BREAKING: 7th Circuit Again Splits 5-5 on ID

More breaking news: The 7th Circuit, sitting en banc, just split again 5-5 over whether to review the panel opinion’s decision on the merits. Judge Posner had apparently asked for the vote himself, and wrote 28 pages disagreeing with the refusal to take the case en banc.  His Appendix — the documentation and bureaucratic process required of one person trying to get the underlying papers to secure an ID — is clearly aimed squarely at Judge Easterbrook: it’s entitled “Scrounging for your birth certificate in Wisconsin.”

For those keeping score: on September 12, a panel of the 7th Circuit voted to stay the district court’s injunction against Wisconsin’s ID rule (letting the ID requirement go forward).  On September 26, the court divided 5-5, refusing to rehear that decision en banc.  On October 9, the Supreme Court vacated that stay pending the filing (and disposition) of a cert petition (re-establishing the district court’s injunction for the election, and stopping the ID law).

On October 6, a panel of the 7th Circuit issued a decision on the merits, reversing the district court’s injunction (and therefore letting the ID requirement go forward).  This morning, the court divided 5-5, refusing (on Judge Posner’s request) to rehear that decision en banc.  (It’s possible the plaintiffs could also ask for rehearing en banc … and I think that’s a separate request with separate implications for the clock.)  

[Update: a reader passed on Ian Millhiser’s reminder that there’s been a vacant seat on the 7th Circuit since January 2010.]


There’s been a discussion on the listserv about exactly where the ID requirement stands right now.  Technically, it’s right now enjoined by the district court order.  The 7th Circuit’s decision on the merits (reinstating the ID rule) will kick in when the 7th Circuit issues its mandate, which is still forthcoming (there’s a regular calendar, but the court could also order it earlier).  And given the Supreme Court’s order yesterday, it’s exceedingly likely that the plaintiffs will promptly ask the Supreme Court to issue another stay — this time, of the merits decision — and that the Supreme Court will actually do so.


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