Strange Goings On in 7th Circuit En Banc WI Voter ID Case: A 9th Vote Appears

On Friday, I linked to this per curiam order from the Seventh Circuit in the two WI voter id/voting cases, I then noted:

Two years ago, when the en banc 7th Circuit considered an earlier stage of the Frank v. Walkerlitigation, in which a 7th Circuit panel had upheld WI’s strict voter id law against a facial challenge, the en banc court divided 5-5. But since then one of the conservatives on the court retired, leaving the possibility of a 5-4 vote in Frank to allow people without one of the strict forms of id to vote with an affidavit.

But one of the judges who could have been in such a five-judge majority, Judge Williams, did not participate in the case. We are not told why. It could be health, a need to recuse for some reason, or some other reason.

As Mark Sherman noted when the compromise per curiam order appeared, the unanimous per curiam could mask a 4-4 split.  Imagine if 4 judges wanted to restore the affidavit requirement and 4 did not, and 4 wanted to side with Wisconsin in its other challenge and four did not.  That would leave things standing as they were in any case, and would not do much good.

But now the 7th Circuit has reissued its per curiam order as amended, with Judge Williams listed as participating. The addition of Judge Williams appears to be the only difference to the opinion.

So why was Judge Williams out, and now in?

Here’s a guess, and it is only a guess: Judge Williams was otherwise travelling or not available, and the judge did not participate. But when some of us started asking about this as a compromise for a 4-4 split, Judge Williams decided to add her name to silently dispel that notion.

Or maybe not. Because the judge did not give a reason for not participating the first time, it is hard to know what to make of this.

Thanks to eagle-eyed Wisconsin Election Protection, for noting the amended order.

 

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