Frank v. Walker

• Decision Date: 19 July 2016
• Docket Number: Case No. 11-C-1128
• Citation: 196 F.Supp.3d 893
• Parties: Ruthelle FRANK, et al., on behalf of themselves and all others similarly situated, Plaintiffs, v. Scott WALKER, in his official capacity as Governor of the State of Wisconsin, et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

196 F.Supp.3d 893

Ruthelle FRANK, et al., on behalf of themselves and all others similarly situated, Plaintiffs,
v.
Scott WALKER, in his official capacity as Governor of the State of Wisconsin, et al., Defendants.

Case No. 11-C-1128

United States District Court, E.D. Wisconsin.

Signed July 19, 2016

196 F.Supp.3d 897

Craig G. Falls, Dechert LLP, Tristia Bauman, Washington, DC, Karyn L. Rotker, Laurence J. Dupuis, American Civil Liberties Union of WI Foundation Inc., Milwaukee, WI, M. Laughlin McDonald, American Civil Liberties Union Foundation Inc., Atlanta, GA, Neil A. Steiner, Diane N. Princ, Dechert LLP, Dale E. Ho, Sean J. Young, Sophia L. Lakin, American Civil Liberties Union Foundation Inc., New York, NY, Angela M. Liu, Dechert LLP, Chicago, IL, Nathan D. Foster, Arnold & Porter LLP, Denver, CO, for Plaintiffs.

Brian P. Keenan, Sean Michael Murphy, Clayton P. Kawski, United States Department of Justice, Madison, WI, for Defendants.

DECISION AND ORDER

LYNN ADELMAN, District Judge

The plaintiffs, a number of individuals who are eligible to vote in Wisconsin, filed this suit in 2011, alleging that Wisconsin's law requiring them to present photo identification at the polls, 2011 Wis. Act 23 ("Act 23"), violates the Constitution and Section 2 of the Voting Rights Act. Following a trial on the claims alleged in this and a companion case, I concluded that Act 23 placed an undue burden on the plaintiffs' voting rights and therefore violated the Fourteenth Amendment. I also concluded that Act 23 violated Section 2 of the Voting Rights Act. Having found these violations, I entered an injunction prohibiting the defendants from enforcing the photo ID requirement. Frank v. Walker , 17 F.Supp.3d 837 (E.D.Wis.2014). The defendants appealed,

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and the Seventh Circuit reversed. Frank v. Walker , 768 F.3d 744 (7th Cir.2014) (" Frank I ").

On remand, the plaintiffs sought relief in connection with certain claims that I did not resolve in my first decision. I issued a decision denying relief on those claims on October 19, 2015. The plaintiffs appealed, challenging two aspects of my decision. First, the plaintiffs challenged my conclusion that Frank I precluded me from considering the plaintiffs' claim for relief on behalf of persons who cannot obtain Act 23-qualifying ID with reasonable effort. Second, the plaintiffs challenged my conclusion that Act 23's exclusion of veterans' ID cards from the list of IDs that may be used for voting did not violate the Equal Protection Clause.

While the plaintiffs' appeal was pending, Wisconsin amended Act 23 to require election officials to accept veterans' IDs. See 2015 Wis. Act 261, § 2. Because the parties agreed that this rendered the plaintiffs' claim regarding the refusal to accept such IDs moot, the Seventh Circuit vacated my decision on that claim and remanded with instructions to dismiss it as moot. See Frank v. Walker , 819 F.3d 384, 385 (7th Cir.2016) (" Frank II "). In accordance with that instruction, I will in this order dismiss that claim as moot.

As to the plaintiffs' other argument, the Seventh Circuit held that its decision in the first appeal did not preclude me from considering the plaintiffs' claim for relief on behalf of those who cannot obtain ID with reasonable effort. It therefore vacated my dismissal of that claim and remanded the case for further proceedings. Id. at 385–88.

Now that the case has been remanded a second time, the plaintiffs have filed a motion to supplement their complaint, see Fed. R. Civ. P. 15(d), a motion to certify a class, see Fed. R. Civ. P. 23, and a motion for a preliminary injunction, see Fed. R. Civ. P. 65(a). The motion for a preliminary injunction seeks an order requiring the defendants to offer voters who do not possess an ID and who cannot obtain one with reasonable effort the option of receiving a ballot by executing an affidavit to that effect.¹ The plaintiffs also seek an order requiring the defendants to publicize this affidavit option by sending individualized notice to all registered voters who, according to DMV records, might not possess qualifying ID.

