Breaking: 7th Circuit Reverses (for Now at Least) Softening of WI Voter ID Rule: What’s Next?

In an order issued today, the Seventh Circuit in Frank v. Walker has put on hold the softening of Wisconsin’s voter id law which a trial court had ordered a few weeks ago. That softening required Wisconsin officials to accept an affidavit from a voter that he or she had a reasonable impediment to getting one of the narrow ids WI allows for voting in the election. It was a very broad affidavit which would allow many more people who lack the ids to vote.

The 7th Circuit issued the stay because it believes it is very likely to reverse the requirement for the affidavit alternative, because it is not targeted enough to the kinds of people who face special burdens on voting. “Because the district court has not attempted to distinguish genuine difficulties of the kind our opinion mentioned, 819 F.3d at 385–86, or any other variety of substantial obstacle to voting, from any given voter’s unwillingness to make the effort that the Supreme Court has held that a state can require, there is a substantial likelihood that the injunction will be reversed on appeal.”

In practical effect, given the timing close to the election, this means no affidavit requirement will apply in the upcoming Wisconsin November elections unless this order is further reversed by the full 7th Circuit (sitting en banc) or by the Supreme Court.  Well how likely is that?

The plaintiffs could well go to the full 7th Circuit en banc, and as I noted in my post on the district court’s order, the Seventh Circuit has recently gone from a 5-5 split on the question of the propriety of these voter ids to one that now appears to be 5-4 skeptical of these id requirements. But that doesn’t necessarily translate into a 5-4 vote to reverse the stay and put the affidavit softening in place. One issue will be timing. Another is whether the softening comports with what has happened earlier in the case and with Crawford.

Whatever the full 7th Circuit might do, I expect that is likely the last word (unless there is a Purcell/timing question posed). The Supreme Court on the merits could well split 4-4 if and when the case gets there.

Meanwhile, there is a second case pending in which a trial court ordered different softening measures for Wisconsin’s voter id law, as well as striking other Wisconsin election laws. That case remains pending on appeal, and is not affected by today’s order.  (It is not clear if the same panel will have that case.)

[This post has been updated]

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