[EL] 7th Cir. en banc brief in WI voter id case

Rick Hasen rhasen at law.uci.edu
Wed Sep 17 04:57:31 PDT 2014 

    Read the En Banc Brief in 7th Circuit Wisconsin Voter ID Case
    <http://electionlawblog.org/?p=65563>

Posted onSeptember 17, 2014 4:52 am 
<http://electionlawblog.org/?p=65563>byRick Hasen 
<http://electionlawblog.org/?author=3>

You can find the briefat this link <http://t.co/VMAoU3NM1b>(via Mike 
Scarcella). The brief makes a compelling case, relying on the Supreme 
Court's opinion in Purcell v. Gonzalez 
<http://caselaw.lp.findlaw.com/data2/circs/us/06a375.pdf>and other 
cases, that implementing voter id in Wisconsin at the last minute 
islikely <http://electionlawblog.org/?p=65399>to causeelectoral 
<http://electionlawblog.org/?p=65382>chaos---apoint 
<http://electionlawblog.org/?p=65549>which should becompelling 
<http://www.nytimes.com/2014/09/16/opinion/electoral-chaos-in-wisconsin.html?ref=opinion&_r=0> 
regardless of where you stand on the actual merits of WI implementing 
its voter id lawin an organized way 
<http://www.thenation.com/blog/181604/major-blow-voting-rights-wisconsin>. 
>From the introduction:

    First, the panel decision involves a question of exceptional
    importance under Fed. R. App. P. 35(b)(1)(B) because it imposes a
    radical, last-minute change to procedures for conducting an election
    that is already underway. The risk of disenfranchisement from
    imposing such a last-minute disruption far outweighs
    the non-existent harm to the state of maintaining the status quo and
    not requiring photo ID for one more election. Supreme Court
    precedent and other Circuits uniformly caution against such
    eleventh-hour changes to the election laws, even where those courts
    have approved such changes for future elections. See Purcell
    v. Gonzalez, 549 U.S. 1 (2006).

    Second, the panel?s extraordinary decision to grant a stay pending
    appeal -- which altered rather than maintained the status quo --
    ignored the four-factor test for such relief set forth by the United
    States Supreme Court in Nken v. Holder, 556 U.S. 418, 434 (2009),
    and the Court?s admonition against last-minute reversals of lower
    court election law rulings in Purcell v. Gonzalez, 549 U.S. 1, 4-5
    (2006). Specifically, the panel decision failed to consider that
    issuance of the stay and the consequent slapdash implementation of a
    complex law -- which was designed to have a rollout period of 8
    months before a primary and 16 months before a general election --
    "will substantially injure" the rights of voters without ID, and
    that "the public interest lies" strongly against fundamentally
    changing the rules of an election on the eve of the election,
    particularly where absentee voting is already underway. In addition,
    the panel decision failed to consider seriously one of the "most
    critical" factors. Defendants will not be "irreparably injured
    absent a stay," Nken, 556 U.S. at 434, if the election proceeds
    without a photo ID requirement, as has been the case in all but one
    election in Wisconsin?s history.

Further:

      In this case, the district court found that approximately 300,000
    voters do not have the most common form of ID that would now be
    needed to vote on November 4 (exactly 7 weeks from today), which is
    an unexpired driver?s license or state-issued photo ID. See Frank v.
    Walker, No. 11*--*CV*--*01128, 12*--*CV*--*00185, 2014 WL
    1775432, at *11 (E.D. Wis. Apr. 29, 2014). It is not only
    unreasonable, but also mathematically, logically, and physically
    impossible that by November 4, hundreds of thousands of voters will
    learn about the need for ID, especially given the total suspension
    of public information about the law for two and one-half years,
    collect multiple required documents, get to a DMV office, and obtain
    the ID suddenly required by staying the District Court?s injunction
    last Friday afternoon. Doing so would require Wisconsin to issue
    some 6,000 photo IDs*per day*between now and the election.

What's especially amazing to me is that the 7th Circuit panel's order 
did not even address these issues in its very short order issued on Friday.

And in Wisconsin, where there is a very close race for governor (among 
other races), such a last minute change has the real potential to affect 
electoral outcomes.

It will be interesting to see if this case makes it to the Supreme 
Court, regardless of what the en banc 7th Circuit does.

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<http://electionlawblog.org/?cat=18>,The Voting Wars 
<http://electionlawblog.org/?cat=60>,voter id 
<http://electionlawblog.org/?cat=9>,Voting Rights Act 
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-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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