarkably

similar to the record before the district court in Frank, it was


      58
       Frank v. Walker, No. 2011-CV-1128, slip op. at 1 (E.D.
Wis. Apr. 29, 2014).
      59
       Id. at 31-34. Seven of the eight people who testified in
Frank are low-income individuals and an expert witness who
testified at that trial established that "[a] substantial number
of the 300,000 plus eligible voters who lack a photo ID are low-
income." Id. at 24.
      60
           Id. at 37.
      61
           Id.

                                           26
                                                                       No.   2012AP1652.npc

not clearly erroneous for the circuit court to conclude that Act

23   places       severe       cost   burdens     on    a    substantial      number    of

eligible          Wisconsin        voters       who     lack      Act        23-compliant

identification.

     3. THE TIME AND EFFORT NECESSARY TO OBTAIN ACT 23-COMPLIANT
        IDENTIFICATION CONTRIBUTES TO THE SEVERITY OF THE BURDEN

      ¶125 Contrary to the majority opinion, I conclude that the

time spent and difficulties encountered by individuals trying to

obtain      Act      23-compliant      identification          are     significant     and

contribute to the severity of the burden.62                          The fact that the

majority of the plaintiffs in this case eventually obtained a

photo identification card for voting purposes does not mean that

no burden exists.63            This is because the burden analysis requires

the court to consider the time spent, the obstacles encountered,

and the costs paid in obtaining the identification, and not

merely the end result of these efforts.

      ¶126 Here, the circuit court found, "Procuring a DMV Photo

ID   can    easily        be   a   frustrating,       complex,    and    time-consuming

process."          It     further     concluded       that    "[t]he     cost    and   the

difficulty of obtaining documents necessary to apply for a DMV

Photo      ID   is    a    significant      burden      upon     the    opportunity     of

Wisconsin citizens to vote."



      62
           See majority op., ¶¶41-48.
      63
           See id., ¶42.

                                            27
                                                                       No.    2012AP1652.npc

       ¶127 The circuit court relied on affidavits and depositions

from   numerous       individuals         who    described       the   time     spent      and

difficulties incurred in obtaining or attempting to obtain Act

23-compliant identification.                    In its decision and order, the

circuit     court     specifically         relied       upon     the    experiences         of

Ruthelle R. Frank and Ricky T. Lewis who each had frustrating

experiences      in    attempting          to     obtain       photo    identification.

Errors     on    birth       certificates         caused        this    difficulty         and

prevented both individuals from obtaining photo identification.

Lewis estimated in his deposition that he spent 10 to 15 hours

attempting to obtain identification.                       The circuit court also

relied upon the experiences of Sequoia Cole, Brittany Cramer,

and    Joel     Torres       who    all     explained       that       obtaining       photo

identification        took    a    substantial         amount    of    time——up       to   6.5

hours in one case.            A majority of the individuals cited by the

circuit court made multiple trips to DMV service centers and

other state agencies in attempting to obtain Act 23-compliant

photo identification.

       ¶128 In addition to the individuals cited in the circuit

court's decision, the record also contains a number of other

affidavits and depositions that describe the time and difficulty

burden that Act 23 imposes.                 For example, Ndidi Brownlee spent

several hours traveling to and then waiting at the DMV.                               Cheryl

Edwards'      affidavit      states    that      she    spent     roughly      nine    hours

assisting       family       members        who        needed     to     obtain        photo
                                             28
                                                                     No.    2012AP1652.npc

identification for voting purposes.                     Kristen Green's affidavit

indicates that she made multiple trips to the DMV to obtain

photo identification and that her combined trips totaled almost

five hours.          Danettea Lane's affidavit states that she spent

nearly 10 hours during the process of obtaining identification.

Mary McClintock, who uses a wheelchair, was required to arrange

special transportation and spent approximately nine hours in the

process of obtaining identification.                     The record also reflects

that    Jennifer       Platt's      trip    to    the     DMV   took       three    hours.

