You can read the opposition here.
I would say it is great chutzpah for Wisconsin to argue, as it does, that one reason the en banc court should not reverse the panel is because another reversal would cause voter confusion: “Plaintiffs are asking this Court to pinball state and local election officials between enforcing and not enforcing the law with an election on the horizon. Voters would get the pinball treatment, too.” This is ironic because a stay had been in place until last week’s surprise order implementing a voter id plan that originally was to be part of an 8 month rollout.
The brief is also cavalier in its treatment of those voters who lack id before the election and their potential disenfranchisement. It notes that 90% of the voters have id; so a 10% disenfranchisement rate is okay? Its only response to the argument that WI voters born out of state will not be able to get their documents in time to get the “free” id (not really free since the documents verifying identity costs money) is that the number of such voters is “speculative.” So it is okay to disenfranchise a speculative number of Wisconsin voters so close to the election?
All of this electoral chaos might be worth it if there were a major problem of impersonation fraud in Wisconsin. But Wisconsin does not have a problem with impersonation fraud, something the state conceded. And the Supreme Court has cautioned against changing the rules just before the election in the Purcell v. Gonzalez case. Wisconsin’s attempt to distinguish Purcell is really feeble. In Purcell, the Supreme Court said:
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.
Here’s what Wisconsin says about Purcell:
In Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam), the U.S. Supreme Court vacated an injunction granted on appeal by the Ninth Circuit, which halted Arizona’s enforcement of its voter ID law. The Ninth Circuit’s injunction pending appeal was entered on October 5, 2006. Id. at 3. The Supreme Court’s decision in Purcell was issued on October 20, 2006. Id. at 1. There were elections weeks later on November 7, 2006. This Court’s Order is consistent with Purcell.
This does not respond at all to the admonition that a court, especially an appellate court, should not change election rules midstream.
So what happens next? The court has already denied a motion for One Wisconsin to file an amicus brief in the case. I expect an order on the rehearing peitition to come any time. The order can be: (1) rehearing from the panel granted, and presumably a reversal from the panel; (2) rehearing from the panel denied (that seems most likely) and (a) rehearing en banc denied, meaning the case can then go to the Supreme Court for emergency relief; (b) rehearing en banc granted, with (i) an order reversing the panel and putting the id law back on hold for this election, or (ii) an order for an oral argument (which seems unlikely given the time frame).