Frank v. Walker, s. 16–3003 &amp

• Decision Date: 29 August 2016
• Docket Number: 16–3052,Nos. 16–3003 &amp,Nos. 16–3083 &amp,16–3091,s. 16–3003 &amp,s. 16–3083 &amp
• Citation: 835 F.3d 649
• Parties: Ruthelle Frank, et al., Plaintiffs–Appellees, Cross–Appellants, v. Scott Walker, in his official capacity as Governor of the State of Wisconsin, et al., Defendants–Appellants, Cross–Appellees. One Wisconsin Institute, Inc., et al., Plaintiffs–Appellees, Cross–Appellants, v. Mark L. Thomsen, et al., Defendants–Appellants, Cross–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

835 F.3d 649

Ruthelle Frank, et al., Plaintiffs–Appellees, Cross–Appellants,

v.Scott Walker, in his official capacity as Governor of the State of Wisconsin, et al., Defendants–Appellants, Cross–Appellees.

One Wisconsin Institute, Inc., et al., Plaintiffs–Appellees, Cross–Appellants,

v.Mark L. Thomsen, et al., Defendants–Appellants, Cross–Appellees.

Nos. 16–3003 &

16–3052

Nos. 16–3083 &

16–3091

United States Court of Appeals, Seventh Circuit.

Amended August 29, 2016

Sean Young, Dale Ho, Sophia Lin Lakin, Attorneys, American Civil Liberties Union, Neil A. Steiner, Attorney, Dechert LLP, New York, NY, Tristia Bauman, Attorney, National Law Center on Homelessness & Poverty, Craig G. Falls, Attorney, Dechert LLP, Washington, DC, Laurence Jacques Dupuis, Karyn Rotker, Attorneys, American Civil Liberty Union of Wisconsin, Milwaukee, WI, Angela M. Liu, Attorney, Dechert LLP, Chicago, IL, Moffatt Laughlin McDonald, Attorney, American Civil Liberties Union Foundation, Inc., Atlanta, GA, for Plaintiffs–Appellees (Case No. 16–3003).

Misha Tseytlin, Daniel P. Lennington, Attorneys, Office of the Solicitor General, Wisconsin Department of Justice, Madison, WI, for Defendants–Appellants (Case No. 16–3003).

Sean Young, Dale Ho, Sophia Lin Lakin, Attorneys, American Civil Liberties Union, Neil A. Steiner, Attorney, Dechert LLP, New York, NY, Tristia Bauman, Attorney, National Law Center on Homelessness & Poverty, Craig G. Falls, Attorney, Dechert LLP, Washington, DC, Laurence Jacques Dupuis, Karyn Rotker, Attorneys, American Civil Liberty Union of Wisconsin, Milwaukee, WI, Angela M. Liu, Attorney, Dechert LLP, Chicago, IL, Moffatt Laughlin McDonald, Attorney, American Civil Liberties Union Foundation, Inc., Atlanta, GA, for Plaintiffs–Appellees (Case No. 16–3052).

Sean Michael Murphy, Brian Patrick Keenan, Attorneys, Office of the Solicitor General, Wisconsin Department of Justice, Madison, WI, for Defendants–Appellants (Case No. 16–3052).

Bruce V. Spiva, Attorney, Perkins Coie LLP, for Plaintiffs–Appellants (Case Nos. 16–3083, 16–3091).

Misha Tseytlin, Ryan J. Walsh, Attorneys, Office of the Solicitor General, Wisconsin Department of Justice, Madison, WI, for Defendants–Appellants (Case Nos. 16–3083, 16–3091).

Before Wood, Chief Judge, and Posner, Flaum, Easterbrook, Kanne, Rovner, Williams, Sykes, and Hamilton, Circuit Judges.

Per Curiam.

Before us are two sets of appeals and cross-appeals, each of which concerns Wisconsin's law requiring voters to have qualifying photo identification. In each matter, one originating in the Eastern District of Wisconsin and the other in the Western District of Wisconsin, the plaintiffs have petitioned for initial review en banc. We have consolidated their petitions for the purposes of this order. The plaintiffs argue that only initial en banc treatment will permit a decision in time for the court's conclusions to be put into effect for the election upcoming in November 2016. It is questionable whether action on that schedule is feasible, given that Wisconsin will start printing absentee ballots at the end of this month. We will assume for the sake of argument, however, that this obstacle alone is not enough to deny the petitions.

There is a more important concern, however, which has to do with the regularity of the judicial process. Whether this court should try to resolve the parties' disputes on such a short schedule depends in part on whether qualified electors will be unable to vote under Wisconsin's current procedures. In evaluating that question, we must take account of the conclusions reached by the district court in the Western District of Wisconsin in One Wisconsin Institute, Inc. v. Thomsen , No. 15–CV–324–JDP, 2016 U.S. Dist. LEXIS 100178 (W.D. Wis. July 29, 2016). The Eastern District of Wisconsin, in the decision under review in Nos. 16–3003 and 16–3052, concluded that every registered voter should be allowed to vote if he or she signs an affidavit stating that obtaining a qualifying photo ID would be unreasonably hard. A panel of this court has stayed that order. See Order, Frank v. Walker, Nos. 16–3003 & 16–3052, 2016 WL 4224616 (7th Cir. Aug. 10, 2016). The Western District, by contrast, declined to adopt the affidavit procedure but required Wisconsin to reform its ID Petition Process (IDPP), revised in May in response to this court's decision in Frank v. Walker , 819 F.3d 384 (7th Cir. 2016) (Frank II ).

Frank II held that “[t]he right to vote is personal and is not defeated by the fact that 99% of other people can secure the necessary credentials easily”, and that the state may not frustrate this right for any eligible person by making it unreasonably difficult to obtain a qualifying photo ID. Id. at 386. The district court in One Wisconsin Institute concluded from this that an eligible voter who submits materials sufficient to initiate the IDPP is entitled to a credential valid for voting, unless readily available information shows that the petitioner is not a qualified elector. The court in One Wisconsin Institute also held that the state must inform the general public that those who enter the IDPP will promptly receive a credential valid for voting, unless readily available...