Speciall Simmons stated in his affidavit that it took him three

hours       to     obtain     identification.              Willie      Watson        spent

approximately        four    hours    arranging       transportation         that     would

allow him to apply for identification.                     John Wolfe's affidavit

and deposition testimony indicated that the closest DMV was 30

to 40 miles out of his way.

       ¶129 As the previous discussion demonstrates, the record

fully supports the circuit court's conclusions pertaining to the

time, effort, and difficulty burdens.                      Therefore, the circuit

court's determination that the difficulties imposed by Act 23

result in a severe burden was not clearly erroneous.

       ¶130 In      coming    to    the    opposite      conclusion,       the     majority

opinion notes that photo identification is part of the reality

of   daily       life.64     This    may   be    true;    however,     that      does   not


       64
            Id., ¶44.

                                            29
                                                                 No.    2012AP1652.npc

diminish the burdens that Act 23 imposes on individuals who

accomplish       their    daily    responsibilities       without      any   form   of

photo identification that would meet the requirements of Act 23.

In   Frank,      the    United    States   District    Court     for   the   Eastern

District of Wisconsin addressed the impact that Act 23 has on

individuals who currently conduct their daily lives without any

form of Act 23-compliant identification.65                     The district court

stated,

      [A] person whose daily life did not require possession
      of a photo ID prior to the imposition of the photo ID
      requirement is unlikely to derive any benefit from
      possessing a photo ID other than the ability to
      continue voting.   Yet that person must pay the same
      costs——in the form of the hassle of obtaining the
      underlying documents and making a trip to the DMV——as
      the person who obtained the ID for driving.66

      ¶131 The         district   court    in    Frank,    relying     on    the

testimony of numerous individuals lacking Act 23-compliant

identification, also specifically considered the time and

difficulty       burden    imposed   by    Act   23.      In   doing   so,   it

considered the number of DMV service centers in the state

and noted that only two centers in the entire state are

open past 5 p.m. and that only one DMV service center in




      65
       Frank v. Walker, No. 2011-CV-1128, slip op. at 11 (E.D.
Wis. Apr. 29, 2014).
      66
           Id.

                                           30
                                                                No.    2012AP1652.npc

the state is open on the weekend.67                   This fact led the

district    court    to   conclude   that    individuals      will     likely

have to take time off of work and forfeit hourly wages to

obtain a voter identification card from a DMV center during

business hours.68         If an individual is required to obtain

underlying documents from other state agencies, then the

amount of time and lost wages increases.69

     ¶132 The       district   court   also        heard   testimony       that

indicated that not all DMV centers are accessible by public

transportation.70         In reaching its conclusion that Act 23

imposes severe burdens on individuals, it considered these

transportation      difficulties     especially       in   light      of   low-

income    Wisconsin    residents     who    rely    primarily    on    public

transportation.71




     67
       Id. at 30.   The amicus brief submitted by Institute for
One Wisconsin similarly explains that "the DMV services centers
are open for limited hours. Indeed, 41 are open just two days
each week, seven are open just a few hours for one day each
month, and three are open just one day every quarter."
     68
          Id.
     69
          Id. at 31.
     70
       Id.    Disability Rights Wisconsin's amicus brief also
notes transportation difficulties for eligible Wisconsin voters
living with disabilities as well as eligible voters living in
rural areas.
     71
          Id. at 30.

                                       31
                                                                          No.     2012AP1652.npc

     ¶133 The majority opinion's reliance on the Crawford72

decision's       discussion        of    the        time     required       and     other

obstacles       faced,    such      as   "life's           vagaries,"73      fails     to

convince me that the circuit court's findings were clearly

erroneous.       The majority opinion cites to Crawford for the

proposition that trips to the DMV and other difficulties

suffered    to       obtain    a    voter      identification           card       cannot

constitute       a    severe       burden.74          However,        the       majority

opinion's       selective      reliance         on     portions       of        Crawford

ignores the fact that the United States Supreme Court was

satisfied that the affidavit exception75 to Indiana's voter

ID   law    alleviated         some      of     the         burdens     of        "life's

vagaries."76         In addition, the majority opinion ignores the

following language from Crawford,

     Both evidence in the record and facts of which we may
     take judicial notice, however, indicate that a

