Yesterday the 7th Circuit (with a panel of Judges Easterbrook, Sykes, and Kanne) heard oral argument in a follow-on federal challenge to Wisconsin’s voter id law. You can listen to the oral argument. After listening, I believe the 7th Circuit is extremely likely to send this case back to the district court for a possible trial on whether voters facing special burdens under Wisconsin’s law are entitled to an as-applied exemption from the law.
To review (as I explain in this draft paper): In Wisconsin, voting rights plaintiffs challenged Wisconsin’s tough voter identification law in both state and federal court. A federal court held the law violated Section 2 of the Voting Rights Act and the United States Constitution’s Equal Protection Clause. Meanwhile, the Wisconsin Supreme Court in a state challenge to the voter identification requirements construed its laws and related regulations to allow voters who lacked documentation proving identity which is not freely available to nonetheless obtain a voter identification card. After this construction of Wisconsin law by the state’s highest court, the United States Court of Appeals for the 7th Circuit (in a panel which included both Justices Easterbrook and Sykes) rejected both the constitutional and Voting Rights Act challenges to the law on a facial basis. Frank v. Walker, 17 F. Supp. 3d 837 (E.D. Wisc. 2014), rev’d, 768 F.3d 744 (7th Cir. 2014), cert. denied 135 S. Ct. 1551 (2014).The entire Seventh Circuit denied rehearing en banc by an equally divided 5-5 vote, over a strong dissent, 773 F.3d 783 (7th Cir. 2014). The Supreme Court denied a petition for writ of certiorari. 135 S. Ct. 1551 (2014).
On remand, the plaintiffs argued that they should be able to bring an as-applied challenge arguing that those voters who face special burdens getting voter id should be allowed an exemption under the law, especially because of indications that the DMV is not doing a good job helping these plaintiffs vote. (It seems pretty clear the DMV is doing a lousy job, as I wrote in The Hard Power of ‘Soft’ Voter-ID Laws, The Atlantic, March 14, 2016 and in this draft paper, which should eventually appear in the Wisconsin Law Review). The district court held that the 7th Circuit opinion precluded such an as applied challenge.
At the oral argument yesterday, it was very clear that Judge Easterbrook thinks the district court got this wrong, and in fact the 7th Circuit allowed plaintiffs to go back to the district court to bring an as-applied challenge, based in part on how Wisconsin was doing with handling its voter id laws on the ground. The state’s lawyer got a real grilling from Easterbrook, while the ACLU lawyer got few questions of clarification.
So the case will likely go back, and Judge Adelman, who is the one who found the ID law was unconstitutional and a voting rights act violation in the first place, will now rule on the as applied challenge. That ruling will then likely get appealed to the 7th Circuit again, and again potentially to the Supreme Court.
The big unanswered question: will voters who face special burdens getting ids in Wisconsin continue to be disenfranchised for the November 2016 presidential election? The timing of things makes this a real possibility.
(More and the case and oral argument from Alice Ollstein.)