Breaking: Federal District Court Softens WI Voter ID Law, Allowing Affidavit in Place of ID

You can find Judge Adelman’s 44-page order here.

I’m about to jump on a call, and so I will post more later. But suffice to say that this is a very big deal, and at first blush (subject to closer review) it is not clear to me that this broad relief will be upheld by the 7th Circuit panel that upheld Wisconsin’s voter id law in the first place.

UPDATE: I have now had a chance to read the order in Frank v. Walker and I offer this analysis:

  1. Judge Adelman, who wrote today’s decision in Frank v. Walker, was the same judge who initially ruled that the entire law was unconstitutional and a violation of the Voting Rights Act. That ruling was overturned on appeal by a 7th Circuit panel, led by Judge Frank Easterbrook, and the 7th Circuit divided 5-5 over whether to take the case en banc (including on the question of emergency relief) over strong dissents from among others, Judge Richard Posner. The ACLU then petitioned the Supreme Court to take the case (a decision which was controversial at the time, when Justice Scalia was still on the Court and the chances of a 5-4 affirmance rather high), but the Supreme Court declined to hear the case. Plaintiffs then went back to the district court and asked for some as-applied relief, for those voters who faced special burdens in getting voter id. Judge Adelman first ruled that he had no authority to do that given the earlier 7th Circuit opinion, but then Judge Easterbrook, for the 7th Circuit panel said that the 7th Circuit’s first opinion did not preclude this relief, and Judge Adelman should consider it. He did, and today’s ruling is the product of that ruling. (There is a separate Wisconsin federal case, the One Wisconsin Now case, raising a similar as-applied challenge, which remains pending.
  2. Judge Adelman’s decision canvasses (relying in part on evidence from the other case) the difficulties that some voters have faced obtaining “free” state identifications from the state DMV. (The state supreme court, in a separate lawsuit, mandated that DMV adopt procedures for voters with difficulty obtaining id so as not to violate the right of WI residents to vote under the state constitution.) Although it is not clear how many voters are having problems getting the id that wanted them, it is clear from the evidence here and in the other case that some voters are facing serious impediments to voting.
  3. At this stage of the case, the plaintiffs asked Judge Adelman to require the state not just to rely on the DMV procedures for voters who have difficulty obtaining voter id but to allow those voters to vote by affidavit, swearing that they are eligible voters but face an unreasonable impediment in getting a voter id. In today’s ruling Judge Adelman granted that relief. He modeled it after the approach of North Carolina and South Carolina, both of whom created a reasonable impediment procedure when faced with litigation over their voter id laws. (Further update: As Gerry Cohen points out, this remedy is broader than NC, where someone casting a ballot with an affidavit has to file a provisional ballot.)
  4. It is not clear how much voters in NC and SC rely on the reasonable impediment procedures, in part because there is inadequate publicity about them and inadequate knowledge on the part of poll workers and others about this option of voting without id. (I discuss this disjunction between theory and practice in Softening Voter ID Laws Through Litigation: Is it Enough?, Wisconsin Law Review Forward (forthcoming 2016) (draft available)). Nonetheless, the reasonable impediment affidavit is far better than nothing.
  5. The question remains whether the 7th Circuit will agree with this remedy should the state of Wisconsin choose to appeal. Here, there are two issues. First is one of timing. Changes too close to the election appear to be frowned upon under the Purcell Principle. The judge was cognizant of that, not requiring the affidavit option for the August election but requiring for November. I think we are far enough out from November that this does not come too late. The other, more serious question is the scope of the remedy. It could well be that the 7th Circuit was imagining a much more limited remedy, such as allowing individual voters to get an administrative hearing or court order to get id rather than offering the affidavit to all. Or the 7th Circuit might believe the class of voters who should be offered an id must be much narrower, such as those who have tried to go the DMV route but who have been successful. It is not clear to me whether or not the 7th Circuit will agree that the remedy is too broad here.
  6. And then if the 7th Circuit reverses and time is getting shorter, what does a 4-4 SCOTUS do? That’s an interesting question.

[This post has been updated.]

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