STATE OF WISCONSIN
DEPARTMENT
OF TRANSPORTATION
OFFICE OF THE SECRETARY
|
The Wisconsin
Department
of Transportation proposes an order
to
Renumber
Trans 102.04
(intro.) and
102.15
(1)
;
to
Renumber and Amend
Trans 102.
15
(3)
(a) 2.
(
Note
)
,
(b) and (c); to
Amend
Trans 102.15
(2)
(c) and (3)
(a)
6.,
and (6)
(intro.); and to
Create
Trans 102.04
(2
), 102.14
(1g) and 102.15
(1)
(b), (3)
(d) and (5m)
(title),
(b) and
(e).,
relating to: Operator’s Licenses and Identification Cards
.
|
The scope statement for this rule, SS
080-14
, wa
s approved by the Governor on August 19, 2014
, and published in Wisconsin Administrative
Regist
er No. 704
, on August 31, 2014, under §
227.185
, Stats.
The
Wisconsin Department
of Transportation (Department
)
received the Governor’s written approval of the Final
Draft
Rule on
February 10, 2015
.
Analysis Prepared by the
Department
of
Transportation
Statutes Interpreted
Statutes Interpreted:
343.14
, 343.50
Statutory Authority
Statutory Authority:
85.16(1), 343.02(1), 343.14 and
343.50
Explanation of
Agency
Authority
Wis. Stat. §§
343.14
and
343.50
(4)
specify the contents of applications for identification cards and authorizes the
Department
to require such information as the
Department
considers appropriate to identify the applicant.
Wis. Stat. §
343.50
requires the
Department
to issue identification cards.
Wis. Stat. §
343.50
(5)(a)
3
prohibits the
Department
from charging a fee for an identification card requested by a qualified applicant who requests it free of charge for purposes of voting.
Wis. Stat. §
343.02
(1)
authorizes the
Department
to pro
mulgate such rules concerning identification
cards that the Secretary
of the Department (Secretary)
considers necessary.
Wis. Stat
.
§
85.16
(1)
authorizes
the Secretary of the
Department
to make rules deemed necessary to the discharge of the powers, duti
es and functions vested in the Department
.
Related Statutes and Rules
Wis. Stat. §
343.50
requires the
Department
to issue identification cards.
Trans 102.15, Wis. Adm. Code, requires proof of identification for issuance, renewal, reissuance, reinstatement or duplicate driver license or identification card, and specifies the acceptable documentary proof. That section also establishes a petition process under which an applicant may request an exception to the documentary proof requirements for name and date of birth.
Plain Language Analysis
Background
The
Department
of Transportation, Division of Motor Vehicle
s
(DMV
)
has evaluated the holding in
Milwaukee Branch of
NAACP v. Walker
,
2014 WI 98
,
851 N.W. 2d 262
,
and current statutes
,
and has determined that rulemaking is
appropriate
to harmonize th
e two
.
In that case, the Wisconsin Supreme Court upheld this state’s law that requires presentation of specified identification, including identification
cards issued by the
Department
, as a condition of voting
(commonly referred to as the “Voter ID law”)
.
The C
ourt found that the existing petition process allowed applicants to obtain an identification card required for voting without payment of any fee to a government agency.
This rulemaking is intended to
prescribe the manner in which
DMV can issue ident
i
fication
cards to individuals requesting them free of charge for voting purposes consistent with the holding in
NAACP v. Walker
and current statutes.
T
he
Department
has a petition process that allows identification card applicants to provide secondary proof of name and date of birth in the event a birth c
ertificate is unavailable
.
But
the
Department
does not currently consider
a document that is available upon payment of a fee to a government agency to be ‘unavailable’
for the purpose of using the petition process
.
Rule Content
This rule considers any document that is required to be submitted as part of an application for an identification card requested without charge for voting purposes to be considered ‘unavailable’ if the applicant does not have the document and cannot obtain the document without payment of a fee to a government agency. In such cases, the
Department
will requ
est the applicant provide his or her name, date of birth, place of birth and other birth information. The
Department
will
then
verify that birth information with the Wisconsin
Department
of Health S
ervices
(DHS)
a
nd, if confirmed, will issue th
e identification card. If the birth record information or naturalization information cannot be confirmed, the Administrator of DMV may approve
secondary
documentary proof of name, date of birth and U.S. citizenship.
