The lawsuit relies on an unusual legal argument that the legislature can only enact laws that are enumerated in the State constitution, said Barry Burden, a UW-Madison political science professor and expert on elections. If the case goes to trial, Burden said, supporters would argue the photo ID law is necessary to identify those whom the constitution precludes from voting.First of all, the constitution doesn't preclude them from voting; the constitution says that the legislature may preclude them from voting.
Their being precluded from voting is not a constitutional requirement.
But I hope photo ID "supporters" do make that argument, because it's nonsensical. Photo ID neither identifies a person as a felon nor as an incompetent. Obviously election officials would have to make separate inquiries beyond the photo ID in order to determine whether a person was a felon or incompetent. And then further inquiries beyond those in order to determine whether the felon had had her civil rights restored and whether the incompetency — which is a judicial determination made by a presumably competent magistrate — included an exemption for voting or whether the determination of incompetency was reversed.
Which is the way challenges to the eligibility of electors work at the moment. Photo ID can't tell you any of those things. It's just a picture.
Finally, I don't know what's so unusual about the plaintiffs' legal argument. It's actually very clever and seems to me designed to appeal to our self-proclaimed conservatives on the Wisconsin Supreme Court.*
They purport to construe narrowly the admonitions of legal documents, and the constitution allows the legislature to preclude from voting only those two classes of persons: felons and incompetents. Assumedly the plaintiffs chose this route because the current federal law is stacked very much to their disadvantage, as Prof. Fallone so adeptly described.
Either that or, if the case gets that far and the court decides to uphold the American Legislative Exchange Council's photo ID requirement, demonstrating that the so-called conservatives are not conservatives at all, which happens to be an occasionally recurring theme at this space.
* One of whom believes voting is a First Amendment right.