The plaintiffs in One Wisconsin Institute v. Thomsen, one of several long-running court challenges to Wisconsin Republicans' strict Photo ID voting restriction, have filed an emergency petition with the full en banc U.S. 7th Circuit Court of Appeal, asking that it overturn its previous photo ID decision in Frank v. Walker.
The still pending Frank case as well as the One Wisconsin challenge have, to say the least, undergone a circuitous recent history in a number of federal courts that oversee Badger State election law.
In April 2014, after a lengthy trial, U.S. District Court Judge Lynn Adelman struck down and permanently enjoined Wisconsin's photo ID law after finding it in violation of both the 14th Amendment to the U.S. Constitution as well as the Voting Rights Act (VRA).
Republicans in control of the state naturally appealed that detailed and blistering ruling. The federal appeal was assigned to an all-Republican three-judge 7th Circuit panel, headed by Judge Frank H. Easterbrook. Easterbrook is a member of the radical right wing Robert Bork-founded, Koch Brothers-funded "Federalist Society". The ensuing decision to reinstate Wisconsin's photo ID law, despite Adelman's meticulous ruling in the lower court, was so extraordinarily partisan, factually deficient, riddled with errors and legally flawed that it prompted the ordinarily staid U.C. Irvine election law Prof. Rick Hasen to tweet: "I rarely just rant in my blog posts. But Judge Easterbrook caused me to blow a gasket."
Other members of the 7th Circuit were so troubled by Easterbrook's flawed opinion that they took the unusual move of granting a rehearing en banc on their own motion. Because of prior refusals by Congressional Republicans to fill a vacancy on the 7th Circuit with an Obama nominee, at that time of the court's motion there were only ten (10) jurists serving on the full 7th Circuit --- as opposed to the allotted eleven (11) judges. The ensuing 5-5 en banc ruling --- now referred to as Frank I --- left Easterbrook's horribly flawed ruling in place, effectively disenfranchising nearly 10% of Wisconsin's electorate who did not possess or have easy access to the very specific types of Photo ID now required by state Republicans to cast a vote. .
Last April, however, after a disastrous Presidential primary in Wisconsin, where, most visibly, student voters were forced into hours long lines on Election Day in hopes of obtaining a state approved photo ID that would allow them to vote under the GOP law, the Easterbrook panel handed down a decision that appeared designed to ameliorate the widespread disenfranchisement. The ruling --- now referred to as Frank II --- suggested that disenfranchised voters who lack the ability "to obtain a qualifying photo ID with reasonable effort" should be permitted to cast a regular ballot nonetheless.
On July 19, 2016, in what was thought to be compliant with the Frank II directive, the District Court issued a remedial injunction that mandated Wisconsin afford the right to cast a regular ballot to "those who cannot with reasonable effort obtain a qualifying ID", so long as they signed an affidavit to that effect at the polling place. Many, like The Nation's Ari Berman, celebrated, believing that the voting rights of Wisconsin's disenfranchised electorate had finally been restored.
That celebration, it now appears, proved both premature and an underestimate of the level partisan duplicity on the part of the three "radicals in robes" on the Easterbrook 7th Circuit panel...
Bad news, good news, bad news, good news...
On August 10, the Easterbrook panel --- a panel that includes Judge Diane Sykes, who was named by Republican Presidential nominee Donald Trump as someone he would consider nominating to the Supreme Court --- took exception to the notion that voters need merely state that "reasonable efforts would not produce the qualifying ID."
The panel believes that voters should be compelled to describe the efforts they already made to secure the photo ID. The panel took exception to the District Court's ruling that state election officials would be "forbidden to dispute or question any reason the registered voter gives" --- this despite the fact that Texas Republicans agreed to nearly identical terms in a recent court order to remedy the harm caused by the Lone Star State's very similar polling place photo ID restrictions.
