Breaking: 7th Cir. Denies Rehearing En Banc in WI Voter ID Case on an Equally Divided Vote: Analysis

You can read the order here or below.

On September 12, 2014, a panel of this court stayed the injunction that the district court had issued. Plaintiffs have filed a motion for reconsideration, asking the court to vacate the stay and reinstate the injunction. The panel that issued the stay has voted to deny the motion for reconsideration. A judge called for a vote on the request for a hearing en banc. That request is denied by an equally divided court. Chief Judge Wood and Judges Posner, Rovner, Williams, and Hamilton voted to hear this matter en banc. In the coming days, members of the court may file opinions explaining their votes.

A few points:

1. I expect that the plaintiffs will next try the Supreme Court.  Ordinarily I’ve been saying that progressives need to stay out of the Supreme Court on these voting rights cases. But (a) this is a really egregious order changing the rules midstream in violation of the Supreme Court’s own admonition in the Purcell v. Gonzalez case; and (b) now that the Court has before it the Ohio case, presenting a similar section 2 Voting Rights Act issue but with much worse facts for voting rights advocates, it would be better for this to be up there at the same time.  So there’s not much to lose to get this case before the Court at the same time.

2. Judge Posner did not recuse, as some thought he might. I would expect he or others on the side voting for review will explain themselves, and quickly if the case heads to the Supreme Court.  While this is not a party divide, it does appear mostly to be an ideological divide on the Court.

3. In the meantime, Wisconsin will continue to work on implementing its voter id law, and I expect the facts about how hard or easy it is for people to get id right now will be relevant in the Supreme Court’s consideration, should the Court consider the case.

[This post has been updated.]

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