'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'...
By Ernest A. Canning on 9/18/2014, 1:30pm PT  

With "electoral chaos" said to be reigning in Wisconsin following last week's extraordinary ruling by three Republican appointees to the federal bench, the American Civil Liberties Union (ACLU) has filed an Emergency Petition for Rehearing En Banc [PDF] before the full U.S. 7th Circuit Court of Appeal.

The ACLU is seeking the immediate reinstatement of the District Court's injunction of the state Republicans' Photo ID voting law. The lower court had previously found the statute to be, in no uncertain terms, in violation of both the U.S. Constitution and the federal Voting Rights Act.

When they later file briefs, the ACLU and other attorneys representing the plaintiffs in Frank v. Walker will undoubtedly go into greater depth to explain how the three GOP members of the 7th Circuit panel erroneously interpreted the U.S. Supreme Court's 2008 decision in Crawford vs. Marion County Elections Board and how the WI law, "Act 23", is "materially different from" the Photo ID law passed by Indiana Republicans and approved by SCOTUS in 2008.

The emergency filing, however, zeroes in on what the ACLU describes as chaos and disenfranchisement that will likely be caused by an "extraordinary decision" last week, which, they say, seeks to effectuate a "slapdash implementation" of a radical and complex change in the Badger State's election law just seven weeks prior to the November 2014 general election...

'6,000 Photo IDs Per Day'?!

By its express terms, Wisconsin's Act 23 contemplated it would take between eight to sixteen months to roll out. The ACLU observed:

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…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.

Pointing to the District Court's factual findings, the ACLU added that the "DMV has only 92 offices statewide...and in 48 counties representing over a quarter of the state's population, those offices are open only two days a week for a total of ten hours. DMV is simply incapable of processing a substantial number of applications from the 300,000 registered voters without ID."

Walker's Gamesmanship?

The new filing suggests that, with Republican Governor Scott Walker's re-election hanging in the balance, the state may have purposely dragged its feet in implementing changes that were imposed by the Wisconsin Supreme Court, when, on July 31, 2014, it lifted then-pending state court injunctions. (Before the recent decisions at the state Supreme Court and by the three-judge federal appellate panel, the law had been repeatedly struck down at both the state and federal levels.)

Even the highly partisan Wisconsin Supreme Court recognized "the 'severe burdens' imposed by Act 23," according to the ACLU. In an effort to salvage the fatally flawed statute, that Court directed that the WI DMV to "make free IDs available to those who otherwise had to pay for documents like birth certificates to get ID."

The state, according to the ACLU's emergency filing, delayed any official action on that WI Supreme Court directive until September 12, when, during oral arguments before the 7th Circuit panel, Walker's legal counsel revealed, for the first time, that the "DMV had issued new emergency rules that purport to address the identified deficiencies."

Those new rules became effective this week, Monday, September 15, for the very first time, just seven (7) weeks before Election Day.

The DMV estimates that, under the new rules, it will take eight (8) weeks to verify identification of voters who were born in other states. "Almost 47% of eligible Milwaukee voters without ID were born outside Wisconsin. This population is disproportionately comprised of Blacks and Latinos, who are more likely than whites to lack both ID and a document needed to get ID, such as birth certificates," according to the ACLU petition.

The ACLU also charges that the all-Republican, three-judge 7th Circuit panel based its decision to immediately stay the lower court's injunction upon the new ID rules that Walker's attorneys filed with the court after oral argument. The new DMV processes for granting IDs were not provided to the plaintiffs earlier, in what amounts to a denial of due process. The plaintiffs, therefore, had no opportunity to respond, and point out the irreparable harm to voters who presently lack the requisite ID.

Breaking Precedent

"Supreme Court precedent and other Circuits," the ACLU forcefully argues, "uniformly caution against such eleventh-hour changes to the election laws, even where those courts have approved those changes for future elections." Indeed, the Supreme Court has admonished our federal intermediate appellate courts "against last-minute reversals of lower court election law rulings." An order to stay an injunction in such cases also requires a clear showing of irreparable harm to the party seeking the stay.

Permitting the election procedures under which Wisconsin has been operating "to remain in place for one more election" will not "result in irreparable harm to the state," the Emergency Petition argues.

The fact that Walker may not receive the majority of votes lawfully cast in a fair and free election, it would seem, is a far cry from what our courts can consider to be "irreparable harm."

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.

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