In issuing a stay of the District Court's remedial injunction, the Easterbrook panel has again restored the full discriminatory impact of Wisconsin's photo ID restrictions, thereby placing nearly 10% of the lawfully registered voters at risk of disenfranchisement during the upcoming November 8 general election.
On August 11 --- one day after the Easterbrook panel stay order issued --- the Frank plaintiffs filed an emergency petition that suggests that the panel's stay order be reheard en banc before the full 7th Circuit.
Because the stay disproportionately impacts minority voters who most often vote for Democrats, in addition to the Presidential race, the stay, if it is allowed to remain in place this November, could alter the outcome of the U.S. Senate race and possibly prevent Democrats from recapturing majority control of the Senate. According to the latest Marquette poll, in a three candidate race that includes the Libertarian Party's Phil Anderson, former Democratic Senator Russ Feingold leads incumbent Republican Senator Ron Johnson by 9%.
However, there are several factors that point to a likelihood that the One Wisconsin plaintiffs could prevail before the full 7th Circuit, where the initial Frank I ruling resulted in a tie (thus, reverting to the 3-judge panel's ruling.) Most notably, as reported by Ian Millhiser of ThinkProgress, a change in the make up of the full 7th Circuit --- the retirement of a George W. Bush appointed judge --- has now given a 5 to 4 majority status to the appellate jurists who first took the extraordinary step to grant a rehearing on their own motion in order to file their blistering dissent in Frank I.
That new court math may prove to be good news for the plaintiffs, but there remains another obstacle: the Purcell principle. That is a standard applied by the U.S. Supreme Court in recent years preventing last minute changes to election laws, even when found to be necessary to prevent mass disenfranchisement caused by measures that violate the U.S. Constitution as well as the VRA. Such eleventh hour changes, the Court has reasoned, could lead to confusion and disruption at the polls which, somehow, would be even worse than the disenfranchisement caused by an unlawful voting restriction.
In order to prevent mass disenfranchisement on November 8, a majority on the full 7th Circuit will have to promptly lift the stay of the District Court's remedial injunction issued in Frank in order to avoid being undone by Purcell.
It comes as no surprise that the One Wisconsin plaintiffs opened their separate emergency petition with lengthy quotes from the erudite and blistering Frank I dissent that had been authored by Judge Richard A. Posner.
As we previously explained, Posner is not just any judge. He is a renowned legal scholar and Reagan appointee to the federal bench, who has served on the U.S. 7th Circuit Court of Appeal since 1981. More importantly here, Posner was the author of the 7th Circuit's original 2007 decision that was ultimately upheld by the U.S. Supreme Court in Crawford v. Marion County Election Board (2008). In his 2007 Crawford ruling, Posner rejected an allegation that Indiana's polling place photo ID restrictions were unconstitutional.
But new evidence over the ensuing years ultimately appears to have convinced Posner that he was wrong in upholding that early Photo ID restriction.
By the time he issued his Frank I dissent in 2014 --- a dissent we described as a "judicial masterpiece" --- Posner, like former Supreme Court Justice John Paul Stevens, author of the Court's plurality decision in Crawford --- had come to understand that he, and subsequently the Supreme Court, had erred in upholding Indiana's photo ID law. In an all too-rare display of judicial contrition, Posner not only explained why he was wrong in 2007, but went on to hold up, dissect and eviscerate each and every canard that had been proffered by the Easterbrook panel and other proponents elsewhere of laws that impose polling place photo ID restrictions.
With meticulous attention not only to the factual record that was developed during the trial in Frank, but throughout the legal and academic communities during the 6 1/2 years between the Crawford and Frank I decisions, Posner forcefully proved that in-person voter impersonation --- the only type of voter fraud that can possibly be prevented by polling place photo ID restrictions --- is a non-existent threat. The record in Crawford, he noted, "contained no evidence of in-person voter impersonation...'actually occurring in Indiana at any time.'" An expert, he cited, "who studied Wisconsin elections that took place in 2004, 2008, 2010 and 2012 found zero cases of in-person voter-impersonation fraud."
