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Frank v. Walker

United States Court of Appeals, Seventh Circuit

April 12, 2016

RUTHELLE FRANK, et al., Plaintiffs-Appellants,
SCOTT WALKER, Governor of Wisconsin, et al., Defendants-Appellees

         Argued April 7, 2016.

          Appeal from the United States District Court for the Eastern District of Wisconsin. No. 11-C-01128 -- Lynn Adelman, Judge.

         For 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., Atlanta, GA.

         For 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, WI.

         Before EASTERBROOK, KANNE, and SYKES, Circuit Judges.


         Easterbrook, Circuit Judge.

         In 2011 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. 2014).

         After 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).

         The 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.

         Plaintiffs 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).

         The 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 difficulties.

         We 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.

         The 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 Crawford.

         Indeed, 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. ยง 6.97. Under Wisconsin's current law, people who do not have qualifying photo ...

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