I will grant the plaintiffs' motion for a preliminary injunction and will order the defendants to implement an affidavit option in time for the general election on November 8, 2016. As explained in more detail below, although most voters in Wisconsin either possess qualifying ID or can easily obtain one, a safety net is needed for those voters who cannot obtain qualifying ID with reasonable effort. The plaintiffs' proposed affidavit option is a sensible approach that will both prevent the disenfranchisement of some voters during the pendency of this litigation and preserve Wisconsin's interests in protecting the integrity of its elections. I will also grant the plaintiffs' motion to file a supplemental complaint and their motion for class certification. However, I will not require the defendants to mail individualized notice of the affidavit option to certain voters.

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I.

I begin with the plaintiffs' motion to file a supplemental complaint. The sole purpose of this pleading is to add three named plaintiffs and potential class representatives to the case: Melvin Robertson, Leroy Switlick, and James Green. The proposed supplemental complaint alleges that these individuals do not possess Act 23-qualifying ID, that they face significant barriers to obtaining ID, and that the requirement to present ID at the polls prevented them from voting in Wisconsin elections during 2016. See Decl. of Sean J. Young Ex. 1, ECF No. 280-1.

The defendants contend that I should not allow these individuals to be added as plaintiffs because their claims will be addressed as part of a separate lawsuit that is pending in the Western District of Wisconsin, One Wisconsin Institute, Inc., et al. v. Judge Gerald C. Nichol, et al. , W.D. Wis. Case No. 15–C–0324. The defendants contend that adding the new plaintiffs to this case would be duplicative and inefficient. However, Robertson, Switlick and Green are not parties to the One Wisconsin case. It is true that they may benefit from any relief granted in One Wisconsin , but that is also true of the individuals who are already named as plaintiffs in this case. If I were to deny Robertson, Switlick and Green leave to join this case, they would still have a right to file their own, separate suit, and thus not allowing them to become parties in this case would only increase the risk of duplicative litigation. It is better to have their claims and the claims of the existing plaintiffs, all of which are virtually identical, litigated as part of a single action. For that reason, I will grant the plaintiffs' motion to file a supplemental complaint.

II.

I next address the defendants' argument that no plaintiff has standing to seek an affidavit option on behalf of persons who lack ID and cannot obtain ID with reasonable effort. To have standing, a plaintiff must show that he has suffered an injury in fact that is fairly traceable to the defendants' conduct and that is likely to be redressed by a favorable judicial decision. See, e.g., Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

The plaintiffs have put forth the following individuals as plaintiffs with standing to pursue an affidavit option: Ruthelle Frank, Shirley Brown, DeWayne Smith, Melvin Robertson, Leroy Switlick, and James Green. Pls.' Br. at 24, ECF No. 279. So long as one of these individuals has standing, the claim may proceed rather than be dismissed for lack of standing. See Crawford v. Marion County Election Bd. , 553 U.S. 181, 189 n. 7, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008).

The defendants point out that two of these plaintiffs, Brown and Smith, have obtained ID, and contend that therefore their claims are moot. A claim becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party. Knox v. Serv. Employees Int'l Union, Local 1000 , 567 U.S. 298, 132 S.Ct. 2277, 2287, 183 L.Ed.2d 281 (2012). Here, because Brown and Smith have obtained ID, they would not benefit from the relief that the plaintiffs currently seek, i.e., an order requiring the defendants to allow those who lack ID to obtain a ballot by signing an affidavit stating that they have been unable to obtain ID with reasonable effort. Thus, such an order would not be effectual relief for them. However, these plaintiffs still have a sufficient stake in this case to remain plaintiffs. That is because the plaintiffs intend to argue on appeal that Frank I was wrongly decided and that Act 23 should be enjoined in its entirety. See Pls.' Br. at 6 n.4, ECF No. 279. As I noted in my original decision,

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those who possess IDs have standing to seek an injunction that prevents them from having to show their IDs at the polls to receive a ballot. Frank , 17 F.Supp.3d at 866. But, for purposes of this order, I will assume that Brown and Smith do not have standing to seek an affidavit option and examine whether any of the other plaintiffs do.

The...