Wisconsin Supreme Court says individuals can determine for themselves whether they can avoid the voter ID law because of age or disability

MADISON - The state Supreme Court ruled Monday it is up to Wisconsinites to determine whether they face challenges that allow them to vote absentee without providing a copy of a photo ID.

Under state law, people can vote absentee without showing an ID if they say they are indefinitely confined because of age, disability or infirmity.

Two county clerks this spring contended voters could meet that status because of the coronavirus pandemic and a stay-at-home order issued by Democratic Gov. Tony Evers.

The state Republican Party sued directly with the state Supreme Court and the justices quickly issued an initial order that said the advice from the county clerks was faulty. The clerks rescinded their advice.

In its final decision Monday, the justices concluded it was up to each voter — not clerks or anyone else — to decide when they qualify as indefinitely confined. In addition, they found the pandemic and the stay-at-home order — which has since been struck down — did not render all voters indefinitely confined.

On those points the seven justices were unanimous. But the court’s three liberals dissented on some parts of the majority opinion.

The issue of indefinite confinement was also raised in a lawsuit President Donald Trump brought against election officials after narrowly losing the state to Democrat Joe Biden. 

The state Supreme Court ruled in favor of elections officials and Biden in that case later Monday.

“The plain language of (state law) requires that each elector make an individual assessment to determine whether he or she qualifies as indefinitely confined or disabled for an indefinite period. A county clerk may not 'declare' that any elector is indefinitely confined due to a pandemic,” Chief Justice Patience Roggensack wrote for the majority.

The majority decision stated if voters falsely claimed they were indefinitely confined “their ballots would not count.” But the court did not give license to throw out large numbers of ballots without making determinations about the status of each individual voter, as Trump has sought in his separate lawsuit.

Justice Ann Walsh Bradley dissented from a part of the ruling that said voters could make the determination about being indefinitely confined based only on their own age or disability, rather than the age or disability of someone they are caring for.

Justices Rebecca Dallet and Jill Karofsky dissented in part because they considered part of the majority opinion to be based on “hypothetical voters who are indefinitely confined for hypothetical reasons.”

This spring, about 195,000 voters said they were indefinitely confined — up from 55,000 for the spring election four years earlier. Similarly, about 215,000 voters claimed that status this fall, nearly a four-fold increase from the last presidential election. 

Some Republicans saw the increase as a sign that some voters were trying to get around the voter ID law. But Democrats and some election officials said a large increase wasn't a surprise during a pandemic that put people with certain pre-existing conditions into high-risk categories for COVID-19. They also noted many of the indefinitely confined voters already had an ID on file with their clerk or had shown one in previous elections. 

The case began this spring, after Dane County Clerk Scott McDonell posted a notice online ahead of the April election telling voters they could get absentee ballots without providing an ID by designating themselves indefinitely confined if they were staying in their home because of the pandemic. Milwaukee County Clerk George Christenson issued similar advice.

The state Republican Party sued McDonell and the justices in March ordered McDonell to make sure advice he gave to the public on the issue was in line with guidance from the state Elections Commission.

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.