768 F.3d 744 (7th Cir. 2014), 14-2058, Frank v. Walker

Docket Nº:14-2058, 14-2059
Citation:768 F.3d 744
Opinion Judge:Easterbrook, Circuit Judge
Party Name:RUTHELLE FRANK, et al., Plaintiffs-Appellees, v. SCOTT WALKER, Governor of Wisconsin, et al., Defendants-Appellants. LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC) OF WISCONSIN, et al., Plaintiffs-Appellees, v. DAVID G. DEININGER, Member, Government Accountability Board, et al., Defendants-Appellants
Attorney:For Ruthelle Frank, Carl Ellis, Justin Luft, Dartric Davis, Barbara Oden, Plaintiffs - Appellees (14-2058): Craig G. Falls, Attorney, Dechert Llp, Washington, DC; Karyn Rotker, Attorney, American Civil Liberty Union of Wisconsin, Milwaukee, WI; Dale Ho, Attorney, Sean Young, Attorney, American Ci...
Judge Panel:Before EASTERBROOK, SYKES, and TINDER, Circuit Judges. Posner, Circuit Judge, joined by Chief Judge Wood and Circuit Judges Rovner, Williams, and Hamilton, dissenting from denial of rehearing en banc.
Case Date:October 06, 2014
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 744

768 F.3d 744 (7th Cir. 2014)

RUTHELLE FRANK, et al., Plaintiffs-Appellees,

v.

SCOTT WALKER, Governor of Wisconsin, et al., Defendants-Appellants.

LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC) OF WISCONSIN, et al., Plaintiffs-Appellees,

v.

DAVID G. DEININGER, Member, Government Accountability Board, et al., Defendants-Appellants

Nos. 14-2058, 14-2059

United States Court of Appeals, Seventh Circuit

October 6, 2014

Argued September 12, 2014

Appeals from the United States District Court for the Eastern District of Wisconsin. Nos. 11-CV-01128 & 12-CV-00185, Lynn Adelman, Judge.

For Ruthelle Frank, Carl Ellis, Justin Luft, Dartric Davis, Barbara Oden, Plaintiffs - Appellees (14-2058): Craig G. Falls, Attorney, Dechert Llp, Washington, DC; Karyn Rotker, Attorney, American Civil Liberty Union of Wisconsin, Milwaukee, WI; Dale Ho, Attorney, Sean Young, Attorney, American Civil Liberties Union, New York, NY; Angela M. Liu, Attorney, Dechert Llp, Chicago, IL; Jeremy Rosen, Attorney, National Law Center on Homelessness & Poverty, Washington, DC; Neil A. Steiner, Attorney, Dechert Llp, New York, NY.

For SCOTT WALKER, in his official capacity as Governor of State of Wisconsin, THOMAS BARLAND, in his official capacity as member of the Wisconsin Government Accountability Board, GERALD NICHOL, in his official capacity as a member of the Wisconsin Government Accountability Board, MICHAEL BRENNAN, in his official capacity as a member of the Wisconsin Government Accountability Board, DAVID G. DEININGER, in his official capacity as a member of the Wisconsin Government Accountability Board, Defendants - Appellants (14-2058): Clayton P. Kawski, Attorney, Brian Patrick Keenan, Attorney, Maria S. Lazar, Attorney, Office of The Attorney General, Wisconsin Department of Justice, Madison, WI.

For United States of America (14-2058, 14-2059), Amicus Curiae: Erin H. Flynn, Attorney, Department of Justice, Civil Rights Division, Appellate Section, Washington, DC.

For League of United Latin American Citizens of Wisconsin, Cross Lutheran Church, Milwaukee Area Labor Council, Afl-Cio, Wisconsin League of Young Voters Education Fund, Plaintiffs - Appellees (14-2059): Carl Seepe Nadler, Attorney, Arnold & Porter, Washington, DC; John Charles Ulin, Attorney, Arnold & Porter, Los Angeles, CA; Leigh M. Chapman, Esq., Attorney, Katherine Culliton-Gonzalez, Attorney, James Eichner, Attorney, Penda Hair, Attorney, Advancement Project, Washington, DC.

For DAVID G. DEININGER, in his official capacity as a member of the Wisconsin Government Accountability Board, MICHAEL BRENNAN, in his official capacity as a member of the Wisconsin Government Accountability Board, GERALD NICHOL, in his official capacity as a member of the Wisconsin Government Accountability Board, THOMAS BARLAND, in his official capacity as a member of the Wisconsin Government Accountability Board, THOMAS CANE, in his official capacity as a member of the Wisconsin Government Accountability Board, Defendants - Appellants (14-2059): Clayton P. Kawski, Attorney, Brian Patrick Keenan, Attorney, Maria S. Lazar, Attorney, Office of The Attorney General, Wisconsin Department of Justice, Madison, WI.

Before EASTERBROOK, SYKES, and TINDER, Circuit Judges.