     72
          553 U.S. 181 (2008).
     73
          Majority op., ¶43.
     74
          Id.
     75
       The Indiana voter identification law provides that "[a]
voter who is indigent or has a religious objection to being
photographed may cast a provisional ballot that will be counted
only if she executes an appropriate affidavit before the circuit
court clerk within 10 days following the election."    Crawford,
553 U.S. at 186 (2008) (citing Ind. Code Ann. §§ 3-11.7-5-1
(West Supp. 2007), 3-11.7-5-2.5(c) (West 2006)). In contrast to
the Indiana voter identification law, Act 23 provides no such
affidavit exception.
     76
          Id. at 197-98.

                                               32
                                                               No.    2012AP1652.npc

     somewhat heavier burden may be placed on a limited
     number of persons. They include elderly persons born
     out of State, who may have difficulty obtaining a
     birth certificate; persons who because of economic or
     other personal limitations may find it difficult
     either to secure a copy of their birth certificate or
     to assemble the other required documentation to obtain
     a state-issued identification; homeless persons; and
     persons   with   a   religious   objection  to   being
     photographed. If we assume, as the evidence suggests,
     that some members of these classes were registered
     voters   when   SEA   483    was   enacted,  the   new
     identification requirement may have imposed a special
     burden on their right to vote.77

     ¶134 In sum, both the record in this case and the

Frank decision support the circuit court's finding that the

time, effort, and difficulty burden that Act 23 imposes is

severe.

    B. ACT 23 IS NOT NARROWLY TAILORED TO ACHIEVE ANY COMPELLING
                             STATE INTEREST

     ¶135 The      circuit    court's    finding      that    Act    23   places   a

severe    burden   on   a    substantial     number    of    eligible     Wisconsin

voters who lack Act 23-compliant identification must be upheld;

therefore, the Act is constitutional only if it is narrowly

tailored to achieve a compelling state interest.78

     ¶136 The state asserts that Act 23 has two primary and

compelling    benefits:       the   reduction    of    voter    fraud      and   the

     77
       Id. at 199 (emphasis added) (footnote omitted).
     78
       Burdick, 504 U.S. at 434.     As previously discussed, the
majority opinion interprets administrative rules to craft a
remedy that attempts to reduce the burden placed on voters.
This does not follow from the Anderson/Burdick framework.
Because of the majority opinion's approach, it concludes that
rational basis scrutiny applies. See majority op., ¶¶72-80
(discussing the benefits of Act 23).

                                        33
                                                              No.   2012AP1652.npc

increase of voter confidence in the outcome of elections.                      In

considering these alleged benefits, the circuit court found that

"[t]he Photo ID requirements of Act 23 are unlikely to protect

the electoral process" and "[t]he Photo ID requirements of Act

23   are   not   narrowly      tailored   to    achieve   a   goal     of   voter

verification."     Specifically, the circuit court found,

      Since 2004, voter fraud investigations have been
      undertaken by the Milwaukee Police Department, by the
      Mayor of Milwaukee and by the Wisconsin Department of
      Justice, working with various county prosecutors
      working through the Attorney General's Election Fraud
      Task Force.    None of these efforts have produced a
      prosecution of a voter fraud violation that would have
      been prevented by the voter ID requirements of Act 23.

     ¶137 Finally, in referencing voter fraud and summarizing

its holding, the circuit court stated,

      Act 23 addresses a problem which is very limited, if
      indeed it exists. It does not appear to recognize or
      to account for the difficulty its demands impose upon
      indigent and elderly citizens who are eligible under
      the constitution to vote.     It offers no flexibility,
      no   alternative   to   prevent  the   exclusion   of   a
      constitutionally qualified voter.     Given the sacred,
      fundamental interest at issue, it is clear that Act
      23, while perhaps addressing a legitimate concern, is
      not   sufficiently    narrow  to  avoid   needless    and
      significant impairment of the right to vote.          The
      enactment steps beyond the proper authority of the
      legislature and is in violation of the Wisconsin
      Constitution, Article III, Section 1.

