United States District Court, E.D. Wisconsin
RUTHELLE FRANK, et al., on behalf of themselves and all others similarly situated, Plaintiffs,
SCOTT WALKER, in his official capacity as Governor of the State of Wisconsin, et al., Defendants.
DECISION AND ORDER
ADELMAN District Judge
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”).
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.
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
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.
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. 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
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.
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.
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
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).
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).
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
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
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.
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”).
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.
address the four Rule 23(a) requirements.
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.
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?
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.
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.
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.
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).
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.
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).
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