Breaking: 7th Circuit, after 3 Year Delay, Decides Challenge to Wisconsin Voter ID and Related Voting Provisions, in Short Unanimous Opinion, Upholding and Striking Down Some Parts of Law; This is Mostly a Loss for Voting Rights Plaintiffs

You can find the 27-page unanimous decision, with no explanation for the 3 year delay in this case, at this link.

This is mostly a loss for the plaintiffs in these cases, as the appeals court rejected many (though not all) of the challenges to Wisconsin election law. There is a small victory on student ids and a chance to litigate more over how Wisconsin handles the voter id process for voters having trouble getting ids. But overall this is a very voter-unfriendly decision (and I say that not necessarily because of the holdings but because of the dismissiveness of the panel’s approach to voting rights issues and what it means for future challenges).

Some details:

This appeal is complicated: it comes from two separate cases where various election laws were challenged as unconstitutional, a violation of the Voting Rights Act, or both. Some of the decisions of the lower court judges were inconsistent, and some of the issues, came up to the 7th Circuit in earlier challenges to the voter id aspects of the law. Judge Easterbrook, as is his style, gives breezy and superficial treatment to many of these voting issues, making the three year delay in a unanimous case all the more inexplicable.

The opinion starts out with a very troubling discussion of Judge Adelman’s findings that some of these restrictive Wisconsin voting laws were passed with racial and partisan animus. The 7th Circuit found little direct evidence of racial discrimination and then suggested, in a very troubling way, that making it harder to vote on the basis of party is perfectly acceptable. (“If one party can make changes that it believes help its candidates, the other can restore the original rules or revise the new ones. The process does not include a constitutional ratchet.”). In support of this terrible idea, Judge Easterbrook cites the Rucho case from the Supreme Court, which held that there are no judicially manageable standards to separate permissible from impermissible consideration of party in redistricting. But that did not carry over into voting rules, like rules for early voting, and the Supreme Court has never held that partisan animus provides a legitimate basis for discriminatory voting rules.

Making matters even worse, Judge Easterbrook dismisses without analysis the argument that discriminating against Democrats when so much of the party is made up of racial minorities can in some circumstances be a form of racial discrimination. (“The record does not show that legislators made any of the changes because Democratic voters are more likely to be black (or because black voters are more likely to support Democrats). The changes were made because of politics.”).

Judge Easterbrook also dismissed age discrimination arguments under the 26th amendment in a short few sentences. Almost as quickly, the court rejected arguments under the Voting Rights Act that cutbacks on early voting opportunities discriminated against minority voters. More generally, the court criticized the district court for viewing election changes in isolation, viewing Wisconsin’s law overall as providing many opportunities to vote easily.

In one good part of the opinion, the court held that students can vote with an expired student id, or at least that’s how it appears from the court’s opinion. [This part has been corrected.]

Two lower courts had required Wisconsin to provide a way of dealing with voters who lacked the ability to easily get a valid id for voting. The court rejected both injunctions but gave one of the courts on remand a chance to rewrite the injunction so that it would both protect voters and give the state flexibility as it worked out the details of its system.

It’s pretty clear overall that the judge thought more of Judge Peterson’s analysis than Judge Adelman (who has been mildly admonished for his writings on the partisanship of the Supreme Court). The 7th Circuit said the cases should be consolidated in front of one judge (the court didn’t say which one) so that there won’t be more inconsistent rulings.

[This post has been updated.]

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