OPINION

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Easterbrook, Circuit Judge

Since 2005 Indiana has required voters to present photographic identification at the polls. The Supreme Court held that this statute is compatible with the Constitution. Crawford v. Marion County Election Board, 553 U.S. 181, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008). In May 2011 Wisconsin enacted a similar statute, 2011 Wis. Act 23. A district court held that Act 23 is unconstitutional and enjoined its implementation. Frank v. Walker, (E.D. Wis. Apr. 29, 2014), stay denied, (E.D. Wis. Aug. 13, 2014). After receiving briefs and argument, we stayed that injunction. Order issued Sept. 12, 2014; reconsideration denied Sept. 26, 2014; opinions issued Sept. 30, 2014. We now reverse the injunction, because the district court's findings do not justify an outcome different from Crawford.

The Justices observed that a commission chaired by former President Carter had recommended the use of photo ID to verify a person's entitlement to vote. Commission on Federal Election Reform, Building Confidence in U.S. Elections 18 (2002). The Court added that the Help America Vote Act of 2002 (HAVA) requires states to verify a person's eligibility to vote, using photo ID, portions of Social Security numbers, or unique state-assigned identifiers. 52 U.S.C. § 21083(a)(5)(A), formerly 42 U.S.C. § 15483(a)(5)(A). Many people register to vote when they get drivers' licenses (National Voter Registration Act of 1993, 52 U.S.C. § 20504, formerly 42 U.S.C. § 1973gg-3), which links registration and photo ID from the outset. The Justices concluded that both the prevention of voter impersonation on election day and the preservation of public confidence in the integrity of elections justify a photo ID requirement, even though persons who do not already have government-issued photo IDs must spend time to acquire necessary documents (such as birth certificates) and stand in line at a public agency to get one. " 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.

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These observations hold for Wisconsin as well as for Indiana.

Wisconsin's law differs from Indiana's, but not in ways that matter under the analysis in Crawford. One difference is that Wisconsin requires photo ID for absentee voting as well as in-person voting; a person casting an absentee ballot must submit a photocopy of an acceptable ID. Another difference is that when a person who appears to vote in person lacks a photo ID but says that he has one, and therefore casts a provisional ballot, the state will count that ballot if the voter produces the photo ID by the next Friday; in Indiana the voter signs an affidavit of eligibility in one of the state's circuit courts (which usually means travel to the county seat) within 10 days. Offices of the Department of Motor Vehicles in Wisconsin (where most people get government-issued photo IDs) are open shorter hours than those in Indiana, but more than three years have passed since Act 23's adoption, which makes it difficult to conclude that people who want photo ID have been unable to find an open office in all that time; no one thinks that people who want drivers' licenses in Wisconsin are unable to get them because of limited office hours. Wisconsin's list of acceptable documents (drivers' licenses, Wisconsin state ID cards, passports, military ID of persons in active service, recent naturalization papers, photo ID issued by a recognized Indian tribe, or signed photo ID issued by a college or university) omits some documents that Indiana accepts (see 553 U.S. at 198 n.16) and includes some that Indiana omits. There are other differences in detail, but none establishes that the burden of voting in Wisconsin is significantly different from the burden in Indiana.

The district court concluded that Crawford is not controlling for three principal reasons. First, the judge estimated that 300,000 registered voters in Wisconsin lack a photo ID that the state will accept for voting. That is approximately 9% of the state's 3,395,688 registered voters. The district judge in Crawford, by contrast, estimated that only 43,000 persons eligible to vote lacked an acceptable photo ID. 458 F.Supp.2d 775, 807 (S.D. Ind. 2006). Second, the judge found that voter-impersonation fraud (a ringer pretending to be a registered voter) happens so rarely in Wisconsin that the desire to reduce its occurrence cannot justify any significant burden on voters. Third, the judge found that white persons who are eligible to vote are more likely than others to have in their possession either an acceptable photo ID or the documents (such as copies of birth certificates) that make it simple to get an acceptable photo ID. The judge found that in Milwaukee County (which the judge took as a proxy for the whole state) 97.6% of white eligible voters have a qualifying photo ID or the documents they need to get one. That figure is 95.5% for black eligible voters and 94.1% for Latino eligible voters. The judge concluded from the first two findings that Act 23 violates the Constitution and from the third that it violates the Voting Rights Act. The judge made many other findings, but these are the most important ones.

Before we address the significance of the findings the judge made, we mention a few things that the judge did not find. First, the judge did not find that substantial numbers of persons eligible to vote have tried to get a photo ID but been unable to do so. Eight people testified that they had been frustrated when trying to get photo IDs. Six of the eight testified that the state would not issue photo IDs because they lack birth certificates, but they did not testify that they had tried to get them, let alone that they had tried but

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failed. Only two testified that distance or poverty hindered them when trying to obtain birth certificates or correct records to remove an error from a birth certificate.

Nor did the judge find that the situation of these eight differed from the situation of many persons in Indiana. The record in Crawford contains evidence about the same kind of of frustration, encountered by persons born out of state, who are elderly and may have forgotten their birthplaces and birthdates (if their parents ever told them), who are uneducated (and thus may not grasp how to get documents from public agencies), or who are poor (and so may have trouble getting to a public...

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