United States District Court, W.D. Wisconsin
ONE WISCONSIN INSTITUTE, INC., CITIZEN ACTION OF WISCONSIN EDUCATION FUND, INC., RENEE M. GAGNER, ANITA JOHNSON, CODY R. NELSON, JENNIFER S. TASSE, SCOTT T. TRINDL, MICHAEL R. WILDER, JOHNNY M. RANDLE, DAVID WALKER, DAVID APONTE, and CASSANDRA M. SILAS, Plaintiffs,
MARK L. THOMSEN, ANN S. JACOBS, BEVERLY R. GILL, JULIE M. GLANCEY, STEVE KING, DON M. MILLS, MICHAEL HAAS, MARK GOTTLIEB, and KRISTINA BOARDMAN, all in their official capacities, Defendants.
D. PETERSON, DISTRICT JUDGE
prevailed on some, but not all, of their challenges to
changes in Wisconsin’s election laws. The court
enjoined enforcement of those laws that it found to be
unconstitutional. Both sides have appealed. Dkt. 236 and Dkt.
now move to stay the court’s injunction pending appeal.
Dkt. 241. Defendants contend that it is likely that the
court’s decision will be reversed on appeal and that
the injunction would require “a vast overhaul of state
election procedures, ” which would require enormous
effort and confuse voters. Dkt. 251, at 2. But
defendants’ description of the court’s injunction
is, to put it mildly, an exaggeration. The injunction
requires modest, but meaningful, adjustments to a few
election procedures and requirements. Yet it leaves in place
the framework that the legislature has chosen, particularly
the strict voter ID law, under which no one votes without an
acceptable photo Id. Defendants have not made a
strong showing that they are likely to succeed on the merits
of their appeal: the court is not persuaded that any aspect
of its decision was wrong. Accordingly, the court will deny
the motion to stay, in all but one respect.
court will stay the requirement that the state fundamentally
reform the IDPP before the next election. To be clear: the
state must reform the IDPP because the current process
prevents some qualified electors from getting acceptable IDs,
and even successful petitioners must often endure undue
burdens before getting those IDs. But the state’s
emergency measures already in place will allow anyone who
enters the IDPP to get a receipt that will serve as a valid
ID for the November 2016 election. This is not a permanent
solution because the long-term status of the receipts is
uncertain. But the required reform can wait until the parties
complete their appeal.
to Federal Rule of Civil Procedure 62(c), this court has the
authority to stay an injunction while an appeal of the order
granting that injunction is pending. “To determine
whether to grant a stay, [the court] consider[s] the moving
party’s likelihood of success on the merits, the
irreparable harm that will result to each side if the stay is
either granted or denied in error, and whether the public
interest favors one side or the other.” In re A
& F Enters., Inc. II, 742 F.3d 763, 766 (7th Cir.
2014). The court uses a “sliding scale” approach:
“the greater the moving party’s likelihood of
success on the merits, the less heavily the balance of harms
must weigh in its favor, and vice versa.” Id.
Defendants’ likelihood of success on the merits
have not shown a strong likelihood of success on the merits.
Defendants principally stand on their post-trial brief to
explain why their position on the merits of the case is
correct. See Dkt. 241, at 3 n.1. The court’s
opinion, Dkt. 234, thoroughly explains the court’s
reasons for rejecting defendants’ arguments. But
defendants’ motion to stay makes six specific
criticisms of the court’s opinion. These are not
entirely new points, but the court will address each one.
defendants contend that the one-location rule for in-person
absentee voting was in effect long before the rest of the
challenged provisions. According to defendants,
plaintiffs’ “core challenge is that the
Legislature should have changed a long-standing law”
and that the court ruled “that a non-change to
an existing law is unconstitutional.” Dkt. 241, at 4
(original emphasis). Not true. Plaintiffs did not challenge
the legislature’s failure to change the law.
Plaintiffs’ challenge, and the court’s
conclusion, was that the long-standing one-location rule is
unconstitutional under the Anderson-Burdick
framework, particularly when combined with limits on the
hours available for in-person absentee voting.
defendants contend that “[s]tatewide regulation of
in-person absentee timing is necessary for orderly and
effective elections, ” and that by eliminating the
state’s restrictions on the hours for in-person
absentee voting, the court has imposed burdens on municipal
clerks and allowed inconsistent hours across municipalities.