The circuit court's findings in regard to the lack of benefits

associated with Act 23 and its determination that the Act is not

narrowly tailored to achieve these benefits are supported by the

record,    and   thus,   are    not   clearly   erroneous;     therefore,     the

circuit court's findings must be upheld.
                                34
                                                         No.    2012AP1652.npc

     ¶138 In regard to the allegation that Act 23 reduces voter

fraud, the circuit court heard testimony regarding incidents of

voter fraud and considered the current penalties in place to

deter voter fraud.79      One indication that Act 23 is not narrowly

tailored to reduce voter fraud is that incidents of voter fraud

in general are almost non-existent.         An even greater indication

that Act 23 is not narrowly tailored to prevent voter fraud is

that the photo identification requirements of the Act would not

prevent the types of voter fraud that have been uncovered during

recent investigations.

     ¶139 The circuit court heard testimony from Professor Mayer

regarding a lack of voter fraud in Wisconsin generally as well

as a lack of impersonation voter fraud, which Act 23 is most

likely    to   prevent.    Professor    Mayer   based   his    testimony   on

academic studies of voter fraud, as well as studies conducted in

2004 and 2008 of voter fraud in Wisconsin.              He concluded and

testified that "there is virtually no evidence at all that in-




     79
       Wisconsin statutes criminalize voter fraud as Class I
felonies and impose penalties of up to 3.5 years in prison or up
to a $10,000 fine, or both. See Wis. Stats. §§ 12.13 (governing
various forms of election fraud), 12.60 (detailing the penalty
structure for crimes related to election fraud), 939.50
(outlining the classification structure of felonies).         In
reference to the strict penalties imposed on fraudulent voting,
the district court in Frank stated, "As the plaintiffs'
unrebutted evidence shows, a person would have to be insane to
commit voter-impersonation fraud."    Frank v. Walker, No. 2011-
CV-1128, slip op. at 8 (E.D. Wis. Apr. 29, 2014).

                                   35
                                                                          No.    2012AP1652.npc

person voter impersonation at the polling places occurs with any

frequency, if it occurs at all."

      ¶140 Professor Mayer also reviewed incidents of voter fraud

detected by a 2008 Department of Justice (DOJ) investigation.

The DOJ investigation followed the 2008 presidential election.

As a result of the investigation, the State brought charges in

20 cases of election fraud.                 These charges included eleven cases

of    felons       voting,     two    double       voting     cases,       six      cases    of

misconduct       related      to    voter    registration,          and    one     fraudulent

case of      absentee voting.               This investigation resulted in no

charges of impersonation voter fraud.

      ¶141 Professor               Mayer      testified          that           the     photo

identification requirements of Act 23 would not have prevented

any of the types of voter fraud identified in the 2008 DOJ

investigation.               For     example,         the      photo        identification

requirements of Act 23 would not prevent a felon from voting

because      any    felon    with    Act     23-compliant       photo       identification

could    cast      a   ballot.        In    the    two      cases    of     double-voting,

individuals voted absentee and were also allowed to vote in-

person because of poor record keeping.                          In Professor Mayer's

expert opinion, photo identification would not have prevented

these two individuals from voting in person, since poll workers

had     no      record       that    they      had       already       voted        absentee.

Furthermore,        the   photo      identification          requirements         of   Act   23

would     not      have     prevented        the     cases     of    fraudulent         voter
                                              36
                                                                  No.    2012AP1652.npc

registration        because      there      is     no     photo     identification

requirement to register to vote.

