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Frank v. Walker

United States District Court, E.D. Wisconsin

July 19, 2016

RUTHELLE FRANK, et al., on behalf of themselves and all others similarly situated, Plaintiffs,
v.
SCOTT WALKER, in his official capacity as Governor of the State of Wisconsin, et al., Defendants.

          DECISION AND ORDER

          LYNN ADELMAN District Judge

         The plaintiffs, a number of individuals who are eligible to vote in Wisconsin, filed this suit in 2011, alleging that Wisconsin’s law requiring them to present photo identification at the polls, 2011 Wis. Act 23 (“Act 23"), violates the Constitution and Section 2 of the Voting Rights Act. Following a trial on the claims alleged in this and a companion case, I concluded that Act 23 placed an undue burden on the plaintiffs’ voting rights and therefore violated the Fourteenth Amendment. I also concluded that Act 23 violated Section 2 of the Voting Rights Act. Having found these violations, I entered an injunction prohibiting the defendants from enforcing the photo ID requirement. Frank v. Walker, 17 F.Supp.3d 837 (E.D. Wis. 2014). The defendants appealed, and the Seventh Circuit reversed. Frank v. Walker, 768 F.3d 744 (7th Cir. 2014) (“Frank I”).

         On remand, the plaintiffs sought relief in connection with certain claims that I did not resolve in my first decision. I issued a decision denying relief on those claims on October 19, 2015. The plaintiffs appealed, challenging two aspects of my decision. First, the plaintiffs challenged my conclusion that Frank I precluded me from considering the plaintiffs’ claim for relief on behalf of persons who cannot obtain Act 23-qualifying ID with reasonable effort. Second, the plaintiffs challenged my conclusion that Act 23’s exclusion of veterans’ ID cards from the list of IDs that may be used for voting did not violate the Equal Protection Clause.

         While the plaintiffs’ appeal was pending, Wisconsin amended Act 23 to require election officials to accept veterans’ IDs. See 2015 Wis. Act 261, § 2. Because the parties agreed that this rendered the plaintiffs’ claim regarding the refusal to accept such IDs moot, the Seventh Circuit vacated my decision on that claim and remanded with instructions to dismiss it as moot. See Frank v. Walker, 819 F.3d 384, 385 (7th Cir. 2016) (“Frank II”). In accordance with that instruction, I will in this order dismiss that claim as moot.

         As to the plaintiffs’ other argument, the Seventh Circuit held that its decision in the first appeal did not preclude me from considering the plaintiffs’ claim for relief on behalf of those who cannot obtain ID with reasonable effort. It therefore vacated my dismissal of that claim and remanded the case for further proceedings. Id. at 385-88.

         Now that the case has been remanded a second time, the plaintiffs have filed a motion to supplement their complaint, see Fed. R. Civ. P. 15(d), a motion to certify a class, see Fed. R. Civ. P. 23, and a motion for a preliminary injunction, see Fed. R. Civ. P. 65(a). The motion for a preliminary injunction seeks an order requiring the defendants to offer voters who do not possess an ID and who cannot obtain one with reasonable effort the option of receiving a ballot by executing an affidavit to that effect.[1] The plaintiffs also seek an order requiring the defendants to publicize this affidavit option by sending individualized notice to all registered voters who, according to DMV records, might not possess qualifying ID.

         I will grant the plaintiffs’ motion for a preliminary injunction and will order the defendants to implement an affidavit option in time for the general election on November 8, 2016. As explained in more detail below, 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. The plaintiffs’ proposed affidavit option is a sensible approach that will both prevent the disenfranchisement of some voters during the pendency of this litigation and preserve Wisconsin’s interests in protecting the integrity of its elections. I will also grant the plaintiffs’ motion to file a supplemental complaint and their motion for class certification. However, I will not require the defendants to mail individualized notice of the affidavit option to certain voters.

         I.

         I begin with the plaintiffs’ motion to file a supplemental complaint. The sole purpose of this pleading is to add three named plaintiffs and potential class representatives to the case: Melvin Robertson, Leroy Switlick, and James Green. The proposed supplemental complaint alleges that these individuals do not possess Act 23-qualifying ID, that they face significant barriers to obtaining ID, and that the requirement to present ID at the polls prevented them from voting in Wisconsin elections during 2016. See Decl. of Sean J. Young Ex. 1, ECF No. 280-1.