Id. This is not a new argument, and it is wrong in
two ways. First, Wisconsin law allows municipal clerks to set
their own hours for in-person absentee voting, so the
challenged law simply does not eliminate inconsistency in
voting hours. Before Wisconsin enacted the challenged
provisions, municipal clerks could set whatever hours they
wanted to set. Under the new laws, municipal clerks can still
set whatever hours they want to set, provided that those
hours are within a 10-day window before the election and
between 8:00 a.m. and 7:00 p.m. Some communities offer
in-person absentee voting for only a few hours, so the state
allows vast inconsistency. Second, the court’s
injunction imposes no burden on anyone: under the injunction,
municipal clerks can set the hours for in-person absentee
voting based on the needs of their communities; no clerks are
required to offer more than 10 days or weekend voting.
Defendants have not explained how they will reconcile the
inconsistency between their justifications for the challenged
provisions and what those provisions actually accomplish.
Moreover, they have not explained how they will overcome the
strong evidence of intentional race discrimination that led
the court to invalidate these restrictions under the
defendants contend that the court’s conclusions about
Wisconsin’s registration requirements (i.e., requiring
dorm lists to indicate a student’s citizenship and
imposing a 28-day durational residency requirement) were
contrary to binding precedent. For support, they direct the
court to Frank v. Walker, in which the Seventh
Circuit stated that “[r]egistering to vote is easy in
Wisconsin.” 768 F.3d 744, 748 (7th Cir. 2014),
cert. denied, 135 S.Ct. 1551 (2015). Frank
did not involve a challenge to Wisconsin’s registration
requirements, and this statement (which was to set up a point
about the number of registered voters who lacked a qualifying
ID being comparatively small) is hardly “binding
precedent” that spells certain reversal in this case.
The Seventh Circuit has not categorically held that
Wisconsin’s voting registration rules are impervious to
the durational residency requirement, defendants are correct
that the Supreme Court has upheld requirements that were
longer than Wisconsin’s 28-day rule. See,
e.g., Burns v. Fortson, 410 U.S. 686
(1973) (per curiam) (50-day requirement). But the challenge
in this case was to the legislature’s decision to
increase the existing 10-day requirement to 28
days.The court concluded that although
durational residency requirements are justifiable to prevent
certain types of election fraud, defendants had offered no
justification for the increase. Defendants did not explain at
trial, or in their post-trial brief, and they have not
explained in their motion for a stay, how a 10-day rule was
insufficient to prevent the types of election fraud that
durational residency requirements are designed to prevent.
Nor have defendants explained how a 28-day rule
better prevents those types of fraud. The increase
in the durational residency requirement imposes severe
burdens on those whom it affects, and defendants offered no
plausible justification for imposing those burdens.
defendants contend that the court discredited their evidence
of the security, accuracy, and efficiency considerations that
justified the challenged provision preventing municipal
clerks from sending absentee ballots by fax or email. That is
correct: the court concluded that these justifications were
not persuasive because defendants had not presented evidence
suggesting that there were genuine or widespread problems
with delivering ballots electronically. These justifications
were particularly suspect because the legislature
requires clerks to send ballots electronically to
certain categories of voters (those in the military or
permanently residing overseas).
defendants criticize the court’s holding that the ban
on using expired student IDs fails under rational basis
review. Dkt. 241, at 6. Defendants’ point, apparently,
is that rational basis review is so minimally demanding that
the court’s decision must be wrong. But defendants had
three (four, counting their motion to stay) opportunities to
present a rational justification for the state’s
decision to exclude expired student ID cards from the list of
acceptable IDs, and they failed to do so. Defendants argue
that “it is plainly rational to require a person using
a student ID to be a current student.” Id. The
court acknowledged this point in its order. Dkt. 234, at 114.
But Wisconsin law already ensures that only current
students vote because it requires a voter who uses a student
ID at the polls to also provide proof of enrollment.
Wis.Stat. § 5.02(6m)(f). Defendants have not ...