      ¶142      Furthermore,        the    circuit      court     found     that     "a

comprehensive       study   of   voter     attitudes      has    found    that    state

photo      ID   requirements     appear    to    have    no   effect     upon    public

confidence in the process."               In reaching this conclusion, the

circuit     court   relied     on    Professor    Mayer's       January    16,    2011,

report in which he reviewed the findings of the Cooperative

Congressional Election Study (CCES).                    Professor Mayer's report

explains a study of the CCES, which stated, "ID laws will have

little or no effect on the confidence in the electoral system or

the belief in the incidence of fraud.                   Those beliefs . . . are

not different when a stricter ID law is in place and enforced

than when less invasive voter-authentication methods are used."

There is nothing in the record that disputes Professor Mayer's

interpretation of the CCES or the circuit court's finding that

Act 23 does not increase voter confidence in election outcomes.

      ¶143 The majority opinion asserts that the "State has a

significant and compelling interest in protecting the integrity

and reliability of the electoral process, as well as promoting

the   public's      confidence      in    elections."80         However,    both    the

majority opinion and the record in this case fail to demonstrate

how Act 23's photo identification requirement promotes either of


      80
           Majority op., ¶73 (citing Crawford, 553 U.S. at 196).

                                           37
                                                                  No.   2012AP1652.npc

these state interests in any meaningful way.                  Therefore, I agree

with the circuit court's findings that Act 23 is not narrowly

tailored to the State's interests of decreasing voter fraud or

increasing public confidence in the outcome of elections.                         The

result is that Act 23 is unconstitutional.

                               III. THE PROPER REMEDY

      ¶144 Consideration         of   the     proper   remedy     is    appropriate

after considering the burdens of Act 23, the applicable level of

judicial scrutiny, and the benefits of the Act.                   In the midst of

discussing the Anderson/Burdick framework, however, the majority

opinion interprets administrative rules in a way that allows for

an exception to the cost of obtaining a certified copy of a

birth certificate for some individuals.                     There is no dispute

that a court must determine whether legislation challenged as

unconstitutional         may    be    interpreted      in     a   way     to   avoid

invalidation.81         However, the majority's approach is absolutely

contrary to the role of this court and essentially invades the

legislative function because it is not actually interpreting Act

23, the challenged legislation, in a way that cures the Act's

unconstitutionality.           Instead, the majority reaches outside of

the        challenged      legislation          and     interprets          existing

      81
       See Crowell v. Benson, 285 U.S. 22, 62 (1932) ("When the
validity of an act of the Congress is drawn in question, and
even if a serious doubt of constitutionality is raised, it is a
cardinal principle that this Court will first ascertain whether
a construction of the statute is fairly possible by which the
question may be avoided.").

                                         38
                                                                No.    2012AP1652.npc

administrative    code    provisions    in    its    attempt     to     salvage     an

unconstitutional Act.       This approach results in a direction to

an administrative agency that is not a party in this case.                         The

majority cites no authority that supports this novel approach.

     ¶145 The    majority    opinion    directs      DMV   administrators           to

deem any document requiring a payment to a government agency

"unavailable" for purposes of the Wisconsin Administrative Code

§ Trans    102.15(3)(b)    exception.82        The   majority         may   also    be

directing DMV administrators to accept an individual's written

petition for the exception.83      Either approach involves directing

a non-party.

     ¶146 The conclusion that the majority opinion cannot direct

agency    administrators    who   are       non-parties    to     this      case    is

supported by Wisconsin civil procedure and our case law.                           For

example, Wis. Stat. § 801.05 governs personal jurisdiction and

provides that a court has "jurisdiction over a person served in

an action . . . ."84      This court has explained,


     A summons serves two purposes.     First, a summons
     provides notice to the defendant that an action has
     been commenced against the defendant. Indeed, notice
     that apprises a party of the pendency of an action
     against it and affords the opportunity to present
     objections is regarded as "[a]n elementary and
     fundamental requirement of due process." Second,

     82
          Majority op. ¶¶69-70.
     83
          Majority op., ¶¶7, 7 n.5, 70.
     84
          Wis. Stat. § 801.05.

