Read the En Banc Brief in 7th Circuit Wisconsin Voter ID Case

You can find the brief at this link (via Mike Scarcella). The brief makes a compelling case, relying on the Supreme Court’s opinion in Purcell v. Gonzalez and other cases, that implementing voter id in Wisconsin at the last minute is likely to cause electoral chaos—a point which should be compelling  regardless of where you stand on the actual merits of WI implementing its voter id law in an organized way. From the introduction:

First, the panel decision involves a question of exceptional importance under Fed. R. App. P. 35(b)(1)(B) because it imposes a radical, last-minute change to procedures for conducting an election that is already underway. The risk of disenfranchisement from imposing such a last-minute disruption far outweighs the non-existent harm to the state of maintaining the status quo and not requiring photo ID for one more election. Supreme Court precedent and other Circuits uniformly caution against such eleventh-hour changes to the election laws, even where those courts have approved such changes for future elections. See Purcell v. Gonzalez, 549 U.S. 1 (2006).

Second, the panel‟s extraordinary decision to grant a stay pending appeal – which altered rather than maintained the status quo – ignored the four-factor test for such relief set forth by the United States Supreme Court in Nken v. Holder, 556 U.S. 418, 434 (2009), and the Court‟s admonition against last-minute reversals of lower court election law rulings in Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006). Specifically, the panel decision failed to consider that issuance of the stay and the consequent slapdash implementation of a complex law – which was designed to have a rollout period of 8 months before a primary and 16 months before a general election – “will substantially injure” the rights of voters without ID, and that “the public interest lies” strongly against fundamentally changing the rules of an election on the eve of the election, particularly where absentee voting is already underway. In addition, the panel decision failed to consider seriously one of the “most critical” factors. Defendants will not be “irreparably injured absent a stay,” Nken, 556 U.S. at 434, if the election proceeds without a photo ID requirement, as has been the case in all but one election in Wisconsin‟s history.


 In this case, the district court found that approximately 300,000 voters do not have the most common form of ID that would now be needed to vote on November 4 (exactly 7 weeks from today), which is an unexpired driver‟s license or state-issued photo ID. See Frank v. Walker, No. 11CV01128, 12CV00185, 2014 WL 1775432, at *11 (E.D. Wis. Apr. 29, 2014). It is not only unreasonable, but also mathematically, logically, and physically impossible that by November 4, hundreds of thousands of voters will learn about the need for ID, especially given the total suspension of public information about the law for two and one-half years, collect multiple required documents, get to a DMV office, and obtain the ID suddenly required by staying the District Court‟s injunction last Friday afternoon. Doing so would require Wisconsin to issue some 6,000 photo IDs per day between now and the election.

What’s especially amazing to me is that the 7th Circuit panel’s order did not even address these issues in its very short order issued on Friday.

And in Wisconsin, where there is a very close race for governor (among other races), such a last minute change has the real potential to affect electoral outcomes.

It will be interesting to see if this case makes it to the Supreme Court, regardless of what the en banc 7th Circuit does.


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