The 7th Circuit denominator

No time like the present to start “easing in,” I guess.

Others have already said quite a bit about yesterday’s 7th Circuit voter ID decision.  I’ve written many times about the ID-on-a-plane fallacy (it’s both irrelevant and wrong), about using turnout to gauge a regulation’s impact (if it’s the right measure, then it’s constitutional to disenfranchise anyone who didn’t vote in a high-turnout year like 2008), and about the right way to interpret Crawford (it did not hold that Indiana’s statute is “compatible with the Constitution” (an advisory decision that would violate the rights of all absent parties); it held that the evidence presented by the plaintiffs in the case was insufficient to show that the statute is unconstitutional, which is a significant difference).

I just want to add one more piece at the moment.  Judge Easterbrook said that the Wisconsin suit, “like Crawford, is a challenge to Act 23 as written (‘on its face’), rather than to its effects (‘as applied’).”

No, it’s not.

Let’s see if the text of the actual complaint can clear this up: “This lawsuit seeks a declaratory judgment that the photo ID law is unconstitutional as applied to certain classes of eligible Wisconsin voters and to enjoin its enforcement with respect to these classes.”  To be fair, the district court declined to rule on the certification of classes, and enjoined the implementation of the statute across the board.  Perhaps that confused the 7th Circuit.  But what the plaintiffs actually requested is a remedy tailored to the particular burdens they demonstrated.  By refusing to confront the suit the plaintiffs actually pled, the 7th Circuit expanded the denominator for cognizable injury.  That is, by ignoring the true nature of the challenge and expanding the case to encompass all the voters in the state, it could make inference upon inference (or, if you prefer, speculation) upon what most Wisconsinites (absent from the case) could probably do, and ignore the actual evidence presented by the actual people seeking to represent similarly situated others.

(Disclosure: I contributed a bit to discussions about the complaint in the Wisconsin case.  I did not draft it, and did not participate in the litigation thereafter.)

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