As expected, a unanimous 7th Circuit panel, in an opinion by Judge Easterbrook, has reversed a lower court and ordered that court to consider whether Wisconsin’s voter id law unconstitutionally burdens the right to vote or those voters who face extra burdens in obtaining proper voter identification to vote in Wisconsin. Some very helpful (and surprising, given the earlier decision) language from Judge Easterbrook, which should help with as-applied challenges:
The argument plaintiffs now present is different. Instead of saying that inconvenience for some voters means that no one needs photo ID, plaintiffs contend that high hurdles for some persons eligible to vote entitle those particular persons to relief. Plaintiffs’ approach is potentially sound if even a single person eligible to vote is unable to get acceptable photo ID with reasonable effort. The right to vote is personal and is not defeated by the fact that 99% of other people can secure the necessary credentials easily. Plaintiffs now accept the propriety of requiring photo ID from persons who already have or can get it with reasonable effort, while endeavoring to protect the voting rights of those who encounter high hurdles. This is compatible with our opinion and mandate, just as it is compatible with Crawford. Indeed, one may understand plaintiffs as seeking for Wisconsin the sort of safety net that Indiana has had from the outset.
Here is the ACLU press release.
I discuss the disappointing results of as-applied and other softening devices in relation to as-applied challenges in Softening Voter ID Laws Through Litigation: Is it Enough? (draft in progress, Mar. 2016).