         The defendants contend that I should not allow these individuals to be added as plaintiffs because their claims will be addressed as part of a separate lawsuit that is pending in the Western District of Wisconsin, One Wisconsin Institute, Inc., et al. v. Judge Gerald C. Nichol, et al., W.D. Wis. Case No. 15-C-0324. The defendants contend that adding the new plaintiffs to this case would be duplicative and inefficient. However, Robertson, Switlick and Green are not parties to the One Wisconsin case. It is true that they may benefit from any relief granted in One Wisconsin, but that is also true of the individuals who are already named as plaintiffs in this case. If I were to deny Robertson, Switlick and Green leave to join this case, they would still have a right to file their own, separate suit, and thus not allowing them to become parties in this case would only increase the risk of duplicative litigation. It is better to have their claims and the claims of the existing plaintiffs, all of which are virtually identical, litigated as part of a single action. For that reason, I will grant the plaintiffs’ motion to file a supplemental complaint.

         II.

         I next address the defendants’ argument that no plaintiff has standing to seek an affidavit option on behalf of persons who lack ID and cannot obtain ID with reasonable effort. To have standing, a plaintiff must show that he has suffered an injury in fact that is fairly traceable to the defendants’ conduct and that is likely to be redressed by a favorable judicial decision. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560- 61 (1992).

         The plaintiffs have put forth the following individuals as plaintiffs with standing to pursue an affidavit option: Ruthelle Frank, Shirley Brown, DeWayne Smith, Melvin Robertson, Leroy Switlick, and James Green. Pls.’ Br. at 24, ECF No. 279. So long as one of these individuals has standing, the claim may proceed rather than be dismissed for lack of standing. See Crawford v. Marion County Election Bd., 553 U.S. 181, 189 n.7 (2008).

         The defendants point out that two of these plaintiffs, Brown and Smith, have obtained ID, and contend that therefore their claims are moot. A claim becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party. Knox v. Serv. Employees Int’l Union, Local 1000, __ U.S. __, 132 S.Ct. 2277, 2287 (2012). Here, because Brown and Smith have obtained ID, they would not benefit from the relief that the plaintiffs currently seek, i.e., an order requiring the defendants to allow those who lack ID to obtain a ballot by signing an affidavit stating that they have been unable to obtain ID with reasonable effort. Thus, such an order would not be effectual relief for them. However, these plaintiffs still have a sufficient stake in this case to remain plaintiffs. That is because the plaintiffs intend to argue on appeal that Frank I was wrongly decided and that Act 23 should be enjoined in its entirety. See Pls.’ Br. at 6 n.4, ECF No. 279. As I noted in my original decision, those who possess IDs have standing to seek an injunction that prevents them from having to show their IDs at the polls to receive a ballot. Frank, 17 F.Supp.3d at 866. But, for purposes of this order, I will assume that Brown and Smith do not have standing to seek an affidavit option and examine whether any of the other plaintiffs do.

         The defendants contend that the claim of Ruthelle Frank, who does not possess an ID, is moot because she was able to vote by absentee mail in this year’s elections without having to show ID under Act 23’s “indefinitely confined” exception. That exception provides that a person “who is indefinitely confined because of age, physical illness or infirmity or is disabled for an indefinite period may by signing a statement to that effect” vote by absentee ballot without presenting Id. Wis.Stat. §§ 6.86(2)(a), 6.87(4)(b)2. However, Frank prefers to vote in person and has voted absentee only because she lacks ID and therefore cannot vote in person. See Frank Dep. at 12-13, ECF No. 280-4. Thus, Frank continues to suffer an injury in fact, i.e., the inability to vote in person, that is caused by the photo-ID requirement, and that would be redressed by the creation of an affidavit option. She therefore continues to have standing to seek the requested injunctive relief.

         The remaining plaintiffs, Robertson, Switlick and Green, also have standing to seek an order creating an affidavit option. These plaintiffs do not currently possess IDs, have been unable to vote in recent elections, and allege that they cannot with reasonable effort obtain IDs. The defendants contend that these plaintiffs do not have standing because they have not shown that they tried to obtain IDs under the Wisconsin DMV’s most recent procedures. However, while the plaintiffs’ failure to apply for IDs under the current procedures may be relevant to the merits of their claims, it does not deprive them of standing to seek an affidavit option, which if granted would prevent them from having to apply for IDs at all. Moreover, Leroy Switlick did attempt to obtain an ID as recently as April 2016 but was unsuccessful. Decl. of Leroy Switlick ¶¶ 8-10, ECF No. 280-6. This would have been after the DMV instituted most of its new procedures but before a recent emergency rule (discussed below) went into effect in May 2016. Having to reapply for an ID every time the DMV changes its procedures would itself require more than reasonable effort, and thus Switlick undoubtedly has standing to seek an affidavit remedy. This reasoning also applies to Melvin Robertson, who attempted to obtain an ID before 2014. Decl. of Melvin Robertson ¶ 7, ECF No. 280-5. Accordingly, I conclude that Robertson, Switlick and Green have standing to seek an order creating an affidavit option.

