Three weeks ago, a federal district judge issued a ruling making it easier for Wisconsin citizens to cast ballots even if they did not have one of the required photo IDs that the state requires of voters. On Wednesday, a three-judge panel of the Seventh Circuit Court of Appeals stayed that ruling. That means unless the case gets a speedy hearing and decision from all the circuit court’s judges or from the U.S. Supreme Court, Wisconsin voters without one of the required IDs will be out of luck come November. The ID law is one of the strictest in the nation.
U.S. District Judge Lynn Adelman had ruled last month in Frank v. Walker that citizens without acceptable ID could sign an affidavit explaining why they couldn’t get one. They would then have been given a provisional ballot to cast their vote. The ruling was an improvement but only a slight one since, as we have seen elsewhere, not all provisional ballots get counted for various reasons.
Now, thanks to the circuit court, even that option is out.
Rick Hasen at the Election Law Blog says:
The 7th Circuit issued the stay because it believes it is very likely to reverse the requirement for the affidavit alternative, because it is not targeted enough to the kinds of people who face special burdens on voting. “Because the district court has not attempted to distinguish genuine difficulties of the kind our opinion mentioned, 819 F.3d at 385–86, or any other variety of substantial obstacle to voting, from any given voter’s unwillingness to make the effort that the Supreme Court has held that a state can require, there is a substantial likelihood that the injunction will be reversed on appeal.”
In practical effect, given the timing close to the election, this means no affidavit requirement will apply in the upcoming Wisconsin November elections unless this order is further reversed by the full 7th Circuit (sitting en banc) or by the Supreme Court. Well how likely is that?
Hasen notes that the Seventh Circuit Court has previously been split 5-5 on the matter of voter IDs. But since October 2015, there have only been nine sitting judges on the court and the split now is more likely to be 5-4. But, Hasen says, that wouldn’t necessarily translate into a 5-4 ruling favoring the lower court’s decision.
When the district court’s ruling came down last month, Ari Berman, who has followed voter suppression for years and whose book on the subject was published last August, wrote at The Nation:
Nine percent of registered voters in Wisconsin, 9 percent of the electorate, lacked a government-issued ID when the law was passed. “Although most voters in Wisconsin either possess qualifying ID or can easily obtain one, a safety net is needed for those voters who cannot obtain qualifying ID with reasonable effort,” wrote Judge Lynn Adelman. “Because there are likely thousands of eligible voters in Wisconsin who lack qualifying ID, it is virtually self-evident that some of them will either need to exercise extraordinary effort to obtain qualifying ID or be unable to obtain ID no matter how hard they try.”
The stated motive behind the strict new voter ID laws is to prevent voter fraud. But this claim has been shattered not only by findings that the number of voters engaging in such fraud is less than minuscule, but also from the mouths of the instigators themselves. In Wisconsin, a former GOP staffer testified in another federal court case challenging the photo ID mandate that Republican state senators were “giddy” over the prospects that people who tend to vote Democratic would be disenfranchised by the law.