The Corner

First Temporary Reversal of Recent Bad Decisions on Voter ID

The Seventh Circuit Court of Appeals has just issued a stay of the district court decision in Wisconsin, Frank v. Walker that would have forced the state to allow anyone to vote without meeting the state’s voter-ID requirement by simply signing an affidavit declaring he or she couldn’t get an ID.

This was no surprise, given that the district court judge, Lynn Adelman, had essentially thumbed his nose at the Seventh Circuit by not following its prior ruling in this case. And although this is a procedural ruling, not a ruling on the merits, the language of the stay order will give cold comfort to the opponents of the voter ID law in Wisconsin.

As the three-judge panel, led by Judge Frank Easterbrook, says in the stay order, the Seventh Circuit had “concluded that anyone who is eligible to vote in Wisconsin, but cannot obtain a qualifying photo ID with reasonable effort, is entitled to an accommodation what will permit him or her to cast a ballot.” But Judge Adelman, on remand of the case to his court by the Seventh Circuit, “instead of attempting to identify those voters, or to identify the kinds of situations in which the state’s procedures fall short,” instead “issued an injunction that permits any registered voter to declare by affidavit that reasonable effort would not produce a photo ID — even if the voter has never tried to secure one, and even if by objective standards the effort needed would be reasonable (and would succeed).”

Instead, the district court’s injunction ordered the state to allow any registered voter to vote without any ID by checking a box saying he couldn’t get one because of work, family responsibilities, or “other.” As the Seventh Circuit said, “the voter can put anything in the ‘other’ box, including a belief that spending a single minute to obtain a qualifying photo ID is not reasonable.” And yet the injunction forbids state officials from in any way disputing or questioning “any reason the registered voter gives.”

The U.S. Supreme Court upheld Indiana’s voter ID law in 2008 in Crawford v. Marion County Election Board after it concluded that “the inconvenience of making a trip to the [department of motor vehicles], gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.” With that precedent, according to the Seventh Circuit, a “given voter’s disagreement with this approach does not show that requiring one trip to a governmental office is unreasonable.”

Because the district court failed “to distinguish genuine difficulties” 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” (emphasis added).

That legal language is virtually the kiss of death for anyone seeking an injunction. Since Wisconsin’s voter-ID law has already been in place for elections this year, allowing the injunction would also cause a “disruption of the state’s electoral system” that “will cause irreparable injury” according to the Seventh Circuit.

It should be noted that the Frank case is in the Eastern District of Wisconsin. There is a second voter case in the Western District, One Wisconsin Institute v. Thomsen, in which another federal judge who apparently doesn’t like to follow Supreme Court precedent either issued a decision striking down the state’s voter ID law (as well as some other changes to election rules) as unconstitutional on July 29. Brad Schimel, Wisconsin’s attorney general, has also asked the Seventh Circuit for an emergency stay of that decision. Stay tuned.

Hans A. von Spakovsky — Heritage Foundation – As a Senior Legal Fellow and Manager of the Election Law Reform Initiative in the Center for Legal and Judicial Studies, Hans von Spakovsky concentrates on voting, ...

Most Popular

Law & the Courts

Obstruction Confusions

In his Lawfare critique of one of my several columns about the purported obstruction case against President Trump, Gabriel Schoenfeld loses me — as I suspect he will lose others — when he says of himself, “I do not think I am Trump-deranged.” Gabe graciously expresses fondness for me, and the feeling is ... Read More
Politics & Policy

Students’ Anti-Gun Views

Are children innocents or are they leaders? Are teenagers fully autonomous decision-makers, or are they lumps of mental clay, still being molded by unfolding brain development? The Left seems to have a particularly hard time deciding these days. Take, for example, the high-school students from Parkland, ... Read More
PC Culture

Kill Chic

We live in a society in which gratuitous violence is the trademark of video games, movies, and popular music. Kill this, shoot that in repugnant detail becomes a race to the visual and spoken bottom. We have gone from Sam Peckinpah’s realistic portrayal of violent death to a gory ritual of metal ripping ... Read More

Romney Is a Misfit for America

Mitt’s back. The former governor of Massachusetts and occasional native son of Michigan has a new persona: Mr. Utah. He’s going to bring Utah conservatism to the whole Republican party and to the country at large. Wholesome, efficient, industrious, faithful. “Utah has a lot to teach the politicians in ... Read More
Law & the Courts

What the Second Amendment Means Today

The horrifying school massacre in Parkland, Fla., has prompted another national debate about guns. Unfortunately, it seems that these conversations are never terribly constructive — they are too often dominated by screeching extremists on both sides of the aisle and armchair pundits who offer sweeping opinions ... Read More

Fire the FBI Chief

American government is supposed to look and sound like George Washington. What it actually looks and sounds like is Henry Hill from Goodfellas: bad suit, hand out, intoning the eternal mantra: “F*** you, pay me.” American government mostly works by interposition, standing between us, the free people at ... Read More