GOP claims that photo ID restrictions are needed to combat "voter fraud", Posner opined in his landmark Frank I dissent, are "a mere fig leaf for efforts to disenfranchise voters likely to vote for the political party that does not control the state government"...
Posner demolished GOP claims that photo ID laws are needed to promote public confidence in elections and noted that, on the record before him, the undue burdens imposed by photo ID legislation falls most heavily upon demographic groups that historically vote for Democrats --- the poor, minorities, students and women, the latter of whom often have the greatest difficulty obtaining precursor documents, such as birth certificates, that match their current married names.
Facts, findings and the case for overturning Frank I
In his One Wisconsin decision, which was issued after yet another lengthy trial on the merits, U.S. District Judge James D. Peterson made a series of factual findings that add weight to Posner's Frank I dissent.
Polling place photo ID wasn't just a phantom menace but "a cure worse than the disease." He cited evidence of record that supported the conclusion that polling place photo ID restrictions actually undermine public confidence in elections because they are seen by many legal scholars as a form of GOP voter suppression.
Importantly, both the facts and findings in One Wisconsin reveal that the ID Petition Process (IDPP) as administered by Wisconsin's Department of Motor Vehicles (DMV) --- the very process that Republicans cited in the prior cases to negate allegations that the photo ID law had a disparate retrogressive impact on racial minorities --- violates both the constitution and the VRA because it disparately imposes "severe burdens" on minorities that are not imposed on most white voters. This applies not only with respect to the disproportionate numbers of minorities forced to undergo that cumbersome process but in the fact that 85% of those who were denied supposedly "free" IDs by the state DMV were African-Americans and Latinos.
While Judge Peterson stopped short of a finding that Wisconsin's photo ID law was racially motivated, the One Wisconsin plaintiffs set forth factual arguments that would justify a racially motivated finding if the full 7th Circuit were to apply the standard recently utilized by a 4th Circuit panel in North Carolina NAACP v. McCrory. Specifically, in states like North Carolina and Wisconsin, where there is "racially polarized" voting, the "targeting of a particular race’s access to the franchise because its members vote for a particular party, in a predictable manner, constitutes discriminatory purpose," according to the unanimous three-judge 4th Circuit panel decision issued late last month.
Given the demographics and the opinion expressed by Posner in his Frank I dissent that photo ID restrictions are imposed "to discourage voting by persons likely to vote against the party responsible for imposing the burdens," this case appears to be tailor-made for a 7th Circuit en banc finding that Wisconsin's photo ID law was enacted for a "discriminatory purpose." That's significant because, according to the 4th Circuit, a "discriminatory purpose" finding eliminates the need to even reach the test set by the original Crawford case to determine whether voters are being forced to undergo an "undue burden" under the law.
Citing the finding made by the extremely conservative 5th Circuit that the polling place photo ID law in Texas violated Section 2 of the VRA, the One Wisconsin plaintiffs argue in their emergency petition that continued adherence to the flawed ruling in Frank I would make the 7th Circuit an "outlier" amongst our Circuit Courts of Appeal.
The 5th Circuit's Texas photo ID decision has led to a court approved stipulated agreement that permits voters who lack the requisite photo ID to cast a regular ballot this November on the basis of a "reasonable impediment declaration." That remedy contains virtually the same features as those set forth for Wisconsin voters in the District Court's previous injunction that the Easterbrook panel has now stayed.
The most expeditious course for the Posner-led majority on the 7th Circuit is to simply issue an emergency order lifting the stay of the District Court's remedial injunction in Frank. This would prevent further disenfranchisement of more than 300,000 Wisconsin voters in sufficient time to evade the Purcell problem, and it would permit the court to carefully address whether Wisconsin's photo ID statute should be struck down altogether.
Ernest A. Canning is a retired attorney, author, Vietnam Veteran (4th Infantry, Central Highlands 1968) and a Senior Advisor to Veterans For Bernie. He has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing