Ari Berman on Why WI’s Voter ID Law is Not Like Indiana’s, Contra 7th Circuit

Important piece:

3. Approving a law of this magnitude less than two months before a major election is certain to cause electoral chaos. Wisconsin’s voter ID law has been blocked since March 2012—in four different lawsuits in state and federal court.

Nine percent of Wisconsin’s electorate lacks a government-issued ID, compared to Indiana, where 99 percent of registered voters had ID.

Even if these hundreds of thousands of voters possess the underlying documentation to obtain a voter ID—like a birth certificate (seven witnesses at the trial didn’t have access to theirs)—they’d still have trouble getting one.

According to an amicus brief filed by One Wisconsin Now, 257,000 voting-age Wisconsinites don’t have a car in their household. Moreover, only thirty-three of Wisconsin’s ninety-two DMVs are open full-time during business hours. Wisconsin is very different from Indiana in that respect, notes the brief:

41 [DMVs] are open just two days each week, seven are open just a few hours for one day each month, and three are open just one day every quarter.… Only one DMV service center in the entire state of Wisconsin is open on a Saturday. No other DMV in the entire state operates in the evenings or on weekends.

Nearly all of Indiana’s 140 BMVs are open five days a week, Wisconsin has only 33 full-time sites; Indiana has 124 that are open on the weekends, Wisconsin has one.

According to the DMV website, the 92 DMV service centers are open for a combined total of approximately 9000 hours per month. If the 330,000 electors [without ID] attempted to obtain their ID during the one-month period preceding the election, the DMV would need to process on average 37 eligible electors each hour, every day of operation for the entire month.



WI John Doe Investigation: “Source who accused Chisholm of vendetta has troubled past”

Dan Bice:

The allegations are explosive.

Milwaukee County District Attorney John Chisholm has used the power of his office to conduct two secret investigations of Gov. Scott Walkerbecause Chisholm’s wife is a teachers union shop steward bitterly opposed to Walker’s anti-union policies. Right-wing talk radio quickly jumped on the story and ran with it for several days this week.

The source for reporter Stuart Taylor Jr.’slengthy article in Legal Newsline: a “longtime Chisholm subordinate” who is now a “former staff prosecutor in Chisholm’s office.”

Only those descriptions are not accurate. Not even close.

No Quarter has confirmed that the source making the allegations is a figure well-known in Milwaukee’s legal community — but not for his prosecutorial record.

Michael W. Lutz, 44, is a former Milwaukee cop involved in several high-profile incidents during his 17 years on the force who receives taxpayer-funded duty disability pay for post-traumatic stress disorder. He got his law license less than four years ago and is now a criminal defense attorney.

But here is the shocker: Lutz issued a death threat, apparently during a drunken rage, against the prosecutor and his family last year — a charge not in dispute, though it was never prosecuted.

(H/t Brendan Fischer)


“Civil Rights Advocate Debo Adegbile Joins Wilmer”


Adegbile was under consideration for a seat on the U.S. Court of Appeals for the D.C. Circuit, and was nominated in 2013 to head the Civil Rights Division of the U.S. Department of Justice. The Senate rejected his nomination in March of this year. Some senators cited an appellate brief he wrote while with the fund in the case of Mumia Abu-Jamal, convicted of killing a Philadelphia police officer in 1981. Others defended him for that post-conviction representation.


“‘A Big, Big Mistake’ on Voter ID”

Jesse Wegman on Wisconsin voter id decision, in NYT’s “Taking Note” Ed blog, quoting my blog post from Friday:

Rick Hasen, a professor of election law at the University of California, Irvine, called the decision a “big, big mistake” on his blog. He noted that the state has already mailed out nearly 12,000 absentee ballots that do not include the photo-ID requirement. “It is hard enough to administer an election with set rules — much less to change the rules midstream.”

Mr. Hasen predicted that the appeals court’s ruling itself could well be stayed by the Supreme Court on the grounds that last-minute changes risk introducing electoral chaos. In a 2006 ruling, which the appeals panel did not cite, the Supreme Court said: “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.”



“Bill Maher announced he’s targeting Rep. John Kline. He picked the wrong guy.”

Aaron Blake:

Comedian Bill Maher announced Friday night that he will personally target Republican Rep. John Kline (Minn.) for defeat in the November election — the culmination of his longstanding “Flip a District” contest in which the HBO host allowed his viewers to pick which Republican he would attempt to unseat.

The final four were Kline and Reps. Blake Farenthold (R-Tex.), Mike Coffman (R-Colo.) and Renee Ellmers (R-N.C.). Maher made the announcement Friday from his show in Washington, D.C.