         III.

         Next, I address the plaintiffs’ motion for class certification. The plaintiffs propose to certify a class defined as eligible Wisconsin voters without acceptable forms of identification for voting and who have one or more of the following barriers to obtaining ID: (1) name mismatches or other errors in a document needed to obtain ID; (2) a need to obtain an underlying document from an agency other than the DMV in order to obtain ID; and/or (3) one or more underlying documents necessary to obtain ID cannot be found. See Pls. Prop. Order at 1-2, ECF No. 278-1. However, the affidavit remedy the plaintiffs seek on behalf of this class would apply to a broader class of persons, namely, to all those who face a “reasonable impediment” to obtaining acceptable Id. The order they seek would direct the defendants to:

Create an affidavit in simple language that would allow voters without acceptable identification for voting to cast a regular ballot at the polling place or an absentee ballot, by affirming that they face a “reasonable impediment” to obtaining acceptable identification. The form should have boxes that a voter may check for “lack of transportation, ” “disability or illness, ” “lack of birth certificate, ” “work schedule, ” “family responsibilities, ” and “other reasonable impediment.”

See Id. at 2. To bring the class definition in line with the proposed remedy, I will define the proposed class as all those eligible to vote in Wisconsin who cannot with reasonable effort obtain a qualifying photo Id. Most of the members of this class will also fit into one of the plaintiffs’ three categories, since individuals in those categories are the ones most likely to encounter reasonable impediments. See Frank II, 819 F.3d at 386 (describing the members of the plaintiffs’ three categories as those who cannot “obtain a qualifying photo ID with reasonable effort”).

         Having defined the proposed class, I turn to whether it may be certified under Federal Rule of Civil Procedure 23. A district court may certify a class of plaintiffs if the proposed class satisfies all four requirements of Rule 23(a)-numerosity, commonality, typicality, and adequacy of representation-and any one of the conditions of Rule 23(b). Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). For the reasons explained below, I conclude that these elements are satisfied.

         A.

         I first address the four Rule 23(a) requirements.

         Numerosity. Under Rule 23(a)(1), a class may be certified only if “the class is so numerous that joinder of all members is impracticable.” I find that the proposed class satisfies this requirement. Although it is true that the vast majority of Wisconsin voters already possess qualifying ID, and although it may be true that many voters who do not already possess qualifying ID can obtain one with ease, there can be no doubt that some voters in Wisconsin still face high hurdels to obtaining Id. As explained in more detail below, the DMV has already denied IDs to more than 50 applicants who sought IDs under the DMV’s current rules, and it is likely that many others will be unable to obtain ID with reasonable effort. Moreover, it is clearly impracticable to join all such individuals as plaintiffs. There is no way to identify every person in the state who currently faces high hurdles to obtaining Id. Indeed, many individuals likely will not even realize that they fall within the class definition until they attempt to obtain ID and discover the hurdles that affect them. For example, a person might believe that it will be easy to obtain an ID only to discover, upon getting to the DMV, that his or her documentation is not acceptable. This person will benefit from the relief sought by the class but could not have been joined as a named plaintiff. A related point is that new class members will be created while the case is pending, as people turn eighteen, move to Wisconsin, or otherwise become eligible to vote here and discover that they cannot obtain ID with reasonable effort. It is not possible to identify all of these individuals in advance and join them as named plaintiffs. Accordingly, Rule 23(a)(1) is satisfied.

         Commonality.

         Rule 23(a)(2) provides that a class may be certified only if “there are questions of law or fact common to the class.” This requires the plaintiff to demonstrate that the class members “have suffered the same injury.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349-50 (2011) (quoting Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157 (1982)). This, in turn, requires the plaintiff to show that the class’s claims “depend upon a common contention” that is central to the validity of every class member’s claim and which can be resolved on a classwide basis, i.e., in one stroke. Id. at 350. Here, I conclude that plaintiffs have satisfied this standard. One common question is this: Does Act 23, as applied to those who cannot with reasonable effort obtain qualifying ID, violate the Constitution as it was understood in decisions such as Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992)? If the answer to this common question is yes, then another common question arises: Is the proper remedy for this violation of the class members’ rights an injunction requiring the creation of an affidavit option in the form that the plaintiffs have sought?

