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One Wisconsin Institute, Inc. v. Thomsen

United States District Court, W.D. Wisconsin

August 11, 2016

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,
v.
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.

          ORDER

          JAMES D. PETERSON, DISTRICT JUDGE

         Plaintiffs 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. 240.

         Defendants 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.

         The 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.

         ANALYSIS

         Pursuant 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.

         A. Defendants’ likelihood of success on the merits

         Defendants 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.

         First, 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.

         Second, 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 Fifteenth Amendment.

         Third, 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 constitutional review.

         As for 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.[1]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.

         Fourth, 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).

         Fifth, 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. ยง 5.02(6m)(f). Defendants have not ...


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