Maher in 2012 donated $1 million to the super PAC devoted to reelecting President Obama, so it’s clear he puts his money where his mouth is. But in targeting Kline, that money is probably going to be poorly spent.

That’s because Kline, quite simply, isn’t a Democratic target.



“With a win on the line in Colorado, Democrats hope to mail it in”

Reid Wilson for WaPo:

Here in the Senate battleground of Colorado, the latest front in the voting wars is  the mailbox.

In other states, that fight has generally centered on laws that opponents say restrict voter access – measures, largely passed by Republican legislatures, that require voter identification or reduce the number of days for early voting.

But Colorado is  operating under a new system designed to do the opposite: For the first time this year, every registered voter will get a ballot delivered to them through the mail, weeks before Nov. 4.


Breaking: 6th Circuit Refuses to Stay Ohio Early Voting Order

What is it with judges issuing opinions late on Fridays?

A three judge panel of the Sixth Circuit has just issued this order denying Ohio’s request to put on hold a district court order requiring Ohio to restore early voting days (including “Golden Week”) which the Republican legislature tried to cut.

For those who have noted that all the judges who just allowed Wisconsin’s voter id law to go into effect were Republican-appointed, it is worth noting that all the judges in the Sixth Circuit today were Democrat-appointed.

Part of the Sixth Circuit’s reason for rejecting Ohio’s argument that the restoration of early voting is not required by either the Constitution or the Voting Rights Act section 2 is that it says Ohio did not cite any legal authority supporting its argument, while the plaintiffs cited Sixth Circuit authority which helped them.

Here is a bit of my analysis of the earlier district court order:

6. The main problem with the equal protection theory and the VRA section 2 theory is the same: Ohio’s law is not all that burdensome, and in fact it provides many opportunities for voting (such as a still very long early voting period of 28 days and no excuse absentee balloting for a long period) which are not available in other states. If 28 days is unconstitutional and a voting rights violation, what does this say about places like New York, which offer no early voting?  Although the judge says he is not applying a “non-retrogression” standard such as that which used to exist under section 5 of the VRA, that appears to be what he is doing to at least some extent. The judge says the cutbacks are relevant in a totality of the circumstances approach to section 2 VRA applicability.

7. Perhaps most surprisingly, the judge does not really give us a full test for determining when a vote denial case constitutes a violation of section 2 of the Voting Rights Act. This is an issue which is dividing the lower courts, from the capacious reading of section 2 in Frank v. Walker, the federal case striking down Wisconsin’s voter id law, to the much narrower reading of section 2 in North Carolina Conference of the NAACP v. McCrory, the federal case rejecting a preliminary injunction for cutbacks in early voting and other changes in North Carolina. The judge simply throws up the section 2 “Zimmer factors” and has at it. The standard does not explain whether any and every voting rule which has a disparate impact on minority voters counts as a section 2 violation. And if section 2 is that broad, is it a constitutional exercise of Congress’s power?

8. In the end, it might be that the trial court’s ruling will stand, because the Sixth Circuit has been reading equal protection principles from Bush v. Gore quite broadly, and requiring Ohio to not retrogress in protections and benefits offered to voters.  (I analyzed these cases in The 2012 Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore, 81 George Washington Law Review 1865 (2013).) But the opinion issued today is quite undertheorized as a matter of law, and I am not sure that it will stand up to further scrutiny, at least if applied in other cases.

[This post has been updated.]


Breaking: 7th Circuit Allows WI Voter ID Law to Go Into Effect Immediately

You can read the order here. From the order:

After the district court’s decision, the Supreme Court of Wisconsin revised the procedures to make it easier for persons who have difficulty affording any fees to obtain the birth certificates or other documentation needed under the law, or to have the need for documentation waived. Milwaukee Branch of NAACP v. Walker, 2014 WI 98 (July 31, 2014). This reduces the likelihood of irreparable injury, and it also changes the balance of equities and thus the propriety of federal injunctive relief. The panel has concluded that the state’s probability of success on the merits of this appeal is sufficiently great that the state should be allowed to implement its law, pending further order of this court.

This is a big, big mistake for election administration reasons (regardless of how the court ultimately comes out) and I expect now an emergency motion to the Supreme Court, based upon Purcell v. Gonzalez, to stop this change. I think there’s a decent chance the Supreme Court could intervene on this, even if the Court ultimately is likely to reject the constitutional and Voting Rights Act challenges to this ruling.

I think this also is fairly indicative that the 7th Circuit panel will be overturning the district court ruling finding WI’s voter id law violating both the Constitution and Section 2 of the Voting Rights Amendment.

