Was the 7th Circuit’s Voter ID En Banc Order a 4-4 Compromise a la #SCOTUS?

On Friday, I linked to this per curiam order from the Seventh Circuit in the two WI voter id/voting cases, Frank v. Walker and One Wisconsin Now. In the first case, plaintiffs were trying to make it easier for people without id to vote without an affidavit, in the second, the state of Wisconsin was trying to make it harder for people to vote.

Two years ago, when the en banc 7th Circuit considered an earlier stage of the Frank v. Walker litigation, in which a 7th Circuit panel had upheld WI’s strict voter id law against a facial challenge, the en banc court divided 5-5. But since then one of the conservatives on the court retired, leaving the possibility of a 5-4 vote in Frank to allow people without one of the strict forms of id to vote with an affidavit.

But one of the judges who could have been in such a five-judge majority, Judge Williams, did not participate in the case. We are not told why. It could be health, a need to recuse for some reason, or some other reason.

As Mark Sherman noted when the compromise per curiam order appeared, the unanimous per curiam could mask a 4-4 split.  Imagine if 4 judges wanted to restore the affidavit requirement and 4 did not, and 4 wanted to side with Wisconsin in its other challenge and four did not.  That would leave things standing as they were in any case, and would not do much good.

And it’s not like a 4-4 SCOTUS would be likely to be decisive on this either.

This compromise at least gives the One Wisconsin Now case district court judge a chance to make sure that the DMV alternative is working as the state promises.

This is not nearly as good as the affidavit for those lacking the id.  They will need to make a trip to DMV (presumably during working hours) and then to vote, as opposed to simply submitting an affidavit while voting.  But it is better than nothing, especially with a district court looking over the DMV’s shoulder.

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