IT’S BACK ON, WISCONSIN: Seventh Circuit Reinstates Voter ID


[Image courtesy of wisconsinelectionwatch]

With Election Day less than two months away, a federal appeals court has reinstated the State of Wisconsin’s voter ID law. The Journal Sentinel has more:

A federal appeals panel reinstated Wisconsin’s voter ID law Friday, acting with unusual speed eight weeks before the Nov. 4 election and just hours after hearing arguments on the subject.

The move by the U.S. 7th Circuit Court of Appeals clears the way for the state to immediately implement the law, though it does not stop the ongoing appeal over whether the measure is constitutional. State officials responded by saying they planned to have the requirement in place this fall.

“The state of Wisconsin may, if it wishes (and if it is appropriate under rules of state law), enforce the photo ID requirement in this November’s elections,” the judges wrote in an unsigned two-page order.

The appellate court indicated it was satisfied by changes imposed on the law by the Wisconsin Supreme Court in a separate decision this summer.

Those changes – especially a “saving construction” that eliminates the DMV requirement for a birth certificate or other documents requiring fees as part of the process of acquiring a free ID – were enough for the three-judge panel to issue the order:

Under that program, people can submit birth information so state officials can check state and federal databases to find records of their birth. The officials will also review baptismal records, school records or other documents for those who were never issued birth certificates.

The state Supreme Court decision and new process for issuing IDs means “the issue of cost is now off the table,” Sykes said …

The governor approved the rules Thursday and the state submitted them to the court soon after the arguments concluded.

The order came swiftly after oral argument last Friday. During that argument, the panel seemed skeptical of the sweeping ruling issued by the lower court:

U.S. District Judge Lynn Adelman in Milwaukee heard the two federal cases together. This April, he ruled the voter ID law placed an unconstitutional burden on the right to vote and violated the federal Voting Rights Act because minorities are less likely than whites to have IDs.

Adelman found some 300,000 people in Wisconsin do not have IDs and determined requiring people to show IDs at the polls would discount far more legitimate votes than fraudulent ones. He concluded voter impersonation — the only kind of fraud the voter ID law would curb — is essentially nonexistent, noting state officials could not cite any examples of it.

During arguments Friday, Sykes called Adelman’s decision one that gave the plaintiffs “a whopper” of a remedy that she found “hard to reconcile” with a 2008 U.S. Supreme Court decision upholding Indiana’s voter ID law. Easterbrook also questioned how Adelman could render his ruling in light of that decision.

“He took evidence and found the Supreme Court was wrong,” Easterbrook said of Adelman.

Still, the court’s ruling sets up three parallel races against time.

First, plaintiffs in Wisconsin will likely be sprinting to ask the full court of appeals, the U.S. Supreme Court or both to issue a stay of the panel’s ruling. When they do, you can bet they will say that this kind of a change is too big to be made in close proximity to an election:

Rick Hasen, a University of California, Irvine law professor and author of the book “The Voting Wars,” said it was unusual for an appeals court to allow such a significant change to voting procedures this close to an election.

“Even though the (U.S.) Supreme Court could well agree that Wisconsin’s voter ID law is legal, there’s a real chance that the (U.S. Supreme) Court could reverse today’s 7th Circuit order,” Hasen said by email. “The Supreme Court has said that courts should not make changes in the run-up to elections, which can cause voter and election official confusion. The 7th Circuit did not even mention this rule in its order today.”

Second, the state will be rushing to put the new law into effect in time for Election Day:

The head of the state’s election agency said Friday he would do everything possible to get the law back in place in time for the election — something agency officials previously said would be a challenge.

“We are taking every step to fully implement the voter photo ID law for the November general election. We are now focused on communicating with local election officials and voters, and will have more information about the details next week,” said Kevin Kennedy, director of the Wisconsin Government Accountability Board.

One of the first issues officials will have to contend with is how to deal with more than 11,800 absentee ballots that have already been sent to voters.

The voter ID law requires most people to submit photocopies of their IDs with their absentee ballots. Absentee ballots that have already been sent did not include instructions to do that because at that time the law was blocked.

Finally, opponents of the law will be scrambling to ensure that voters who do not have ID can get them in time for November’s vote, which features a tight re-election race for Governor Scott Walker, who supports (and signed) the voter ID bill.

Once again, Wisconsin is facing the unenviable combination of uncertain election laws and a hotly-contested ballot. I expect this story to take several more twists and turns before Election Day.

Stay tuned …

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