[This post has been updated.]


Very Bad Idea to Implement WI Voter ID Just Before the Election

I’ve explained why we shouldn’t be surprised if the 7th Circuit reverse the district court in the Wisconsin voter id case and rejects both the constitutional and Voting Rights Act section 2 claims brought against it.

But it sounds like the judges may be ready to order (within days, I’d expect) use of the voter id in this election—which has been on hold thanks to the district court order and subject to a stay.  WI had asked to lift the stay, and the 7th Circuit put that ruling on hold pending today’s hearing.

Making changes in election rules as voting gets underway (think of overseas and military voters, for whom the process starts 45 days before election) is likely to create a great deal of confusion and uncertainty. It is hard enough to administer an election with set rules—much less to change the rules midstream. [Update: "@Wisconsin_GAB spokesman says 11,815 absentee ballots have already been mailed to WI voters without photo ID instructions. #news3."]

Here’s what the Supreme Court said in Purcell v. Gonzalez, when the 9th Circuit put Arizona’s voter id law on hold after a district court let it go into effect pending a trial on the merits:

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.

That of course was the mirror image of today (district court said the id law was ok, appellate cour said no at the last minute). But the argument is more compelling going in this direction, where there will be a flood of people needing id for this election AND training of personnel and others for how to implement the new id laws.  This is untested and I agree with the ACLU that implementing it now would be a disaster.


Don’t Be Surprised 7th Circuit Skeptical of Voting Rights Claim in Wisconsin Voter ID Case

Here is my analysis of the district court order.

3. Both the constitutional law and VRA section 2 claims are controversial.  On the con law point, the judge purports to apply the “Anderson-Burdick” balancing test that the Supreme Court applied in upholding Indiana’s voter id law in the Crawford case. The judge purports to apply Crawford, but reaches a different result. It is not clear that this is a fair application of that test–which seems to suggest at most that the law be upheld as to most voters but create an “as applied” exemption for a specific class of voters. The judge said that this was not practical in this case given the large number of Wisconsin voters who lack id.  It is not clear that the appellate courts will agree.

4. On the VRA issue, this is the first full ruling on how to adjudicate voter id vote denial cases under section 2.  The key test appears on page 52 of the pdf: “Based on the text, then, I conclude that Section 2 protects against a voting practice that creates a barrier to voting that is more likely to appear in the path of a voter if that voter is a member of a minority group than if he or she is not. The presence of a barrier that has this kind of disproportionate impact prevents the political process from being ‘equally open’ to all and results in members of the minority group having ‘less opportunity’ to participate in the political process and to elect representatives of their choice.” The judge also approaches the causation/results question in a straightforward way.  It is not clear whether the appellate courts will agree or not agree with this approach, which would seem to put a number of electoral processes which burden poor and minority voters up for possible VRA liability.

In sum, this is a huge victory for voter id opponents. But time will tell if this ruling survives.


Doesn’t Sound Good for WI Voter ID Opponents

Journal-Sentinel: Appeals panel questions why voter ID shouldn’t be in place Nov. 4

Attorneys representing groups that successfully sued over Wisconsin’s voter ID law came in for tough questioning Friday before a panel of three federal judges, with Judge Diane Sykes saying they had won “a whopper of a facial remedy” and questioning why the law shouldn’t be put in place for the Nov. 4 election.

“We are on the eve of an election,” Sykes said.


About the En Banc Split in 7th Circuit in IN Voter ID Case

Here is how I described that split in The Untimely Death of Bush v. Gore (Stanford Law Review):

The two judges in the Crawford majority were appointed by Republican presidents while the dissenting judge was appointed by a Democratic president.200 What’s worse, the Seventh Circuit recently voted to deny en banc rehearing in Crawford, with the vote splitting along party lines (with one exception).201 Among other things, the dissenting judges argued that the Crawford majority applied the wrong standard of review,202 an issue that is ripe for consideration by the Supreme Court203 and now raised by the plaintiffs in their petition for writ of certiorari in the Court.204

I am not arguing that the Seventh Circuit judges were consciously making decisions based upon what would be best for the party they support; instead, I am arguing that in the face of a paucity of evidence, the judges may be swayed by beliefs that seem to correlate with those who are members of their party.

Judge Posner’s majority opinion, for example, goes out of its way both to minimize the extent to which this law is likely to burden voters and to suggest (without any real evidence) that there is a great deal of impersonation vote fraud going on out there that is not easily detected. Judge Evans, in dissent, is the mirror image. He is greatly bothered by what he sees as the potential for voters to be disenfranchised (pointing to some suggestive anecdotes), while dismissing concerns about vote fraud as unsupported by the evidence.



