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7th Cir. Revives Challenge to Wisconsin Voter ID Law

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By Casey C. Sullivan, Esq. on April 14, 2016 2:01 PM

When Wisconsin passed a voter ID law in 2011, requiring voters to present photo identification at the voting booth, opponents argued that the law unfairly punished those who had difficulty obtaining photo IDs. Such laws often make voting disproportionately difficult for minorities and the poor. But when those opponents sued, they lost. The Seventh Circuit ruled that the entire law cannot be enjoined just because "some voters faced undue difficulties."

But in a ruling by Judge Easterbrook on Tuesday, the Seventh Circuit breathed new life into the laws challenge, finding that individuals who faced extreme difficulty in obtaining a photo ID could still challenge the law.

Past Loss Doesn't End the Challenge

The law's opponents had originally been successful in district court, winning an injunction against the voter ID law on their first go. That injunction was overturned by the Seventh Circuit, however, who found it incompatible with Crawford v. Marion County Election Board. That 2008 Supreme Court case upheld a similar voter ID law in Indiana, despite similar arguments that it made it more difficult for some groups to vote.

After that loss, the opponents returned to court, arguing that the law violated the rights of those who faced nearly insurmountable obstacles to obtaining an ID -- and that those people alone should be entitled to vote despite the law.

This time, the district court rejected those arguments, finding that they had been foreclosed by the Seventh's earlier decision. Not so, the Seventh ruled. The new challenges are novel enough that the court should hear them.

Who Can't Get an ID?

Critics of the law focused their challenge around three types of people for whom obtaining a photo ID requires much more than a trip to the DMV. As described by the Seventh, they are:

(1) eligible voters unable to obtain acceptable photo ID with reason able expense and effort because of name mismatches or other errors in birth certificates or other necessary documents;

(2) eligible voters who need a credential from some other agency (such as the Social Security Administration) that will not issue the credential unless Wisconsin's Department of Motor Vehicles first issues a photo ID, which the DMV won't do until the other credential has been obtained;

(3) eligible voters who need a document that no longer exists (such as a birth certificate issued by an agency whose records have been lost in a fire).

It's an open question whether Wisconsin's law violates those voters' rights, the Seventh ruled. It also noted that Indiana's law, the one upheld by the Supreme Court, allows similarly situated voters to simply file an affidavit and have their votes provisionally counted. Here, opponents of the law may be entitled to a similar "safety net."

And that's not necessarily a small group. Larry Dupuis, legal director for the Wisconsin American Civil Liberties Union, told the Wisconsin State Journal that the group doesn't know how many people fall into such categories throughout the state -- but that there are more than 1,500 of them in Milwaukee alone.

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