By Jon Sherman | December 1, 2014
The full U.S. Court of Appeals for the Seventh Circuit has split 5-5 on whether to restore the injunction blocking Wisconsin's voter ID law for this election. Since the full court deadlocked, the three-judge panel's decision to stay the injunction -- or let the ID law go into effect -- will stand, absent intervention by the U.S. Supreme Court (which so far has not been sought). There is an 11th seat for an active judge on the court, but that tie-breaking seat has remained vacant since January 2010.
Following the 5-5 vote, the panel issued an opinion explaining its reasons for denying the request for rehearing and voting against the full court's review, and the five judges who voted for continuing to block the ID law for this election filed a dissent. Both sides argued about the meaning of a 2006 Supreme Court opinion, Purcell v. Gonzalez. In Purcell, a district court had allowed Arizona to implement its new voter ID law, but with weeks left before the election, the Ninth Circuit issued an emergency stay, blocking the law pending its final decision. The Supreme Court unanimously reversed the Ninth Circuit, finding that court orders changing the status quo so close to an election risk voter confusion and suppress participation. With the election mere weeks away and thousands of absentee ballots already mailed without ID instructions, hundreds of which have been returned without ID, the dissenting Seventh Circuit judges reasonably think Purcell requires blocking the law for this election (whatever the ultimate decision on the ID law's legality).
It is unclear why the other five judges who voted to let the law go forward think this case is different from the Arizona ID case. However, the most telling sentence is the following: "There is a profound difference between compelling a state to depart from its rules close to the election (Purcell) and allowing a state to implement its own statutes (this case)." Huh? What about the voter or the right to vote? The law balances individual rights against state interests, but reading this opinion, you would think that only the state government's interests are valid considerations. These five judges are far more concerned with Wisconsin's ability to implement a law immediately (after it has been blocked for 2.5 years) than they are with the rights of 300,000 voters, many of which are unlikely to be able to obtain valid ID in just seven weeks. The real difference between Purcell and this case is that the status quo in Purcell was that a voter needed to show ID, and the status quo here was that a voter did not (since February 2012). Sure, free voter IDs have been available at DMV offices, but all public education and outreach on the law ceased when the law was blocked. If anything, the risk to voters from such a last-minute change to the status quo and the bureaucratic maze they face to obtain a license to vote should counsel even more strongly in favor of keeping the law switched off until there's a final decision finding it lawful.
This opinion makes it plain -- these judges are not concerned with the right to vote. During oral argument, Judge Frank Easterbrook equated the minimal burdens of registering to vote with the difficulty of obtaining birth certificates, Social Security Cards, and other documents and then traveling to an often-distant DMV office during daylight hours to obtain a voter ID card. Easy! A judge who makes this kind of disingenuous comparison either hasn't read the record in this case, doesn't care, or thinks a state's right to implement any law marginally related to voting trumps the right to vote. Never mind that the state failed to produce a shred of evidence of impersonation voter fraud in Wisconsin. These judges were happy to suspend the injunction after the state announced (but had not implemented) new birth verification procedures for voters seeking an ID without any evidence in the record that the procedure will work to secure voter IDs for ID-less voters -- and in a timely manner. That's the way faith works, not the law.
So the state wins with no evidence, but the plaintiffs lose because the court wrongly believes the record contains no evidence that 53 days is too little time to implement the law and secure IDs for voters who have long lacked the necessary primary documents. Each of the individual plaintiffs in this case faced, not just weeks, but years of ordeals or ultimately insurmountable barriers in trying to obtain a state ID card. They're not alone; expert witness testimony at trial showed they represent thousands of Wisconsin voters in the same boat. Many voters, particularly elderly, every-election voters with variations of their names on different documents, were forced to beg state legislators to intervene and ask DMV agents to bend the rules and issue an ID. One plaintiff in the suit applied for her birth certificate in Louisiana and, after weeks, was issued a copy of her sister's birth certificate. That's evidence. Where is the state's evidence that enough voters to fill four Lambeau Fields will get their IDs before November 4th? Its lawyers have none.
This fits a pattern in these ID cases. The courts have required mountains of evidence of harm to voters' rights, but no evidence from the state that ID laws advance electoral integrity and actually prevent fraud. In Crawford, the original Supreme Court case upholding Indiana's photo ID law, there was zero evidence of harm to voters. Now that a federal court has been given the mountains of evidence of harm they asked for... it still doesn't matter. As long as the state is not required to justify its ID laws with facts and introduce evidence that its last-minute procedural changes actually cure constitutional and Voting Rights Act violations, they will always win. Always. Americans are cynical enough to understand that the law and justice don't always travel together, but here it isn't just that the outcome is unfair; the game itself is rigged.
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Jon Sherman is an attorney with the Fair Elections Legal Network.
Read the op-ed online at: https://www.huffpost.com/entry/rigging-the-game-for-wisc_b_5916668