Section
1
m
specifies that an identification card issued under the petition process must be readily identifiable as non-compliant with the federal REAL-ID law, similar to the treatment of certain driver’s licenses by
§
343.03
(3r)
, Stats.
Section
2 establishes qualifications for issuance of an identification card without charge for voting purposes, and prohibits the
Department
from inquiring further about the applicant’s qualifications to vote.
Section
s
5
and 6
recognize the petition process under proposed Trans 102.15(5m) creates an exception to the documentary proof requirements that ordinarily apply to identification cards.
Section
7 is amended so that an identification card issued without a birth certificate cannot be used as proof of name and date of birth for a driver’s license. The
Department
believes that without this treatment, unlicensed drivers 17 years of age or older who lack a birth certificate could request an identification card free of charge for voting purposes and immediately exchange it for a driver’s license, thereby creating a state burden of birth record verification unrelated to the act of voting.
Section
8
renumbers the existing petition process to a new subsection (5m). The
Department
intends to retain the existing petition process for driver’s licenses and for identification cards that are not requested without charge for purposes of voting.
Section
9
renumbers the autho
rity of the Administrator of
DMV to delegate authority to accept or reject extraordinary proof provided under the petition process, so that delegation will apply to the existing process as well as the petition process to be employed for identification cards requested without charge for voting purposes.
Section
9m
creates a process of approving name changes without requiring the applicant to provide a document that may be available only upon payment of a fee to a government agency. The
Department
will verify the birth record information with the names associated with an individual’s records maintained by the federal social security administration. In this way, the
Department
can verify that an application for an identification card in the name of, for example, John Smith is proper if requested by an applicant who proves only that he was born John Doe.
Section
10
creates a title for the petition process.
Section
11
creates the petition process
to be employed if an applicant requests an identification card without charge for voting purposes does not have the documentary proof ordinarily required for an identification card. Under the
petition
process, the applicant must provide
information sufficient for
DHS
to locate the applicant’s birth
certificate
in this state or in another state. If
DHS
can verify the existence of the birth certificate and the birth record information, the
Department
will issue the identification card
relying on
that information as proof of name and date of birth. If the
DHS
cannot verify that information, the
Department
will notify the applicant that it cannot confirm a birth certificate match for the information supplied by the applicant, and that the
Department
cannot issue an identification card unless the applicant can provide some other documentary proof of establishing his or her name and date of birth. Similarly, the petition process will verify a naturalized applicant’s name and date of birth by verifying federally issued proof of a
United States (
U.S.
)
citizen’s foreign birth, U.S. citizenship and immigration service number, or U.S. citizenship certificate number if those documents are unavailable and can be obtained only upon payment of a fee
to a government agency.
Section
11 also
creates a definition of “unavailable” that applies only to identification cards issued free of charge for voting purposes consistent with the Wisconsin Supreme Court’s decision in
NAACP v. Walker
, par. 69
Section
13 creates a judicial right of review of the petition decision made by the Administrator of DMV, similar to that created by
Wis. Stats
§
343.40
, Stats.
for driver licensing decisions.
Section
14 corrects a cross-reference to a rule renumbered by this rulemaking.
Section
15 states the effective date
of this rule
.
Summary of and Comparison with
Existing or Proposed Federal Statutes and Regulations
Federal law generally does not regulate the issuance of
identification cards by states;
however federal law (the “REAL-ID law”, P.L.
109-13
, section 202 (d) (11)) prohibits the use of state-issued identification cards for purposes of federal identification or any other official federal purpose, such as entering federal buildings or airports, unless the identification card application included federally required documents and the state stored and retained those documents. Federal law requires that identification cards that do not meet those requirements be distinct in appearance from those that do.
There are no federal identification requirements to vote. In general, voting requirements are established by state law.