                                       39
                                                            No.    2012AP1652.npc

    consistent with Wis. Stat. §§ 801.05 and 801.11, a
    summons confers personal jurisdiction on a court over
    the defendant served.85

In addition, "[i]f a person is not named in a lawsuit, that

person is a stranger to the court and cannot be bound by it."86

These are essential principles governing jurisdiction that the

majority    opinion     fails    to     consider     when       directing      DMV

administrators to take action.             The issue of directing a non-

party to exercise discretion or to take action is not a "straw

man,"87 but rather it involves basic principles of jurisdiction

and civil procedure.

    ¶147 The majority's approach is also inconsistent with how

courts   typically    interact   with      administrative   agencies.          For

example, courts tasked with reviewing agency actions must adhere

to strict statutory guidelines that allow the court to maintain

subject matter jurisdiction.88          No court, including our court,

has any authority to direct action by an administrative agency

unless   that   court   has   jurisdiction      to   do   so.      We   have   no

jurisdiction to act here as the majority attempts to do so.

    85
       Johnson v. Cintas Corp. No. 2, 2012 WI 31, ¶24, 339 Wis.
2d 493, 811 N.W.2d 756 (citations omitted).
    86
       Bulik v. Arrow Realty, Inc. of Racine, 148 Wis. 2d 441,
444, 434 N.W.2d 853 (Ct. App. 1988).
    87
         Majority op., ¶71 n.17.
    88
       See Wis. Stat. § 227.53; see also Schiller v. DILHR, 103
Wis. 2d 353, 355, 390 N.W.2d 5 (Ct. App. 1981) (citing Kegonsa
Joint Sanitary Dist. v. City of Stoughton, 87 Wis. 2d 131, 274
N.W.2d 598(1979)).
                                      40
                                                                         No.      2012AP1652.npc

     ¶148 Contrary to the majority opinion, I conclude that the

appropriate       remedy      is     invalidation          of    Act        23.        If    the

legislature chooses, it may enact a constitutional version of

Act 23 considering the administrative framework in which the Act

functions——that         is,   one     that       does   not      severely         burden      any

eligible Wisconsin voter.                 To avoid the unconstitutionality of

the majority's remedy and put in place a voter identification

law that is unquestionably enforceable, the legislature should

look to Indiana's voter identification law, which the United

States Supreme Court upheld in Crawford.                          A clear legislative

directive preserves the essential separation of legislative and

judicial powers that the Wisconsin Constitution requires.89

     ¶149 Constitutional              issues        that        "are        peppered        with

political       perceptions         and   emotionally           laden       views"     require

courts to exercise judicial restraint.90                         This court exercised

judicial restraint in the context of public school funding in

Kudor     v.    Grover,91     and    this    court      should         likewise       exercise

caution    in     its   review       of    Act    23.      This        is    because        voter

identification laws such as Act 23 involve highly politicized

issues that concern complicated matters of public policy.


     89
       Wagner Mobil, Inc. v. City of Madison, 190 Wis. 2d 585,
594 n.4, 527 N.W.2d 301 (1995).
     90
       Kukor v. Grover, 148 Wis. 2d 469, 504, 436 N.W.2d 568
(1989) (addressing a constitutional challenge to public school
funding).
     91
          Id.
                                             41
                                                  No.   2012AP1652.npc

    ¶150 In discussing remedy in Frank the district court came

to a similar conclusion.   The district court remarked,

    The plaintiffs suggest that I could order the
    defendants to allow eligible voters without photo IDs
    to vote without showing an ID or by signing an
    affidavit affirming their identities and lack of an
    ID. However, ordering such relief would be the
    functional equivalent of enjoining the current law and
    replacing it with a new law drafted by me rather than
    the state legislature. . . . To grant this remedy, I
    would need to make a policy judgment as to whether
    eligible voters who do not have IDs should be required
    to sign affidavits of identity before receiving a
    ballot. And, if I found that an affidavit was
    required, I would need to decide what language the
    affidavit should contain. Once I issued this relief, I
    would   have   to  supervise  the   state's  election-
    administration officials to ensure that they were
    properly implementing my instructions. These tasks are
    outside the limited institutional competence of a
    federal court, and therefore I may not rewrite the
    photo ID requirement to conform it to constitutional
    requirements.92

