[EL] Breaking: Wisconsin voter id case

Mon Mar 23 11:22:24 PDT 2015

You don't have to produce the underlying document, e.g. the birth
certificate or naturalization certificate, but they don't issue the free
voter ID automatically. On the eve of oral argument in the 7th Cir.,
Wisconsin DMV rolled out a petition process for those unable to produce a
birth certificate without applying to a vital records office at a cost. The
Document Verification Process petition is attached. The DMV site lists the
following two eligibility criteria
<http://www.dot.wisconsin.gov/drivers/drivers/apply/petition-process.htm>:
"1. ID Card applicants must be U.S. Citizens, at least 17 years of age, and
indicate that the ID card is required free of charge for the purposes of
voting; and 2. ID Card applicants must claim that documents required to
prove U.S. Citizenship, name and date of birth and/or legal name change are
unavailable and require a fee to a government agency to obtain." So, if
these criteria were met, instead of requiring you to pay for and present
the documentary evidence, the DMV will now verify your citizenship or legal
name change itself. As Justin notes, this was done to satisfy the Wisconsin
Supreme Court's decision in *NAACP v. Walker*, which upheld the law but
found a constitutional problem with forcing people to procure their birth
or naturalization certificates at charge, and to throw a monkey wrench in
the litigation.

Though there's of course a larger context to the burdens imposed,
underlying document issues, typically but not exclusively birth certificate
problems, were the heart of the matter. This petition process wasn't part
of the record up on appeal; nor was there any evidence that the new
petition process was actually helping ID-less voters acquire ID. But that
didn't stop the 7th Cir. panel from relying in part on this new and wholly
untested petition process implemented over a month after the July 31, 2014
decision in *NAACP v. Walker* and just days before the 7th Cir. oral
argument, stating:

Between the trial and the argument of this appeal, however, the Supreme
Court of Wisconsin directed state official to issue photo IDs without
requiring applicants to present any document that must be paid for. *Milwaukee
Branch of NAACP v. Walker*, 2014 WI 98 ¶¶ 66-70. Moreover, Wisconsin
recently issued regulations requiring officials to get birth certificates
)or other qualifying documents) themselves for persons who ask for that
accommodation on the basis of hardship. Emergency Rule 14, Wis. Admin. Reg.
704b (August 31, 2014). So at the time of trial it was no harder to get
supporting documents in Wisconsin than in Indiana, *and today it is easier
in Wisconsin than in Indiana.*

(Emphasis added.) Judge Easterbrook qualified this wildly unsupported claim
only slightly by dropping a footnote: "*Milwaukee Branch of NAACP *and the
regulations leave much to the discretion of the employees at the Department
of Motor Vehicles who decide whether a given person has an adequate claim
for assistance or dispensing with the need for a birth certificate. Whether
that discretion will be properly exercised is not part of the current
record, however, and could be the subject of a separate suit if a problem
can be demonstrated." Though this particular 7th Cir. panel would never
have been inclined to do this, given the legal change pending appeal and
the factual uncertainty it created on a material issue, they could have
vacated the district court's judgment and remanded the case for further
discovery and a new trial on whether the petition process was working and
whether it was curing or would cure the constitutional and VRA violation.
The "quality" of the 7th Cir. panel's rushed opinion indicate that was
never within the realm of possibility. And it may have simply arrived at
the same point anyway.

On Mon, Mar 23, 2015 at 12:40 PM, Justin Levitt <levittj at lls.edu> wrote:

