7th Circuit Court of Appeals lifts stay of Wisconsin voter ID law

The 7th Circuit Court of Appeals today reinstated Wisconsin’s voter photo identification law struck down earlier this year by the U.S. District Court for Wisconsin. You can read the order Here (.pdf).

The Wisconsin State Journal reports, Federal appeals court reinstates voter ID requirement:

U.S. District Judge Lynn Adelman struck the law down as unconstitutional in April, saying it unfairly burdens poor and minority voters who may lack such identification. Republican Attorney General J.B. Van Hollen asked the 7th Circuit Court of Appeals in Chicago to overturn that ruling.

The 7th Circuit issued a ruling late Friday afternoon lifting Aldeman’s stay and allowing the law to go into effect before the November elections.

State attorneys asked a three-judge 7th Circuit panel during oral arguments on Friday to immediately reinstate the law.

Van Hollen’s appeal remains in play, however. The judges say they’ll issue a ruling on the merits later.

Rick Hasen at Election Law Blog writes Breaking: 7th Circuit Allows WI Voter ID Law to Go Into Effect Immediately:

From the order:

After the district court’s decision, the Supreme Court of Wisconsin revised the procedures to make it easier for persons who have difficulty affording any fees to obtain the birth certificates or other documentation needed under the law, or to have the need for documentation waived. Milwaukee Branch of NAACP v. Walker, 2014 WI 98 (July 31, 2014). This reduces the likelihood of irreparable injury, and it also changes the balance of equities and thus the propriety of federal injunctive relief. The panel has concluded that the state’s probability of success on the merits of this appeal is sufficiently great that the state should be allowed to implement its law, pending further order of this court.

This is a big, big mistake for election administration reasons (regardless of how the court ultimately comes out) and I expect now an emergency motion to the Supreme Court, based upon Purcell v. Gonzalez, to stop this counting. I think there’s a decent chance the Supreme Court could intervene on this.

I think this also is fairly indicative that the 7th Circuit panel will be overturning the district court ruling finding WI’s voter id law violating both the Constitution and Section 2 of the Voting Rights Amendment.

In an earlier post, Hasen explained it is a Very Bad Idea to Implement WI Voter ID Just Before the Election:

I’ve explained why we shouldn’t be surprised if the 7th Circuit reverse the district court in the Wisconsin voter id case and rejects both the constitutional and Voting Rights Act section 2 claims brought against it.

But it sounds like the judges may be ready to order (within days, I’d expect) use of the voter id in this election—which has been on hold thanks to the district court order and subject to a stay.  WI had asked to lift the stay, and the 7th Circuit put that ruling on hold pending today’s hearing.

Making changes in election rules as voting gets underway (think of overseas and military voters, for whom the process starts 45 days before election) is likely to create a great deal of confusion and uncertainty. It is hard enough to administer an election with set rules—much less to change the rules midstream. [Update: “@Wisconsin_GAB spokesman says 11,815 absentee ballots have already been mailed to WI voters without photo ID instructions. #news3.”]

Here’s what the Supreme Court said in Purcell v. Gonzalez, when the 9th Circuit put Arizona’s voter ID law on hold after a district court let it go into effect pending a trial on the merits:

Faced with an application to enjoin operation of voter identification procedures just weeks before an election, the Court of Appeals was required to weigh, in addition to the harms attendant upon issuance or nonissuance of an injunction, considerations specific to election cases and its own institutional procedures. Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.

That of course was the mirror image of today (district court said the ID law was OK, appellate court said no at the last minute). But the argument is more compelling going in this direction, where there will be a flood of people needing id for this election AND training of personnel and others for how to implement the new id laws.  This is untested and I agree with the ACLU that implementing it now would be a disaster.

The panel of judges were Judges Easterbrook, Sykes, and Tinder. The first two voted against rehearing the Crawford case upholding Indiana’s voter ID law.  Judge Tinder joined the court after that case.

“Judge Richard Posner, who wrote the majority opinion in Crawford,  generated quite the hullabaloo when he suggested in a book — and later confirmed to a reporter — that he was wrong to uphold Indiana’s voter ID law.” Judge Posner: I Never Said My Opinion Was Wrong:

The controversial passage in his book is just a single sentence on page 85: “I plead guilty to having written the majority opinion (affirmed by the Supreme Court) upholding Indiana’s requirement that prospective voters prove their identity with a photo ID—a type of law now widely regarded as a means of voter suppression rather than of fraud prevention,” he wrote.

The line didn’t get much attention until HuffPost Live’s Mike Sacks asked Judge Posner about it in an interview that aired Oct. 11 (fast-forward to the 8:40 mark). The reporter read the passage to the judge and asked him if he and the court had gotten the case wrong. “Yes, absolutely,” Judge Posner replied. Judge Posner doesn’t mention the interview in his New Republic piece.

* * *

Judge Posner now says he never disavowed the 2007 opinion he wrote for the 7th U.S. Circuit Court of Appeals in Crawford v. Marion County Elections Board. Writing in the New Republic, he says:

I did not say that my decision, and the Supreme Court’s decision affirming it (written, be it noted, by the notably liberal Justice Stevens), were wrong, only that, in common with many other judges, I could not be confident that it was right, since I am one of the judges who doesn’t understand the electoral process sufficiently well to be able to gauge the consequences of decisions dealing with that process.

He says the point he was trying to make in his new book, “Reflections on Judging,” was that “in many cases judges can’t have any confidence in the soundness of their decisions if they do not have empirical data concerning the likely consequences of deciding the case one way rather than another.”

* * *

So what to make of Judge Posner’s latest turnabout? “I do not believe it is credible given his Huffington Post comments,” University of California-Irvine law professor Richard Hasen, an electoral law expert who was critical of Judge Posner’s opinion in Crawford, told Law Blog.

This panel of the 7th Circuit Court is repeating its error in Crawford.