    ¶151 A Wisconsin statute allows unconstitutional portions

of laws to be severed under certain circumstances;93 however,


    92
       Frank v. Walker, No. 2011-CV-1128, slip op. at 39 (E.D.
Wis. Apr. 29, 2014).
    93
       Wis. Stat. § 990.001 states, "In construing Wisconsin
laws the following rules shall be observed unless construction
in accordance with a rule would produce a result inconsistent
with the manifest intent of the legislature: . . . ."
Subsection (11) provides,

    The provisions of the statutes are severable. The
    provisions of any session law are severable. If any
    provision of the statutes or of a session law is
    invalid, or if the application of either to any person
    or circumstance is invalid, such invalidity shall not
    affect other provisions or applications which can be
    given   effect  without   the  invalid   provision  or
    application.

                                42
                                                                         No.    2012AP1652.npc


this remedy is not applicable to Act 23.                          This is because the

unconstitutionality         of    Act   23       is   a    result    of        how    the   law

functions within a greater body of administrative rules.                                     In

other words, there is no portion of Act 23 that could be severed

that would cure the unconstitutionality of the Act.

     ¶152 The      United    States     Supreme           Court    has    explained         that

courts must avoid judicial legislation and should avoid editing

statutory text.94       Furthermore, the Supreme Court has illuminated

three     key   principles       underlying       remedies.95            First,       a   court

should seek to invalidate as little of the legislature's work as

possible.96        Second,       a   court       must      refrain        from       rewriting

unconstitutional      state       laws.97        Third,      a    court    must      consider

legislative intent in attempting to salvage an unconstitutional

law.98

     ¶153 After considering these principles and the inability

of this court to sever a specifically unconstitutional portion

of Act 23 that would save the law, I conclude that the only

applicable remedy is invalidation of Act 23.                         Act 23 functions
within     a    regulatory       framework       established        by     the       Wisconsin

legislature, which imposes a cost for birth certificates.                                     I


     94
       United States v. Nat'l Treasury Emps. Union, 513 U.S.
454, 478-79 (1995).
     95
       Ayotte v. Planned Parenthood of N. New England, 546 U.S.
320, 329 (2006).
     96
          Id.
     97
          Id.
     98
          Id. at 330.

                                            43
                                                                             No.    2012AP1652.npc


agree     with    the       majority       opinion      that    the        legislature             could

eliminate this cost.99                  It could also institute another type of

exception        to    the    Act's       requirements         that        could     lessen          the

severity of the burden imposed on certain eligible Wisconsin

voters, such as the affidavit exception found in Indiana's voter

identification          law.100           However,      it      is     the     role           of     the

legislature and not this court to institute such changes to Act

23 or to the framework in which the Act operates.                                  It is unknown

whether the majority opinion's remedy will function effectively

or how that remedy will be enforced.                             Finally, the majority

opinion's        remedy       fails       to     consider      policy        considerations,

budgetary        constraints,           and     legislative      intent.             It       is     the

legislature           and    not        this    court    that        should        address          the

unconstitutionality of Act 23.

                                          IV.    CONCLUSION

     ¶154 I           cannot        agree        with     the        majority           opinion's

characterization and analysis of the plaintiffs' challenge.                                         The

majority     incorrectly           characterizes        the     challenge          as     a    purely
facial     challenge.              It    fails    to    apply        the     Anderson/Burdick

framework correctly.               It improperly relies on poll tax case law.

Even if I were to assume that poll tax analysis applied, the

     99
           Majority op., ¶62.
     100
        See Crawford, 553 U.S. at 186, 199 (discussing the
affidavit exception to Indiana's voter identification law).
Specifically, part of the affidavit exception to Indiana's voter
identification law allows provisional ballots cast by indigent
voters to be counted if the voter "executes an affidavit before
the circuit court clerk or county election board" in accordance
with statutory requirements.     Ind. Code Ann. § 3-11.7-5-2.5
(West 2011).