>  It's worth remembering that the Wisconsin ID case changed on its way
> through the courts.
>
> The original complaint in *Frank v. Walker* was a class action, with
> several proposed classes narrowly focused on relief for the particular
> individuals who would have most difficulty getting the ID in question.  The
> district court granted an injunction against any enforcement of the law,
> period, and so never ruled on the merits of the motion for class
> certification (in light of its facial ruling, the court found the motion to
> be moot).  Likewise, the court of appeals (and presumably SCOTUS)
> considered the case as a facial challenge, not as the more narrowly focused
> challenge that the plaintiffs originally brought.
>
> There's a second way in which the case changed as well: the state IDs got
> somewhat easier to get.  In the frenzy of the runup to the 2014 elections,
> it was easy to overlook the Wisconsin Supreme Court's decision in the NAACP
> v. Walker case in the state court system.  Aside from the factual
> inaccuracies in that opinion (photo ID is not, for example, actually a requirement
> to board a commercially operated airline flight
> <http://summaryjudgments.lls.edu/2012/10/company-at-30000-feet-plane-travel-and_2161.html>,
> no matter how many times judges claim without citation that it is), the
> court found that any voter without the underlying documents to obtain a
> state ID card, who would have to pay for those documents to get them, must
> be given a photo ID without needing to procure the underlying documents.
> That doesn't completely alleviate the hassle of getting a card for those
> who don't already have one ... but it does make the hurdle a bit lower.
> The progress of the Wisconsin litigation mirrored litigation-related
> "clarifications" of the South Carolina ID rule that also made that state's
> ID card incrementally easier to get.
>
> --
> Justin Levitt
> Professor of Law
> Loyola Law School | Los Angeles
> 919 Albany St.
> Los Angeles, CA  90015213-736-7417justin.levitt at lls.edussrn.com/author=698321
>
> On 3/23/2015 8:20 AM, Rick Hasen wrote:
>
> North Carolina cert petition does not involve voter id.  Texas case still
> being briefed in 5th Circuit.
>
> Rick Hasen
>
>  Sent from my iPhone. Please excuse typos.
>
> On Mar 23, 2015, at 8:17 AM, Edward Still <still at votelaw.com> wrote:
>
>   Rick,
>
>    The Court could have held the Wisconsin case to await the NC and TX
> cases, couldn't it? If so, what does the denial of cert today tell us how
> the latter cases will fare?
>
>  Ed
>
> Edward Still
> Edward Still Law Firm LLC
>  429 Green Springs Hwy, STE 161-304
> Birmingham AL 35209
> 205-320-2882
> still at votelaw.com
> www.votelaw.com/blog
> www.edwardstill.com
> www.linkedin.com/in/edwardstill <http://www.linkedin.com/edwardstill>
>
>
>
> On Mon, Mar 23, 2015 at 9:33 AM, Rick Hasen <rhasen at law.uci.edu> wrote:
>
>>   Blessing in Disguise? The Supreme Court’s Refusal to Hear Wisconsin
>> Voter ID Case <http://electionlawblog.org/?p=71186>
>> Posted on March 23, 2015 7:32 am <http://electionlawblog.org/?p=71186> by
>>  Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> This morning the Supreme Court without comment refused to take up
>> <http://www.supremecourt.gov/orders/courtorders/032315zor_b97d.pdf> Frank
>> v. Walker, the Wisconsin voter id case. Taking the case to the Supreme
>> Court divided the civil rights community. As I noted last week
>> <http://electionlawblog.org/?p=71116>, those who hoped the Supreme Court
>> would hear the case were betting that Chief Justice Roberts or Justice
>> Kennedy were going to have the same kind of epiphany that Judge Posner of
>> the 7th Circuit had. Judge Posner had voted to uphold Indiana’s voter id
>> law back in the mid-2000s when it was challenged. Judge Posner saw the
>> requirement as no big deal. But by last year, Judge Posner was writing that
>> such laws have now been generally recognized as a means of suppressing
>> likely Democratic votes than as a means of fraud prevention. (The evidence
>> that such laws deter any significant amount of impersonation voter fraud is
>>  thin indeed
>> <http://www.amazon.com/The-Voting-Wars-Election-Meltdown/dp/0300198248>.)
>> But it is not clear that Kennedy and Roberts, the conservative Justices
>> likely in the middle of the Court on this issue have had a similar
>> religious conversion on the issue. The four liberals could have forced a
>> hearing in this case (by voting to grant cert) but they must not have been
