Common Cause v. Thomsen

• Decision Date: 09 December 2021
• Docket Number: 19-cv-323-jdp
• Citation: 574 F.Supp.3d 634
• Parties: COMMON CAUSE and Common Cause Wisconsin, Plaintiffs, v. Mark L. THOMSEN, Ann S. Jacobs, Beverly R. Gill, Julie M. Glancey, Dean Knudson, Marge Bostelmann, Robert F. Spindell, Jr., in their official capacities as Commissioners of the Wisconsin Elections Commission, and Meagan Wolfe, in her official capacity as the Administrator of the Wisconsin Elections Commission, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

574 F.Supp.3d 634

COMMON CAUSE and Common Cause Wisconsin, Plaintiffs,

v.Mark L. THOMSEN, Ann S. Jacobs, Beverly R. Gill, Julie M. Glancey, Dean Knudson, Marge Bostelmann, Robert F. Spindell, Jr., in their official capacities as Commissioners of the Wisconsin Elections Commission, and Meagan Wolfe, in her official capacity as the Administrator of the Wisconsin Elections Commission, Defendants.

19-cv-323-jdp

United States District Court, W.D. Wisconsin.

Signed December 9, 2021

Cecilia Leonarda Aguilera, Jonathan Lee Sherman, Michelle E. Kanter Cohen, Fair Elections Center, Washington, DC, Diane Mary Welsh, Lester A. Pines, Pines Bach LLP, Madison, WI, for Plaintiffs.

Gabe Johnson, Jody J. Schmelzer, Sean Michael Murphy, State of Wisconsin Department of Justice, Madison, WI, for Defendants Mark L. Thomsen, Ann S. Jacobs, Beverly Gill, Dean Knudson, Meagan Wolfe.

Jody J. Schmelzer, Sean Michael Murphy, State of Wisconsin Department of Justice, Madison, WI, for Defendants Marge Bostelmann, Robert F. Spindell, Jr.

OPINION and ORDER

JAMES D. PETERSON, District Judge

Like many other states, Wisconsin requires voters to present identification before submitting a ballot in a local, state, or federal election. Ten different types of identification may be used, including a Wisconsin driver's license, a U.S. passport, or a Wisconsin identification card. College and university IDs may also be used, but those must meet several statutory requirements. See Wis. Stat. 5.02(6m)(f). In this case, plaintiffs Common Cause and Common Cause Wisconsin challenge the statutory requirements that a student ID must display the following four things: (1) an issuance date, (2) an expiration date, (3) an expiration date not more than two years after the issuance date, and (4) a signature. Plaintiffs contend that the requirements violate the Constitution as well as a federal statute on voting rights, 52 U.S.C. § 10101(a)(2)(B). They seek a declaration that the requirements violate federal law and an injunction prohibiting their enforcement.

Both sides move for summary judgment. Dkt. 45 and Dkt. 47.¹ Plaintiffs question the usefulness of an expiration date, an issuance date, and a signature, and they make many good points. If the question were whether the requirements at issue were likely to advance an important state interest, the court might well conclude that they don't. But that isn't the standard.

To survive plaintiffs’ constitutional challenge, the requirements at issue in § 5.02(6m)(f) must be rationally related to a legitimate governmental interest. To survive plaintiffs’ statutory challenge, the requirements must be material to determining whether an individual is qualified to vote under Wisconsin law. The court concludes that the challenged requirements meet both of those relatively lenient standards.

The requirements that plaintiffs challenge are common features of other types of voter IDs in Wisconsin, which undermines a claim of discrimination against students. And even if Wisconsin's election laws impose more requirements on student IDs than on other types of voter ID, that doesn't make the requirements irrational. Unlike other IDs used for voting, student IDs aren't otherwise regulated by federal, state, or tribal law, so any school's ID may be different from another's. Under these circumstances, it would be rational for the legislature to conclude that statutorily imposed uniformity was appropriate for student IDs—to discourage use of fake IDs and assist election workers in recognizing valid IDs. Plaintiffs’ statutory claim fails because the state statutory requirements for a voter ID are directly material to determining whether an individual is qualified to vote under Wisconsin law. For these reasons, which are more fully explained below, the court will grant defendants’ summary judgment motion and deny plaintiffs’ motion.

ANALYSIS

A. Standing

The first question in every case brought in federal court is whether the court may exercise subject matter jurisdiction over the case, and one component of jurisdiction is standing. See Hollingsworth v. Perry , 570 U.S. 693, 704, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013). A plaintiff has standing to sue if it shows three things: (1) it suffered an injury in fact; (2) the injury is fairly traceable to the challenged conduct of the defendant; and (3) the injury is likely to be redressed by a favorable judicial decision. Gill v. Whitford , ––– U.S. ––––, 138 S. Ct. 1916, 1929, 201 L.Ed.2d 313 (2018). The injury must be an "invasion of a legally protected interest that is concrete and particularized," meaning that it "affects the plaintiff in a personal and individual way." Id. (internal quotation marks and alterations omitted). A plaintiff can't rely on a "generalized grievance about the conduct of government." Id. at 1931. Neither side raises the issue of standing in their briefs, but the court has an independent obligation to do so. See Summers v. Earth Island Inst. , 555 U.S. 488, 499, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009).

