I’ve explained why we shouldn’t be surprised if the 7th Circuit reverse the district court in the Wisconsin voter id case and rejects both the constitutional and Voting Rights Act section 2 claims brought against it.
But it sounds like the judges may be ready to order (within days, I’d expect) use of the voter id in this election—which has been on hold thanks to the district court order and subject to a stay. WI had asked to lift the stay, and the 7th Circuit put that ruling on hold pending today’s hearing.
Making changes in election rules as voting gets underway (think of overseas and military voters, for whom the process starts 45 days before election) is likely to create a great deal of confusion and uncertainty. It is hard enough to administer an election with set rules—much less to change the rules midstream. [Update: “@Wisconsin_GAB spokesman says 11,815 absentee ballots have already been mailed to WI voters without photo ID instructions. #news3.”]
Here’s what the Supreme Court said in Purcell v. Gonzalez, when the 9th Circuit put Arizona’s voter id law on hold after a district court let it go into effect pending a trial on the merits:
Faced with an application to enjoin operation of voter identification procedures just weeks before an election, the Court of Appeals was required to weigh, in addition to the harms attendant upon issuance or nonissuance of an injunction, considerations specific to election cases and its own institutional procedures. Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.
That of course was the mirror image of today (district court said the id law was ok, appellate cour said no at the last minute). But the argument is more compelling going in this direction, where there will be a flood of people needing id for this election AND training of personnel and others for how to implement the new id laws. This is untested and I agree with the ACLU that implementing it now would be a disaster.