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majority's attempt to alleviate the de facto poll tax for some

eligible Wisconsin voters results in an unworkable solution that

fails to cure the unconstitutionality of Act 23.                                   Specifically,

the majority opinion's remedy                      appears to         leave in place the

discretion of DMV administrators to issue or refuse to issue Act

23-compliant         identification              where     a    fee     is        required        for

supporting documents.                If the majority opinion leaves in place

the    discretion       of     DMV      administrators         to    issue     exceptions         to

those        burdened        by       the        cost     of        obtaining           underlying

documentation, it fails to guarantee constitutional protections

against poll taxes.               On the other hand, if the majority opinion

requires DMV administrators to issue photo identification cards

to    individuals       who       are     burdened        by   the     cost        of    obtaining

required underlying documentation, then it is directing a non-

party to take specific action, which it has no authority to do.

In    sum,     the    remedy       imposed        by     the   majority,           under       either

approach, is flawed.                 Furthermore, its remedy impinges on the

legislature's           role         by     interpreting            administrative              code
provisions that are not part of this challenge and by directing

an administrative agency that is not a party to this case.                                          I

urge         the     legislature            to     take        action        to         cure     the

unconstitutionality of Act 23.                     Without such action, the remedy

crafted by the majority leaves Act 23 unconstitutional.

       ¶155 The United States Supreme Court's decision in Crawford

v. Marion County Election Board,101 which upheld Indiana's voter

identification statute, does not persuade me that Act 23 is

       101
             Crawford, 553 U.S. 181.

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constitutional.                  This    is    because          there          are    substantial

differences between this case and the Crawford case.                                   First, the

record in the Crawford case was not nearly as developed as the

record       in    this     case.       This       factor      certainty         influenced     the

Supreme           Court's        decision.102                Second,           Indiana's     voter

identification statute is not as stringent as Act 23.                                          Most

importantly, the Indiana law provides for an affidavit exception

that     allows        certain          individuals           to        vote     without      photo

identification.103               In upholding Indiana's voter identification

law, Justice Stevens' lead opinion commented that the severity

of the burden imposed by the photo identification requirement

"is, of course, mitigated by the fact that, if eligible, voters

without photo identification may cast provisional ballots that

will ultimately be counted."104                     Finally, while Act 23 applies to

both         in-person        and       absentee             voting,           Indiana's     photo

identification            requirements        do    not      apply       to    absentee    voting.

Therefore,          the     Crawford       case         is    neither          controlling      nor

persuasive.
       ¶156 The question of whether Act 23 violates the Wisconsin

Constitution         is     at    the    intersection              of    profound      democratic


       102
        Id. at 200 ("But on the basis of the evidence in the
record it is not possible to quantify either the magnitude of
the burden on this narrow class of voters . . . . [T]he record
does not provide us with the number of registered voters without
photo identification . . . .").
       103
        Id. at 186 (describing the affidavit procedure available
to indigent voters as well as individuals with a religious
objection to being photographed).
       104
             Id. at 199.

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principles: the right of qualified Wisconsin citizens to vote,

as explicitly guaranteed by the Wisconsin Constitution, and the

undisputed principle that the state has a legitimate interest in

safeguarding       the    integrity    of    elections       through      regulations.

Voter identification provisions are one way the state may choose

to protect the legitimacy of elections.                    Such provisions may be

constitutionally imposed even if they severely burden a person's

right to vote, as long as they are narrowly tailored to advance

a     compelling       state   interest.          However,         Act      23's    photo

identification         requirements     severely          burden    eligible       voters

without     being        narrowly     tailored       to     achieve       the      state's

compelling       interests     of   reducing     voter      fraud     and    increasing

voter confidence in the outcomes of elections.                      For that reason,

Act    23   is    an     unconstitutional        election      regulation,         and   I

therefore respectfully dissent.

       ¶157 I     am     authorized    to    state    that     Justice       ANN    WALSH

BRADLEY joins this dissent.




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