Organizations like Common Cause and Common Cause Wisconsin can demonstrate standing through an injury to one of their members or through an injury to the organizations themselves. See Prairie Rivers Network v. Dynegy Midwest Generation, LLC , 2 F.4th 1002, 1008 (7th Cir. 2021) ; Cook Cty., Illinois v. Wolf , 962 F.3d 208, 218–19 (7th Cir. 2020). In this case, plaintiffs don't identify any injuries to their members. The parties stipulate that five out of 73 postsecondary educational institutions in Wisconsin do not provide a student ID that complies with § 5.02(6m)(f), Dkt. 43, ¶ 56, but plaintiffs don't allege that their members include any students at those schools. In fact, plaintiffs haven't identified any students who have been unable to obtain a compliant ID before voting or who haven't been able to vote as a result of the requirements in § 5.02(6m)(f).²

Common Cause Wisconsin says that its mission includes protecting the rights of voters, and it must divert resources from other matters to educate students on the requirements of § 5.02(6m)(f) and on how to obtain a compliant ID. Dkt. 43, ¶¶ 77–79, 83–87. The need to divert resources to address the burdens of a statute is an injury in fact. See Common Cause Indiana v. Lawson , 937 F.3d 944, 950–52 (7th Cir. 2019) ; Democratic Nat'l Comm. v. Bostelmann , 488 F. Supp. 3d 776, 796–97 (W.D. Wis. 2020). That injury is also fairly traceable to § 5.02(6m)(f), and it could be redressed through success in this lawsuit. So the court finds that Common Cause Wisconsin has standing to sue. But plaintiffs don't allege that Common Cause has devoted any resources to educating Wisconsin students, and they don't otherwise identify any injuries suffered by the national organization, so the court will dismiss the claims of Common Cause for lack of standing.

B. Merits

Section 5.02(6m) of the Wisconsin Statutes lists ten types of identification that may be used for voting purposes in Wisconsin. One type of approved identification is:

[a]n unexpired identification card issued by a university or college in this state that is accredited, as defined in s. 39.30(1)(d), or by a technical college in this state that is a member of and governed by the technical college system under ch. 38, that contains the date of issuance and signature of the individual to whom it is issued and that contains an expiration date indicating that the card expires no later than 2 years after the date of issuance if the individual establishes that he or she is enrolled as a student at the university or college on the date that the card is presented.

Wis. Stat. § 5.02(6m)(f).³

Common Cause Wisconsin challenges the portions of § 5.02(6m)(f) that require student IDs to display the following four things: (1) an issuance date, (2) an expiration date, (3) an expiration date not more than two years after the issuance date, and (4) a signature. Common Cause Wisconsin asserts claims under both 52 U.S.C. § 10101(a)(2)(B) and the Constitution. The court has a duty to avoid federal constitutional questions when possible, see Gibson v. American Cyanamid Co. , 760 F.3d 600, 608 (7th Cir. 2014), so the court will begin with the statutory claim.

1. Statutory claim

Common Cause Wisconsin's statutory claim arises under § 10101(a)(2)(B), which is sometimes referred to as the "materiality provision." It states:

No person acting under color of law shall ... deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election.

Section 10101 also limits the use of literacy tests and prohibits the use of disparate standards within a political subdivision in determining whether an individual is qualified to vote. 52 U.S.C. § 10101(a)(2)(A) and (C).

As an initial matter, defendants challenge whether § 10101(a)(2)(B) applies at all to requirements for a voter ID. Defendants say that the purpose of the law, which was enacted as part of the Civil Rights Act of 1964, was to address discrimination against African Americans who were trying to register to vote. See Fla. State Conf. of NAACP v. Browning , 522 F.3d 1153, 1173 (11th Cir. 2008). And they cite three cases in which courts concluded that § 10101 doesn't apply to voter ID laws. Common Cause/Georgia League of Women Voters of Georgia, Inc. v. Billups , 439 F. Supp. 2d 1294, 1357–58 (N.D. Ga. 2006) ; Indiana Democratic Party v. Rokita , 458 F. Supp. 2d 775, 841 (S.D. Ind. 2006) ; Gonzalez v. Arizona , No. CV 06-1268-PHX-ROS, 2007 WL 9724581, at *2 (D. Ariz. Aug. 28, 2007).

Defendants raise a fair point about the purpose of the § 10101. Other courts reviewing the statute's legislative history have noted that its primary purpose was "to address the practice of requiring unnecessary information for voter...