Breaking: 7th Circuit Refuses En Banc in Both WI Voter ID Cases; No More Changes Unless #SCOTUS Intervenes

A unanimous 7th Circuit issued this order en banc refusing to place the affidavit requirement to soften voter id back into effect at this point, and rejecting the other cross appeals. This would leave only the Supreme Court as a place to go to appeal, and relief there seems quite unlikely

To recap, in the Frank case, the trial court ruled that because some voters will have a hard time voting without voter id given Wisconsin’s strict list of acceptable ids, any voter without id could sign an affidavit saying he or she had a reasonable impediment to getting the id and would be allowed to vote. A Seventh Circuit panel put that ruling on hold for this election, and plaintiffs went to the full 7th Circuit to get it reinstated. Meanwhile, a separate court in the One Wisconsin Now case did not impose a voter id requirement, but confirmed that for this election Wisconsin is going to make it easy for people without id to get that id.

The reason the 7th Circuit was unanimous, and did not split badly as it did in the first round of the Frank v. Walker litigation (when the Court split 5-5 over the facial unconstitutionality of Wisconsin’s voter id law), is that thanks to the One Wisconsin Now litigation, for the upcoming election, Wisconsin is going to make it easy for people to get a temporary id from the DMV:

Frank II held 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 the state may not frustrate this right for any eligible person by making it unreason‐ ably difficult to obtain a qualifying photo ID. Id. at 386. The district court in One Wisconsin Institute concluded from this that an eligible voter who submits materials sufficient to initiate the IDPP is entitled to a credential valid for voting, un‐ less readily available information shows that the petitioner is not a qualified elector. The court in One Wisconsin Institute also held that the state must inform the general public that those who enter the IDPP will promptly receive a credential valid for voting, unless readily available information shows that the petitioner is not a qualified elector entitled to such a credential. 2016 U.S. Dist. LEXIS 100178 at *181–82. This court denied the State’s motion to stay the Western District’s injunction pending appeal. See Order, One Wis. Inst., Inc. v. Thomsen, Nos. 16‐3083 & 16‐3091 (7th Cir. Aug. 22, 2016).   The State assures us that the temporary credentials required in the One Wisconsin Institute decision will indeed be available to all qualified persons who seek them. In its response to the petition for initial hearing en banc in Nos. 16‐ 3003 and 16‐3052, it said this: ʺ[T]he State has already voluntarily accommodated any concerns relating to the November 2016 election. Specifically, Wisconsin has enacted a rule that requires the Division of Motor Vehicles (‘DMV’) to mail automatically a free photo ID to anyone who comes to DMV one time and initiates the free ID process. See Wis. EmR1618, § 10. No one must present documents, that, for some, have proved challenging to acquire; no one must show a birth certificate, proof of citizenship, and the like. Id. § 6.” Resp. to Pet. For Initial Hr’g En Banc at 1, Frank v. Walker, Nos. 16‐3052 & 16‐ 3003 (7th Cir. Aug. 8, 2016) (emphasis in original). Given the State’s representation that “initiation” of the IDPP means only that the voter must show up at a DMV with as much as he or she has, and that the State will not refuse to recognize the “initiation” of the process because a birth certificate, proof of citizenship, Social Security card, or other particular document is missing, we conclude that the urgency needed to justify an initial en banc hearing has not been shown. Our conclusion depends also on the State’s compliance with the district court’s second criterion, namely, that the State adequately inform the general public that those who enter the IDPP will promptly receive a credential for voting, unless it is plain that they are not qualified. The Western District has the authority to monitor compliance with its injunction, and we trust that it will do so conscientiously between now and the November 2016 election.

I believe, but I’m not sure, that this disposes of all of the issues in front of the en banc court now, meaning no more changes to the rules put in place by the courts. The only way this could change would be if either the plaintiffs or the state go to the U.S. Supreme Court. Given the lateness of time and upcoming preparations for early voting, and given the 4-4 ideological split on SCOTUS (with 5 votes needed to make a change), I think this is the end of the line for this election.

After the election, these cases will get further review in the 7th Circuit.

[This post has been updated. See also my updated post,Was the 7th Circuit’s Voter ID En Banc Order a 4-4 Compromise a la #SCOTUS?]

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