Breaking: WI Voter ID Plaintiffs File Emergency 7th Circuit En Banc Petition for ID Softening

Via Josh Gerstein comes this petition, filed very quickly by the Voting Rights plaintiffs in the Wisconsin voter id case. It asks the full 7th Circuit to reverse the stay of the affidavit softening order by the trial court in the Wisconsin voter id case.

As I explained yesterday:

In an order issued today, the Seventh Circuit in Frank v. Walker has put on hold the softening of Wisconsin’s voter id law which a trial court had ordered a few weeks ago. That softening required Wisconsin officials to accept an affidavit from a voter that he or she had a reasonable impediment to getting one of the narrow ids WI allows for voting in the election. It was a very broad affidavit which would allow many more people who lack the ids to vote…..

In practical effect, given the timing close to the election, this means no affidavit requirement will apply in the upcoming Wisconsin November elections unless this order is further reversed by the full 7th Circuit (sitting en banc) or by the Supreme Court.  Well how likely is that?

The plaintiffs could well go to the full 7th Circuit en banc, and as I noted in my post on the district court’s order, the Seventh Circuit has recently gone from a 5-5 split on the question of the propriety of these voter ids to one that now appears to be 5-4 skeptical of these id requirements. But that doesn’t necessarily translate into a 5-4 vote to reverse the stay and put the affidavit softening in place. One issue will be timing. Another is whether the softening comports with what has happened earlier in the case and with Crawford.

Whatever the full 7th Circuit might do, I expect that is likely the last word (unless there is a Purcell/timing question posed). The Supreme Court on the merits could well split 4-4 if and when the case gets there.

From the petition:

First, the panel order involves a question of exceptional importance because,“with this November’s elections fast approaching,” it imposes a stay that “will substantially injure numerous registered voters in Wisconsin, and the public at large, with no appreciable benefit to the state.” Frank v. Walker, 769 F.3d 494, 498 (7th Cir. 2014) (Williams, J., dissenting from the denial of rehearing en banc panel order granting stay); see also Frank v. Walker, 135 S. Ct. 7 (2014) (vacating stay, as dissenting circuit judges would have done). The panel order does this by blocking the district court’s preliminary injunction, which created a safety net allowing voters who cannot obtain ID with reasonable effort to vote by affidavit this November—an affidavit that is almost identical to the type of affidavits used in other voter ID states. See Attached Exhibits A-C. The order shreds that safety net even though the panel held just four months ago that “[t]he right to vote is personal and is not defeated by the fact that 99% of other people can secure the necessary credentials easily,” and that a “safety net” is required to protect the fundamental right to vote of those voters who are “unable to get acceptable photo ID with reasonable effort.” Frank v. Walker, 819 F.3d 384, 386-87 (7th Cir. 2016) (“FrankII”). And the panel order utterly ignores the district court’s extensive factual findings that many vulnerable voters continue to be unable to obtain ID with reasonable effort, even under DMV’s allegedly new and improved procedures. Dkt. 294 at 22-31.1 The record below demonstrates that the panel’s “premise[]” “that the state is likely to succeed on the merits . . . is dead wrong,” and for the panel to “accept the disenfranchisement” of Wisconsin’s most vulnerable voters this November is “shocking.” Frank, 769 F.3d at 498, 500 (Williams, J., dissenting from denial of rehearing en banc).2 Indeed, the panel decision now puts the Seventh Circuit significantly out of step with recent cases that have prevented strict voter ID laws from taking full effect this November.3

Second, the panel decision misapplied the four-factor test for granting a stay pending appeal set forth in Nken v. Holder, 556 U.S. 418, 434 (2009). Although “irreparable harm to the party seeking the stay is one of the two ‘most critical’ factors in deciding whether to issue a stay, . . . it is very hard to see any irreparable harm to the state.” Frank, 769 F.3d at 500 (Williams, J., dissenting from denial of rehearing en banc) (quoting Nken, 556 U.S. at 434). Here, unrefuted evidence from elections officials establishes that implementing an affidavit remedy by November is not only entirely practicable, Dkt. 294 at 37, but desirable from an elections administration perspective, Dkt. 280-8, 280-9. And “[t]he scale balancing the harms here . . . is firmly weighted down by the harm to the plaintiffs. Should Wisconsin citizens not have their votes heard, the harm done is irreversible. . . . On the other side of the scale is the state’s interest in guarding against a problem it does not have and has never had.” Frank, 769 F.3d at 501 (Williams, J., dissenting from denial of rehearing en banc). Rather than apply these factors properly, the panel order relies largely on a speculative parade of horribles that the affidavit will be misused by voters who might be able to obtain ID with reasonable effort. But such speculation is unsupported by evidence, see, e.g., Ezell v. City of Chicago, 651 F.3d 684, 710 (7th Cir. 2011), and fails to “‘give deference to the discretion of the District Court’” in its weighing of the relevant preliminary injunction factors and crafting practicable relief. Frank, 769 F.3d at 499 (Williams, J., dissenting from denial of rehearing en banc) (quoting Purcell v. Gonzalez, 549 U.S. 1, 4 (2006)); Planned Parenthood of Ind. v. Comm’r. of Ind. State Dept. of Health, 699 F.3d 962, 981 (7thCir. 2012) (appellate review of district court’s balancing of relative harms to parties and public interest is “deferential”).

Third, it is especially important immediately to vacate and rehear the panel’s stay decision on an emergency basis, because this is likely the only opportunity the full en banc Court will have to prevent the disenfranchisement of the most vulnerable voters among us this November (unless this Court grants Plaintiffs’ pending Petition for Initial En Banc Hearing, ECF No. 13).

For these reasons, “[t]he district court’s injunction . . . should remain in place, and the panel’s order lifting that injunction should be revoked.” Frank, 769 F.3d at 498 (Williams, J., dissenting from the denial of rehearing en banc). Plaintiffs respectfully request that this Court do so as soon as possible.

[This post has been updated.]

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