Breaking: 7th Circuit Issues Opinions in Earlier 5-5 Split on WI Voter ID Law: Next Stop #SCOTUS?

You can read the opinions at this link. Here are my thoughts:

1. The majority opinion, authored by the three judges on the original panel which lifted the stay, strikes me as disingenuous. The biggest flaw is the idea that voters had years to get their id’s, so it is no fault now of the state if they don’t have them. To begin with, the law had been put on hold, and a federal judge had determined the law was likely unconstitutional and a violation of the Voting Rights Act. Why should individuals who lacked the right narrow kind of ID necessary for the law have gone out to get it when there was a good chance (as predicted by a federal judge) that the law would never be implemented? Further, until nearly the time the 7th Circuit considered the case, the procedures put in place by the state of Wisconsin to get the id’s were found by the state supreme Court to be unconstitutional. The WI Supreme Court, by judicial fiat, changed the rules just a few weeks before the 7th Circuit order. And then the state changed them again. So there could not have been years to get the IDs.

2.The opinion is also disingenuous in saying the law is just like the Indiana law upheld by the Supreme Court in the 2008 Crawford case. Put aside the fact that Crawford did not involve a Voting Rights Act challenge, which imposes a different standard. Wisconsin’s law is also stricter (as the dissenters today point out, Indiana’s law allowed for an indigent voter to file an affidavit of indigency to get around the law and WI voters cannot). Further, the record in the Indiana case showed no evidence of actual voters disenfranchised, but the record here did show actual disenfranchised voters who would have a hard time getting the IDs under state law.

3. The opinion is also disingenuous in faulting the law’s challengers for not presenting evidence to the 7th Circuit of the number of people disenfranchised by the law. How could that be? The trial court found that up to 300,000 registered voters don’t have the right id yet. That finding, unless clearly erroneous, should be binding on the appellate court. Indeed, the dissenters point out that the state of WI conceded that 10% of the voters lacked the right ID:

[The state of WI] brazenly responds that the district court found that “more than 90% of Wisconsin’s registered voters already have a qualifying ID” and can vote and that “the voter ID law will have little impact on the vast majority of voters.” But the right to vote is not the province of just the majority. It is not just held by those who have cars and so already have driver’s licenses and by those who travel and so already have passports. The right to vote is also held, and held equally, by all citizens of voting age. It simply cannot be the answer to say that 90% of registered voters can still vote. To say that is to accept the disenfranchisement of 10% of a state’s registered voters; for the state to take this position is shocking.

4. Aside from what the 7th Circuit (or Supreme Court) will ultimately do on the merits of the constitutional and Voting Rights Act claims in the case (and I’m skeptical of ultimate success), the voter id law should not be implemented in such a haphazard way risking the disenfranchisement of thousands of voters. This is the Purcell principle which the Supreme Court has recognized, and which today’s 7th Circuit dissenters rely upon. The dissenters make a compelling case for the Supreme Court to get involved. But, as I said this morning,  the longer the delay, the less compelling the Purcell changing the rules argument in midstream becomes. I’ve explained why I think a stay request has (would have had?) a decent chance here and my Slate piece from yesterday puts Wisconsin into broader perspective in the heat up of the voting wars.

[This post has been updated.]


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