Comparison with Rules in Adjacent States
Illinois
: Illinois requires applicants for an original identification card or driver’s license to provide documentary proof of signature, date of birth, social security number and residency. Documents acceptable to prove date of birth are original:
Adoption Records;
Birth Certificate; Court Order -- Change of Birth Date;
Certified Grade/High School/College/University Transcript;
U.S. Citizenship and Immigration Services (USCIS) forms; U.S. Visa
Military Driver's License -- U.S.;
Militar
y Identification Card
-- U.S.;
Military Service Record -- DD214;
Naturalization Certificate; Passport -- Valid with Complete Date of Birth;
U.S. Passport Card - Valid with Complete Date of Birth; or
Social Security Award Letter (Primary Beneficiary Only).
92 Ill. Adm. Code 1030 App. B.
Illinois issues
identification c
ards for the
h
omeless at no
cost. Applicants for a no-fee h
omeless
i
dentification card must provide proof of name, date of birth and social security number ordinarily required, but in lieu of proof of address may submit a ‘homeless status certification signed by the homeless applicant before a notary public and attested to by a representative of a homeless service agency that receives public funding; an attorney; a
public school homeless liaison or school social worker; a human services provider funded by the State of Illinois;
or
a representative of a religious organization that offers services to the homeless. 92 Ill. Adm. Code 1030.12;
92 Ill. Adm. Code 1030 App. B.
Iowa
:
An applicant f
or an original driver’
s license or identification card must provide proof of
identity, date of birth, social security number, Iowa residency and current residential address, and lawful status in the United States.
IA ADC 761-601.5(321)
.
To establish identity and date of birth, an applicant must submit at least one of the following doc
uments: a
valid, unexpired U.S. p
assport or U.S. passport card; a
certified copy of a birth certificate and, if applicable, a certified amended birth certificate showing a change in name, date of birth, or sex, filed with a state office of vital statistics or equivalent agency in the applicant's state of birth. The birth certificate must be a certified copy and have the stamp or raised seal of the issuing authority.
A hospital-issued certificate is not acceptable. The following are acceptable:
Consular Report of Birth Abroad issued by the U.S.
Department
of State; a
valid, unexpired Permanent Resident Card issued by the U.S.
Department
of Homeland Security or U.S. Immigration and Naturalization Service;
a
n unexpired employment authorization document issued by the U.S.
Department
of Homeland Security; a
n unexpired foreign passport with a U.S. visa affixed, accompanied by the approved 1-94 form documenting the applicant's most recent admi
ttance into the United States; c
ertificate of Naturalization issued by the U.S.
Department
of Homeland Security; a
Certificate of Citizenship issued by the U.S.
Department
of Homeland Security; a
REAL ID driver's license or
identification card
issued in compliance with the standards
established by
6 CFR Part 37
; s
uch other documents as the U.S.
Department
of Homeland Security may designate as acceptable proof of identity and date of birth for REAL ID purposes by notice publ
ished in the Federal Register; a
n Inmate Descriptor Inquiry, Client Information Inquiry or Offender Snapshot document issued by the Iowa
Department
of corrections or the United States District Court, Northern and Southern Districts of Iowa. The document must contain the applicant's full legal name and date of birth and be notarized.
IA ADC 761-601.5(321)
.
Michigan
:
Michigan requirements for state identification
cards are set forth in statute and do not appear to be
addressed in administrative code. In general, r
esidents applying for a state identification
card must present documentation of a valid
Social Security number
,
U.S. citizenship or legal presence, identification and Michigan residency
. Mich. Comp. Laws Annot.
28.304. Application requirements for a
“Standard official state personal identification card” are set forth at Mich. Comp. Laws Annot.
28.291
to
28.300
.
The following documents are acceptable proof of identity: Out-of-state, U.S. territories, or Canadian driver’s license or ID card, e
xpired for less than one year; m
arriage lice
nse issued in the U.S.; d
ivorce decree issued in the U.S.;
U.S. court order for a name change;
p
hoto ID card issued by a federal or Michigan government agency;
U.S. Customs and Border Protection Trusted Traveler Card ;
U.S. military ID card with photo;
U.S. military discharge or separation documents;
Tribal photo ID card from a federally recognized Native American tribe;
Michigan
Department
of Corrections prisoner ID
card (requires verification);
Michigan driver education certificate
(applicants age 18 and younger); Michigan adoption record;
or
U.S. school records (school ID
cards with name and photo, dipl
omas, transcripts or yearbooks):
If the applicant is below age 18 and does not have one of the above, a parent or guardian must present their driver’s license
or identification card
and sign for the teen.
