April 7, 2016.
from the United States District Court for the Eastern
District of Wisconsin. No. 11-C-01128 -- Lynn Adelman, Judge.
Ruthelle Frank, Carl Ellis, Dartric Davis, Barbara Oden,
Plaintiffs - Appellants: Craig G. Falls, Attorney, Dechert
Llp, Washington, DC; Dale Ho, Attorney, Sean Young, Attorney,
American Civil Liberties Union, New York, NY; Angela M. Liu,
Attorney, Dechert Llp, Chicago, IL; Karyn Rotker, Attorney,
Laurence Jacques Dupuis, Attorney, American Civil Liberty
Union of Wisconsin, Milwaukee, WI; Neil A. Steiner, Attorney,
Dechert Llp, New York, NY; Sophia Lin Lakin, Attorney,
American Civil Liberties Union Foundation, Inc., Voting
Rights Project, New York, NY; Moffatt Laughlin McDonald,
Attorney, American Civil Liberties Union Foundation, Inc.,
SCOTT WALKER, in his official capacity as Govenor of the
State of Wisconsin, THOMAS BARLAND, Judge, in his official
capacity as member of the Wisconsin Government Accountability
Board, GERALD NICHOL, Judge, in his official capacity as a
member and Chair of the Wisconsin Government Accountability
Board, TIMOTHY VOCKE, Judge, in his official capacity as a
member of the Wisconsin Government Accountability Board,
KEVIN J. KENNEDY, in his official capacity as Director &
General Counsel of Wisconsin Government Accountability Board,
Defendants - Appellees: Daniel P. Lennington, Attorney,
Office of The Attorney General, Wisconsin Department of
Justice, Madison, WI; Misha Tseytlin, Attorney, Office of The
Solicitor General, Wisconsin Department of Justice, Madison,
EASTERBROOK, KANNE, and SYKES, Circuit Judges.
Wisconsin enacted a statute requiring voters to present
photographic identification. 2011 Wis. Act 23. A federal
district judge found that the statute violates the
Constitution as well as the Voting Rights Act and enjoined
its application across the board. 17 F.Supp.3d 837 (E.D. Wis.
2014). We reversed that decision. 768 F.3d 744 (7th Cir.
the Supreme Court declined to accept the case, 135 S.Ct.
1551, 191 L.Ed.2d 638 (2015), one of the two sets of
plaintiffs asked the district court to take up some issues
that it had not previously resolved. The judge then rejected
on the merits plaintiffs' contention that Wisconsin
violated the Equal Protection Clause by declining to accept
veterans' identification cards. See (E.D. Wis. Oct. 19,
2015) at *23-34. The state legislature soon amended Act 23 to
require election officials to accept veterans' IDs. 2015
Wis. Act 261 § 2. The parties agree that this makes that
slice of the litigation moot, and we vacate the district
court's decision on that subject and remand with
instructions to dismiss this aspect of the complaint as moot.
See United States v. Munsingwear, Inc., 340 U.S. 36,
71 S.Ct. 104, 95 L.Ed. 36 (1950).
district court dispatched two other challenges as well, see
Id. at *9-23, and plaintiffs have not contested
those portions of the decision on appeal. But the district
court declined to address plaintiffs' principal
argument--that some persons qualified to vote are entitled to
relief because they face daunting obstacles to obtaining
acceptable photo ID. The court ruled that all arguments
relating to the difficulty of obtaining photo ID were before
this court in 2014 and that our mandate leaves no room for
further debate. Id. at *5-9. Plaintiffs appeal this
part of the district court's decision, contending that
the judge misunderstood the scope of our mandate.
want relief for three classes of persons: (1) eligible voters
unable to obtain acceptable photo ID with reasonable 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). We refer to these three categories
collectively as inability to obtain a qualifying photo ID
with reasonable effort, though the gastonette in category (2)
and the loss of documents in category (3) may amount to
impossibility rather than just difficulty. Plaintiffs
maintain that preventing persons in these categories from
voting for the rest of their lives would violate the
Constitution, as understood in decisions such as Anderson
v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d
547 (1983), and Burdick v. Takushi, 504 U.S. 428,
112 S.Ct. 2059, 119 L.Ed.2d 245 (1992).
scope of an appellate mandate depends on what the court
decided--and we did not decide that persons unable to get a
photo ID with reasonable effort lack a serious grievance. The
district court had held in 2014 that, because some
voters face undue difficulties in obtaining acceptable photo
IDs, Wisconsin could not require any voter to
present a photo ID. And the district judge had included in
the set of people encountering undue difficulty many who
could get a state-issued photo ID but disliked the hassle.
For example, the judge thought that persons who lack birth
certificates but could get them on request, and those who
have birth certificates but have not used them to get a
state-issued photo ID, were among those facing undue
reversed that injunction as incompatible with Crawford v.
Marion County Election Board, 553 U.S. 181, 128 S.Ct.
1610, 170 L.Ed.2d 574 (2008), in which the Supreme Court held
that Indiana's voter-ID statute is valid notwithstanding
the same sort of critiques the district court leveled against
Wisconsin's. In Crawford the lead opinion
concluded: " For most voters who need them, 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." 553 U.S. at 198. The
Court added that an across-the-board injunction would be
improper because " [t]he application of the statute to
the vast majority of Indiana voters is amply justified"
( id. at 204). That is equally true in Wisconsin, we
held. It followed that the burden some voters faced could not
prevent the state from applying the law generally.
argument plaintiffs now present is different. Instead of
saying that inconvenience for some voters means that no one
needs photo ID, plaintiffs contend that high hurdles for some
persons eligible to vote entitle those particular persons to
relief. Plaintiffs' approach is potentially sound if even
a single person eligible to vote is unable to get acceptable
photo ID with reasonable effort. The right to vote is
personal and is not defeated by the fact that 99% of other
people can secure the necessary credentials easily.
Plaintiffs now accept the propriety of requiring photo ID
from persons who already have or can get it with reasonable
effort, while endeavoring to protect the voting rights of
those who encounter high hurdles. This is compatible with our
opinion and mandate, just as it is compatible with
one may understand plaintiffs as seeking for Wisconsin the
sort of safety net that Indiana has had from the outset. A
person seeking to vote in Indiana who contends that despite
effort he has been unable to obtain a complying photo ID for
financial or religious reasons may file an affidavit to that
effect and have his vote provisionally counted. See 553 U.S.
at 186 & n.2, 199. No one contended in this court in 2014
that such an accommodation was essential to the validity of
Indiana's law, and neither our opinion nor the Supreme
Court's decision in Crawford forecloses such an
argument. Wisconsin's rules for casting provisional
ballots, unlike those of Indiana, require a voter who does
not present an acceptable photo ID at the polling place to
present such an ID by the end of the week. Wis. Stat. §
6.97. Under Wisconsin's current law, people who do not
have qualifying photo ...