This column by ACRU Policy Board member Hans von Spakovsky was published August 10, 2016 by National Review.
The Seventh Circuit Court of Appeals has just issued a stay of the district court decision in Wisconsin, Frank v. Walker that would have forced the state to allow anyone to vote without meeting the state’s voter-ID requirement by simply signing an affidavit declaring he or she couldn’t get an ID.
This was no surprise, given that the district court judge, Lynn Adelman, had essentially thumbed his nose at the Seventh Circuit by not following its prior ruling in this case. And although this is a procedural ruling, not a ruling on the merits, the language of the stay order will give cold comfort to the opponents of the voter ID law in Wisconsin.
As the three-judge panel, led by Judge Frank Easterbrook, says in the stay order, the Seventh Circuit had “concluded that anyone who is eligible to vote in Wisconsin, but cannot obtain a qualifying photo ID with reasonable effort, is entitled to an accommodation what will permit him or her to cast a ballot.” But Judge Adelman, on remand of the case to his court by the Seventh Circuit, “instead of attempting to identify those voters, or to identify the kinds of situations in which the state’s procedures fall short,” instead “issued an injunction that permits any registered voter to declare by affidavit that reasonable effort would not produce a photo ID — even if the voter has never tried to secure one, and even if by objective standards the effort needed would be reasonable (and would succeed).”
Instead, the district court’s injunction ordered the state to allow any registered voter to vote without any ID by checking a box saying he couldn’t get one because of work, family responsibilities, or “other.” As the Seventh Circuit said, “the voter can put anything in the ‘other’ box, including a belief that spending a single minute to obtain a qualifying photo ID is not reasonable.” And yet the injunction forbids state officials from in any way disputing or questioning “any reason the registered voter gives.”
The U.S. Supreme Court upheld Indiana’s voter ID law in 2008 in Crawford v. Marion County Election Board after it concluded that “the inconvenience of making a trip to the [department of motor vehicles], gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.” With that precedent, according to the Seventh Circuit, a “given voter’s disagreement with this approach does not show that requiring one trip to a governmental office is unreasonable.”
Because the district court failed “to distinguish genuine difficulties” or “any other variety of substantial obstacle to voting, from any given voter’s unwillingness to make the effort that the Supreme Court has held that a state can require, there is a substantial likelihood that the injunction will be reversed on appeal” (emphasis added).
That legal language is virtually the kiss of death for anyone seeking an injunction. Since Wisconsin’s voter-ID law has already been in place for elections this year, allowing the injunction would also cause a “disruption of the state’s electoral system” that “will cause irreparable injury” according to the Seventh Circuit.
It should be noted that the Frank case is in the Eastern District of Wisconsin. There is a second voter case in the Western District, One Wisconsin Institute v. Thomsen, in which another federal judge who apparently doesn’t like to follow Supreme Court precedent either issued a decision striking down the state’s voter ID law (as well as some other changes to election rules) as unconstitutional on July 29. Brad Schimel, Wisconsin’s attorney general, has also asked the Seventh Circuit for an emergency stay of that decision. Stay tuned.