Minnesota
: Minnesota requires applicants for original driver’s license or identification card to provide documentary proof of date of birth, full legal name, social security number, photographic identity, and U.S. citizenship.
The applicant must present one legible, unaltered, primary document that contains the applicant's full name and date of birth as proof of name, date of birth, and identity, w
hich are described as follows: a
copy of the applicant's record of birth certified by the issuing government jurisdiction of the Un
ited States or U.S. territory; a
certified copy of an adoption certificate with the applicant's full name and date of birth from a United States
court of competent jurisdiction; a
n unexpired identification card issued to the applicant by the United States
Department
of Defense for active duty,
reserve, or retired personnel; a
valid unexpired passport issued to the applicant by the United States
Department
of State; a
n applicant or owner may present a valid, unexpired passport issued to the applicant from a jurisdiction other than the United States
Department
of State with either a United States
Department
of Justice or United States
Department
of Homeland Security Arrival and Departure Form I-94 attached
or an unexpired I-551 stamp;
a Canadian
birth certificate
or Canadian naturalization certificate with a United States
Department
of Justice or a United States
Department
of Homeland Security Arrival and Departure Form I-94 attached, bearing the same name as that on the Canadian
birth certificate o
r Canadian naturalization certificate and containing an unexpired endorsement of the alien's nonimmigrant status or authorized presence;
or
one of the listed documents issued by the United States
Department
of Justice or the United States
Department
of Homeland Security including Certificate of Naturalization, Certificate of Citizenship, United States Citizen
Identification card, Permanent Resident or Resident Alien card, Northern Mariana card, American Indian card, employment authorization document with a photograph, or unexpired Re-entry Permit/Refugee Travel Document.
MN Adm. Code 7410.0400.
Minnesota does grant variances to applicants whose required documentation is not available.
MN ADC 7410.0600.
If a person is unable to comply with the proof requirements of part 7410.0400, the person may make written application to the commissioner of public safety or a designee for a variance.
The applicant must submit written documentation of the reasons why a variance should be granted, including the reasons the required documents are not available. The applicant must provide additional information regarding the applicant's name and identity, such as names of relatives, date and place of birth, place of residence, social security number, military service information, and any arrest information, to aid the commissioner in verifying the applicant's identity. In making a decision to grant or deny the variance, the commissioner or a designee shall consider the following: the availability of the required documents; the degree of hardship placed on the applicant; the effect of granting the variance on the public; the effect of granting the variance on the integrity of the record system; and the trustworthiness of the information supplied by the applicant regarding the applicant's name and identity. The commissioner shall grant the variance if all of the following conditions are present: the documents required by
part 7410.0400
are either not reasonably available or do not exist; compliance with part 7410.0400 would cause an undue hardship for the applicant; granting the variance will have no adverse effect on the public; granting the variance will not jeopardize the integrity of the record system; and the applicant has established the applicant's name and identity by trustworthy evidence and documentation. MN
Adm. Code 7410.0600.
Minnesota does issue
a state identification card at a reduced fee to a qualified applicant with a condition of developmental disability, mental illness, or a physical disability.
MN Adm. Code 7410.0700.
Summary of Factual Data and Analytical Methodologies
To develop this rule, the
Department
reviewed state laws related to issuance of an identification card, its past practice under the existing petition process and the number and facts of exceptions approved to the documentary proof requirements using the petition process.
The
Department
also analyzed the list of documents acceptable to prove name and date of birth and U.S. citizenship under existing Trans 102.15, Wis. Adm. Code, to determine which documents were available without payment of any fee to a government agency, and which of those documents were available to the
Department
without charge to the applicant, particularly those available using existing electronic means of inter-governmental data exchange.
Analysis and Supporting Documents used to Determine Effect on Small Business
Identification cards are issued only to natural persons. The
Department
identified no effect on small businesses related to this rule.
Effect on Small Business
The
Department
anticipates no effect on
small
businesses
as result of this rule. T
h
e
Department
is unaware of any business
that provides assistance in obtaining government documents required to support an applica
tion for an identification card
that will no longer be required for certain applicants under this rule.
Initial Regulatory Flexibility Analysis
This rule is not expected to have an effect on small businesses
.
