Breaking: Wisconsin Will Go to 7th Circuit to Block Softening of Voter ID Law: What’s Next?

Wisconsin will seek to reverse the order of the federal district court from earlier this week requiring election officials to allow those who lack the right form of ID to vote in WI elections to be able to vote upon signing an affidavit that they face a reasonable impediment in getting the right form of ID.

The suit will go to the 7th Circuit, presumably to the Easterbook-led panel again—the same court that sent the case back to Judge Adelman in the district court and told him to entertain a remedy for those voters who face special burdens in obtaining the right form of ID.

The motion for a stay filed in the district court previews the kinds of arguments that Wisconsin will make when, as is inevitable, the trial court denies this motion and an emergency motion is filed in the 7th circuit. The main arguments are that the affidavit is unnecessary, as the DMV procedures are good enough, and that in any case the affidavit is overbroad (because it would allow filling in “other” and any excuse for filing the id.

What will the 7th Circuit do?  I’m not sure. It would not surprise me if the court trimmed the id requirement back a bit. But it is possible that the court does nothing and sees how it goes this election, or that it rejects the affidavit entirely.

Whatever the 7th Circuit does could be taken en banc, and the last time that court divided 5-5 on what to do. That could happen again if the 7th Circuit gets rid of the affidavit entirely for the next election. [Update: Bill Groth reminds me: Since the 7th Circuit deadlocked 5-5 in Frank v. Walker, Judge Tinder, who voted with the Easterbrook faction to uphold the law, retired. There are now just 9 active judges with no confirmations imminent. Thus, there can’t be another 5-5 split if the case were to go en banc.” That could potentially be good news for supporters of the affidavit requirement.]

And the Supreme Court? I don’t expect there would be 5 votes to do anything, unless it is about an issue of making a change too close to the election.

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