>> confident of the religious conversion either.  Similarly, DOJ has done
>> very littl <http://electionlawblog.org/?p=71116>e to support this case.
>> They are betting on Texas (and to some extent North Carolina), hoping those
>> cases will be better vehicles for getting voter id laws struck down. But
>> relying on Texas to ultimately help Wisconsin is risky. CIn the Texas voter
>> id case, now pending before the 5th Circuit, we have a holding that Texas’s
>> passage of the voter id law was the product of intentional racial
>> discrimination. That’s a finding which should be very hard to reverse on
>> appeal. it provides an easier constitutional path for the Supreme Court to
>> strike down Texas’s voter id law. The upside of that would be a Supreme
>> Court decision striking down a voter id law on constitutional grounds. The
>> downside is that other cases, like Wisconsin, do not involve intentional
>> discrimination and so a Texas holding might not help very much outside of
>> Texas. It would be an outer bound of what’s allowed and forbidden.
>>
>> Had the Court agreed to hear the Wisconsin case, it is possible it would
>> have read Section 2 of the Voting Rights Act even more narrowly in cases of
>> vote denial, as well as make bad law on the scope of the equal protection
>> clause. In this way, the Court’s refusal to hear Wisconsin’s voter id case
>> may be a blessing in disguise. As I’ve long argued, the best way for
>> liberals to cut their losses is to stay out of the Supreme Court
>> <http://www.slate.com/articles/news_and_politics/jurisprudence/2009/09/how_liberals_can_win_by_losing_at_the_roberts_court.html>when
>> possible. Things could have been worse if the Court took Wisconsin than if
>> they didn’t.  And if you trust Justice Ginsburg, trust her her in not
>> voting to grant cert in this case.
>>
>> There’s an immediate question: what about the use of voter ID in
>> Wisconsin in the April 7 election?  ACLU is already moving
>> <http://electionlawblog.org/%20https://www.aclu.org/voting-rights/aclu-moves-block-wisconsin-voter-id-law-following-supreme-court-action>to
>> block its use so close to the election. That seems like a motion likely to
>> succeed. Remember the Supreme Court blocked Wisconsin’s voter id law in the
>> fall from going into immediate effect, likely because there was not enough
>> time for a rollout of the law. The Court apparently applied what I’ve been
>> calling the Purcell principle
>> <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676>: the idea
>> that you don’t change election rules in the period just before the
>> election.  So while we likely won’t see the id in place in an election
>> where early voting is already underway. It’s coming before the 2016
>> elections.
>>  <share_save_171_16.png>
>> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D71186&title=A%20Blessing%20in%20Disguise%3F%20The%20Supreme%20Court%E2%80%99s%20Refusal%20to%20Hear%20Wisconsin%20Voter%20ID%20Case&description=>
>>  Posted in election administration <http://electionlawblog.org/?cat=18>, Supreme
>> Court <http://electionlawblog.org/?cat=29>, The Voting Wars
>> <http://electionlawblog.org/?cat=60>, voter id
>> <http://electionlawblog.org/?cat=9>, Voting Rights Act
>> <http://electionlawblog.org/?cat=15>
>>
>> --
>> Rick Hasen
>> Chancellor's Professor of Law and Political Science
>> UC Irvine School of Law
>> 401 E. Peltason Dr., Suite 1000
>> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.edu
>> hhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
>>
>>
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>
>    _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
>
>
> _______________________________________________
> Law-election mailing listLaw-election at department-lists.uci.eduhttp://department-lists.uci.edu/mailman/listinfo/law-election
>
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>

-- 
Jon Sherman
Staff Attorney
Fair Elections Legal Network <http://www.fairelectionsnetwork.com/>*
1825 K Street NW, Suite 450
Washington, D.C. 20006
Phone: (202) 248-5346
jsherman at fairelectionsnetwork.com
www.fairelectionsnetwork.com
[image: Twitter] <https://twitter.com/fairerelections>[image: Facebook]
<https://www.facebook.com/FairElectionsLegalNetwork>
*The contents of this email should not be construed as legal advice.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20150323/f0b76692/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: DMV Form mv3012.doc
Type: application/msword
Size: 66048 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20150323/f0b76692/attachment.doc>