Economic Impact Analysis
This rule addresses only documentary requirements for individuals wishing to obtain an identification card free of charge for voting purposes. The rule has no di
rect effect on small businesses
and no discernible indirect effects on small businesses. Accordingly, the
Department
anticipates no effect on specific businesses, business sectors, public utility ratepayers, local governmental units, or the state’s economy as a whole. The
Department
did not solicit information or advice from businesses, associations representing businesses, local governmental units. The
Department
also did not solicit information from individuals that may be affected by the proposed rule
(other than the required Public hearing)
, as the
Department
determined the rule had no direct or indirect financial effect on individuals.
DOT Contact
Questions and comments (including hearing comments) related to this rule may be directed to:
Patrick Fernan, Administrator
Division of Motor Vehicles
4802 Sheboygan Ave. Rm. 225
Madison, WI 53707
(608) 261-8605
Where Comments May Be Submitted
Patrick Fernan, Administrator
Division of Motor Vehicles
4802 Sheboygan Ave. Rm. 225
Madison, WI 53707
(608) 261-8605
PERMANENT
RULE
Section
1g. Trans 102.04 (intro) is renumbered Trans 102.04(1).
Section
1
m
. Trans 102.04
(2
) is created to read:
Trans 102.04
(2). A
ny identification card issued based upon extraordinary proof of name, date of birth or U.S. citizenship under Trans 102.15
(5m) shall, in addition to any other legend or label, be marked in a manner consistent with requirements under applicable federal law and regulations to indicate that the identification card is issued in accordance with P.L.
109-13
, section 202 (d) (11), and is not intended to be accepted by any federal agency for federal identification or any other official purpose.
Section
2. Trans 102.14
(1g) is created to read:
Trans 102.14 (1g). The
Department
may not issue an identification card without charge for voting purposes to any person who is not a U.S. citizen or is not age 17 or older. The
Department
may not determine whether a person is otherwise eligible to vote.
Section
5. Trans 102.15
(2)
(c) is amended to read:
Trans 102.15
(2)
(c)
A
Except as provided in sub. (5m), a
person shall provide proof of the person's name and date of birth under sub. (3), of the person's identity under sub. (4), and of the person's residency under sub. (4m), upon the first application for an original, renewal, reinstatement or duplicate operator's license or identification card following:
Section
6. Trans 102.15
(3)
(a)
2.
(
Note
)
is
renumbered Trans 102.15 (3) (a
m)
. and
amended to read:
Trans 102.15
(3)
(a
m
)
Note
:
Neither
Except as provided in Trans 102.15
(5m)
(b)
3
., neither
a hospital birth certificate, a notification of birth registration nor baptismal certificate
satisfies this requirement.
Effective November 1, 1986 s.
69.24 (1) (a)
, Stats., prohibits Wisconsin hospitals from issuing a document which appears to be a birth certificate
is satisfactory proof of a person’s name and date of birth
.
Section
7. Trans 102.15 (3) (a) 6. i
s amended to read:
Trans 102.15
(3)
(a)
6.
A Wisconsin identification card issued under
s.
343.50
, Stats., bearing a photograph of the person
, other than an identification card issued under sub. (5m)
(b)
;
Section
8
. Trans 102.15
(3)
(b) is renumbered Trans 102.15
(5m)
(a) and Trans 102.15
(5m)
(a) (intro.)
and 2.
, as renumbered,
are
amended to read:
Trans 102.15
(5m)
(a)
(intro.)
If
Except as provided in par. (b), if
a person is unable to provide documentation under
par.
(a)
sub. (3)
(a)
,
and the documents are unavailable to the person, the person may make a written petition to the administrator
of the division of motor vehicles
for an exception to the requirements of
par.
(a)
sub. (3)
(a)
.
The application shall include
supporting documentation
proof of identity
required by sub. (4) and:
Trans 102.15
(5m)
(a)
2. An explanation of the circumstances by which the person is unable to provide any of the documents described in
par.
sub (3)
(a); and
Section
9
. Trans 102.15
(3)
(c) is renumbered Trans 102.15
(5m)
(c) and amended to read:
Trans 102.15
(5m)
(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
, or citizenship under this subsection
.