         Typicality.

         Rule 23(a)(3), in pertinent part, requires that “the claims . . . of the representative parties [be] typical of the claims . . . of the class.” The Seventh Circuit has interpreted this requirement to mean that the named representatives’ claims must “have the same essential characteristics as the claims of the class at large.” De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983); accord Munro v. Target Corp., 580 F.3d 485, 492 (7th Cir. 2009). The court has stated that “[a] plaintiff’s claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and his or her claims are based on the same legal theory.” De La Fuente, 713 F.2d at 232 (quoting H. Newberg, Class Actions § 1115(b) at 185 (1977)); accord Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. 2006). The court has also stated that “[t]he typicality requirement may be satisfied even if there are factual distinctions between the claims of the named plaintiffs and those of other class members.” De La Fuente, 713 F.2d at 232; accord Oshana, 472 F.3d at 514.

         In the present case, I conclude that the claims of class representatives Frank, Robertson, Switlick and Green are typical of the claims of the class. The named plaintiffs’ claims share the same essential characteristics as the claims of the class at large. Those characteristics are (1) the lack of a qualifying ID, and (2) the existence of a high hurdle to obtaining such Id. The class representatives’ claims are also based on the same legal theory as the class’s claims, i.e., violation of the Constitution as understood in Anderson and Burdick.

         Adequacy of representation.

         Rule 23(a)(4) requires the representative parties to demonstrate that they will “fairly and adequately protect the interests of the class.” This requirement focuses on matters such as whether the class representatives have retained appropriate counsel and whether the representatives have interests that conflict with the interests of the class. See, e.g., Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 598 (7th Cir. 1993). In the present case, the defendants do not dispute that Frank, Robertson, Switlick and Green are adequate class representatives, and it appears to me that they and their counsel will fairly and adequately protect the interests of the class. Therefore, I conclude that Rule 23(a)(4) is satisfied.

         B.

         I next examine whether one of the conditions in Rule 23(b) is satisfied. Here, the plaintiffs seek certification under either Rule 23(b)(1) or Rule 23(b)(2). I conclude that certification is proper under Rule 23(b)(2) and for that reason will not discuss Rule 23(b)(1).

         Rule 23(b)(2) permits class certification if “the party opposing the class has acted or refuses to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2); Chicago Teachers Union, Local No. 1 v. Bd. of Educ., 797 F.3d 426, 441 (7th Cir. 2015). “Colloquially, 23(b)(2) is the appropriate rule to enlist when the plaintiffs’ primary goal is not monetary relief, but rather to require the defendant to do or not do something that would benefit the whole class.” Chicago Teachers Union, 797 F.3d at 441. Rule 23(b)(2) is generally considered to be the appropriate procedural vehicle for certifying civil-rights claims seeking injunctive relief. Id.

         Here, the defendants have acted or failed to act on grounds that apply generally to the class, in that Act 23 applies to all of those who cannot with reasonable effort obtain qualifying Id. Moreover, the general requirements for obtaining qualifying ID are the same for all class members. Although the class members do not all face the same high hurdles to obtaining ID, the plaintiffs have not asked the court to fashion different remedies for each hurdle. Rather, the plaintiffs seek an injunction requiring the defendants to allow all class members to vote by presenting an affidavit in lieu of photo Id. This would be an adequate remedy for the entire class, and thus final injunctive relief would operate in favor of the class as a whole. Certification is therefore appropriate under Rule 23(b)(2).

         C.

         The defendants also contend that class certification should be denied because the proposed class is vague or indefinite, i.e., that it is not “ascertainable.” See Alliance to End Repression v. Rochford, 565 F.2d 975, 977-78 (7th Cir. 1977). I disagree. The class is defined as all eligible Wisconsin voters who cannot with reasonable effort obtain qualifying Id. Although one may contend that the term “reasonable effort” is indefinite, as applied to the facts of this case it is definite enough. The essential point is that the class includes anyone who does not currently possess qualifying ID and who, to obtain one, would have to do more than retrieve a birth certificate and related documents from his or her desk drawer and make a single trip to the DMV. The class would also ...


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