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Wis. Voter ID Law: No Rehearing on Stay of District Court's Order

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By Mark Wilson, Esq. on October 01, 2014 12:34 PM

So here's where we are in the saga of Wisconsin's voter ID law. Last month, a three-judge panel of the Seventh Circuit heard oral arguments on the legality of the state law requiring, like many states' laws these days, state-issued photo IDs in order to vote. Hours after the oral arguments, the panel issued an order staying enforcement of the district court's order -- meaning the state can enforce the law pending outcome of the appeal.

The ACLU sought an emergency motion to reconsider the stay. Yesterday, the court issued its opinion on this motion: The panel denied the motion, along with a sua sponte request to rehear the motion en banc (because the request for an en banc rehearing was a 5-5 split, the en banc rehearing was denied) in a contentious opinion that saw a dissent by the five judges in favor of rehearing.

It's Just Not That Big a Deal

Because likelihood of success on the merits is "the first and most important question," the court is essentially called on to determine the merits of the case. This might strike one as odd: Judges ask rhetorically what is the likelihood of success on the merits even as they are the very same people who will decide the merits of the case.

The second concern was determining the public interest in enforcing laws passed through the democratic process; the court noted that in both the Wisconsin and Indiana marriage law cases, it allowed enforcement of the laws pending the outcome of the appeal. The court also took a dim view of harm to voters, who have had since 2011 to obtain photo IDs, suggesting that it was no emergency if people had three years to obtain an ID but did not. And, notably, the per curiam denial didn't seem to care much that 300,000 registered voters -- about half the population of Milwaukee -- would be ineligible to vote.

Dissent: 300,000 People Is a Pretty Big Deal

The dissent suggested that it was the panel that had altered the status quo in this case by staying enforcement of the district court's order. Furthermore, it found that not permitting 300,000 otherwise-eligible voters (ineligible only because they lack the necessary photo ID) to vote was a serious injury: "The right to vote is also held, and held equally, by all citizens of voting age. It simply cannot be the answer to say that 90% of registered voters can still vote. To say that is to accept the disenfranchisement of 10% of a state's registered voters; for the state to take this position is shocking," wrote Judge Ann Claire Williams, who was joined by Chief Judge Diane Wood and Judges Posner, Hamilton, and Rovner.

A line of case law from the U.S. Supreme Court supported the contention that courts should not change the rules so close to an election, as the Court declined to do in several cases. Nor does it follow that the state will be irreparably harmed without a photo ID requirement, as "[t]he state has conducted hundreds of elections without a voter identification requirement" and, indeed, was in the process of preparing to conduct this election without the necessity of photo IDs.

Brave words, but given that all three members of the panel signed on to the per curiam opinion lifting the stay, using the language it used, it's extremely unlikely that they would also find the law unconstitutional. This opinion wasn't an opinion on the merits -- but at the same time, it kinda was.

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