Section
9m
. Trans 102.15
(3)
(d) is created to read:
Trans 102.15
(3)
(d) The administrator
shall
approve a name change requested by a person who cannot provide documentation
under par. (a) 17.
of
a lawful change of name
if the
person provides
proof of identity
specified in sub. (4)
in the new name
, and the
administrator receives from the federal social security administration
evidence or confirmation
of the name change.
Section
10
. Trans 102.15
(5m)
(title) is created to read:
Trans 102.15
(5m)
(title)
Extraordinary proof of name, date of birth, or U.S. citizenship.
Sec
tion
11
. Trans 102.15
(5m)
(b) is created to read:
Trans 102.15
(5m) (b)
1. If a person requests an identification card without charge for the purposes of voting and the person’s
proof of name and date of birth under sub. (3) or of proof of citizenship under sub. (3m)
is unavailable, the person may make a written petition to the administrator for
an exception to the requirement
for which proof is unavailable
. The
petition shall include
the person’s statement under oath or affirmation
:
that the person is unable to provide documentation under sub. (3) or proof of citizenship under sub. (3m); that the documents are unavailable to the person; and
of
his or her name, date of birth, place of birth, and such other birth record information requested by the
Department
, or the person’s alien or U.S. citizenship and immigration service number or U.S. citizenship certificate number.
2.
Upon receiving a petition
that meets the requirements under subd. 1
, the
administrator
shall provide the person’s birth record information to the
Department
of health services,
for the sole purpose of verification by the
Department
of health services of the person’s birth certificate information or the equivalent document from another jurisdiction, other than a province of the Dominion of Canada, or to a federal agency for the sole purpose of verifying the person’s certificate of birth abroad issued by the U.S.
Department
of state, or of verifying the person’s alien or U.S. citizenship and immigration service number or U.S. citizenship certificate number. The
Department
of transportation
may not complete processing
of the application
prior to receiving verification under this subdivision,
except as provided in subd. 3
.
3
. If the
Department
does not re
ceive verification under subd. 2
.
, the
Department
shall notify the person of that failure to verify. The
Department
may thereafter issue an identification card to the person only if the
Department
receives verification und
er subd. 2
.
,
if
the person provides proof required under sub. (3) or (3m), or
if
the
Department
receives other
secondary
documentation
that is extraordinary proof and
deemed acceptable to the administrator to prove name, date of birth or U.S. citizenship, which may include the following:
a. Baptismal certificate.
b. Hospital birth certificate.
c. Delayed birth certificate.
d. Census record.
e. Early school record.
f. Family Bible record
.
g. Doctor’s record of post-natal care.
h. Other documentation deemed acceptable to the administrator, within his or her reasonable discretion.
4.
Notwithstanding Trans 102.15 (1), in this paragraph
“unavailable” means that the applicant does not have the document
and would be required to pay a government agency to obtain
it
.
Section
13
. Trans 102.15
(5m)
(e) is created to read:
Trans 102.15
(5m)
(e) The denial of a petition under par. (b) is subject to judicial review in the manner provided in ch.
227
for the review of administrative decisions.
Section
14
. Trans 102.15
(6)
(intro.) is amended to read:
Trans 102.15
(6) TEMPORARY DRIVER RECEIPT.
The
Department
may issue a temporary driver receipt for operation of class D or M vehicles to a person who is temporarily unable to meet the identification requirements of sub. (3).
The temporary driver receipt shall state the date of issue, shall be clearly marked "NOT VALID FOR IDENTIFICATION," and shall be validated for the operation of a vehicle for a stated period of up to 60 days from the date issued.
The person may complete his or her license application within this period by presenting proof of the person's name and date of birth
in accordance with sub. (3) (a).
For good cause shown, the
Department
may renew the driving receipt once for an additional period of no more than 60 days.
This subsection does not prohibit a person from proceeding under sub
. (3) (b)
(5m)(a).
This subsection applies only to persons who meet all of the following:
Section 1
5
. E
ffective date:
This
rule
shall take effect on the first day of the month following the Register, as provided in
s.
227.22
(2)
(intro.)
, Stats.
Dated this
27
th
day of
May
2015
.
WISCONSIN
DEPARTMENT
OF TRANSPORTATION
By:
____________________________
Mark Gottlieb,
P.E.,
Secretary