Lawsuit Against DOD Seeking Online Voting Info

A reader passes along the following:

EPIC Files FOIA Lawsuit For Reports on Electronic Voting Reliability

EPIC has filed a Freedom of Information Act lawsuit to obtain test reports about an online voting program promoted by the Department of Defense. The records sought relate to the functionality and security of electronic voting systems. The California Secretary of State, Members of Congress, and voting rights advocates have tried to obtain these documents, but DOD has kept them secret even after promising public disclosure in 2012. Computer scientists have long warned about the risks of electronic voting systems. In the complaint, EPIC states that “it is absolutely critical for the documents sought in this matter be disclosed prior to further deployment of e-voting systems in the United States.” The case is EPIC v. Department of Defense, No 14-1555 (D.D.C. filed 9/11/2014). For more information, see EPIC: EPIC v. DOD – E-voting Security Tests.


WI Voter ID: Convenient Timing Department

As the Seventh Circuit hears arguments this morning in the voter id case, AP reports:  ”Wisconsin officials said Wednesday they’ve set up a free process to verify birth information for people looking for state identification cards to vote but who lack birth certificates.”


Finally, anyone who would suggest implementing voter ID at this late date before an election must have it out for election officials and voters alike. Implementation would affect absentee voting, and municipal clerks are already preparing to send out absentee ballots. They would have to amend the instructions and establish new procedures for processing the ballots. They do not have time in these busy final
weeks to retrain their poll workers and educate voters.

The announcement of new procedures for obtaining an ID — which is unneeded under the injunction –shows that the true intent of this law is not to improve elections but rather to cause confusion and discourage people from voting.


2 of 3 Judges on WI 7th Circuit Voter ID Panel Voted Against Plaintifs in IN Voter ID Case; 1 Was Not on Court

The judges chosen are Judges Easterbrook, Sykes, and Tinder. The first two voted against rehearing the Crawford case upholding Indiana’s voter id law.  Judge Tinder joined the court after that case.

Of course, the facts of the two cases are different, and the law is partially different (Crawford raised on an equal protection claim, while this case raises both equal protection and Voting Rights Act section 2 claims). We’ve seen judges can change their mind on this issue. Judge Posner wrote the majority opinion in Crawford, and now has called such laws a means of voter suppression.


“Federal appeals judges to hear Wisconsin voter ID arguments” – Will J. Posner Participate?

Milwaukee Journal-Sentinel: ”A panel of three federal appeals court judges in Chicago will hear arguments on whether to reinstate Wisconsin’s voter ID law on Friday, less than eight weeks before the Nov. 4 election.”

The identity of the panel members should be posted by 9 am central at this link.

One big question is whether Judge Posner will be on the panel. The panel assignments are by lot, but some have speculated that Judge Posner could recuse given his statements recently about his earlier decision in the Indiana voter id case. See my piece, Why Judge Posner Changed His Mind on Voter ID.



Looks Like Eugene Volokh Agrees With Me on Weaknesses of Susan B. Anthony Opinion

See here. (My earlier analysis.)

Still, I wonder if the state of Ohio will appeal, especially since the AG DeWine filed an amicus brief against the constitutionality of the state’s law. Plain Dealer: “DeWine spokesman Dan Tierney said the office would have to consult with the Ohio Elections Commission before deciding whether to appeal the decision.”


“Executive behind voter fraud billboards sought Scott Walker advice”

Milwaukee Journal Sentinel:

A venture fund manager consulted with then-Milwaukee County Executive Scott Walker about state and federal voting laws in 2010, just weeks before the businessman began posting controversial ads on billboards in Milwaukee that warned “Voter Fraud is a Felony.”

“Scott, I need to know the rules for illegal voting in Wisconsin,” Stephen Einhorn wrote in an email on July 22, 2010. “Please check into the rules, including federal statutes. I need to know what the law is, if you violate it.”

Einhorn continued, “I need this for some work that I am doing, and would appreciate your prompt response.”



“Texas Democrats ask for federal probe of AG raid that targeted voter sign-up group”

Dallas Morning News: ”Democratic congressmen from Texas have asked the U.S. Department of Justice to investigate a raid by Texas Attorney General Greg Abbott’s office that targeted a nonprofit voter registration group. The Dallas Morning News reported Aug. 31 on the attorney general’s criminal investigation of Houston Votes, which was accused of election fraud. The probe was closed one year later, with no charges filed.”