Frank v. Walker

• Decision Date: 19 October 2015
• Docket Number: Case No. 11–C–01128.
• Citation: 141 F.Supp.3d 932
• Parties: Ruthelle FRANK, et al., Plaintiffs, v. Scott WALKER, et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

141 F.Supp.3d 932

Ruthelle FRANK, et al., Plaintiffs,

v.Scott WALKER, et al., Defendants.

Case No. 11–C–01128.

United States District Court, E.D. Wisconsin.

Signed Oct. 19, 2015.

Craig G. Falls, Dechert LLP, 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, Tristia Bauman, Washington, DC, for Plaintiffs.

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

DECISION AND ORDER

LYNN ADELMAN

, District Judge.

When the plaintiffs commenced this suit, they alleged that Wisconsin's law requiring voters to present photo identification at the polls, 2011 Wis. Act 23 ("Act 23"), violated 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 unjustified 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, and the Seventh Circuit reversed. Frank v. Walker, 768 F.3d 744 (7th Cir.2014).

In my prior decision, I noted that I was leaving certain of the plaintiffs' constitutional claims unresolved. Frank, 17 F.Supp.3d at 842–43

. Those claims involved Act 23's failure to include certain forms of photo ID, such as veteran's ID cards, on the list of acceptable IDs, and its allegedly placing a poll tax on persons who would be required to surrender their out-of-state driver's licenses in order to obtain free ID cards to use for voting. The plaintiffs now move for class certification and for relief on these unresolved claims. I address those claims below.

However, before I turn to the unresolved claims, I discuss the plaintiffs' request for class certification and for relief on behalf of persons they describe as "Class 1 voters," i.e., those voters "who lack photo ID and face systemic practical barriers to obtaining an ID." See Pls.' Br. at 16, ECF No. 223. The relief they seek in connection with this claim is an injunction allowing persons to vote at their polling place without presenting an ID but instead by signing an affidavit attesting to their identity and to the difficulties they would face in obtaining ID. Id. at 18. This "Class 1" claim is not a claim I left unresolved in my prior decision. It is the constitutional claim on which I granted relief: I found that Act 23 imposed unjustified burdens on voters who currently lack photo ID and will face heightened barriers to obtaining ID. Frank, 17 F.Supp.3d at 862–63

. I specifically considered the plaintiffs' proposed affidavit procedure and determined that an injunction against the law's enforcement was a more appropriate remedy for the violation of the plaintiffs' rights. Id. The Seventh Circuit reversed my decision and did not remand for further proceedings in connection with this claim. It did not, for example, vacate the injunction and remand with instructions to consider granting some other remedy, such as the plaintiffs' proposed affidavit procedure. Rather, it held that the plaintiffs' claim was no different than the claim the Supreme Court considered and rejected in Crawford v. Marion County Election Board, 553 U.S. 181, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008). Frank, 768 F.3d at 751. I am not free to disregard this holding on remand. See, e.g., Kovacs v. United States, 739 F.3d 1020, 1024 (7th Cir.2014) ("The lower court is bound, through the mandate rule, to the resolution of any points that the higher court has addressed.").

For two reasons, the plaintiffs contend that the Class 1 claim they are now pursuing is different than the claim the Seventh Circuit considered and rejected: (1) they seek relief on behalf of a narrower class of voters,¹ and (2) they seek relief that is somewhat narrower than the relief I previously granted.² But these facts do not change the claim such that it falls outside the Seventh Circuit's holding on appeal. The Seventh Circuit characterized the plaintiffs' claim as a "facial" challenge that was indistinguishable from the claim in Crawford because it was based on "predictions about the effects of requiring photo ID" rather than on "results."

Frank, 768 F.3d at 747

. The court implied that a constitutional claim that is not foreclosed by Crawford would be one based on proof that "substantial numbers of persons eligible to vote have tried to get a photo ID but been unable to do so," id. at 746, or on proof that the law has in fact significantly reduced voter turnout, id. at 747, 751. As I read the Seventh Circuit's opinion, it holds that Crawford disposes of any constitutional claim based on a "prediction" that barriers to obtaining photo ID will prevent a group of persons from voting. The plaintiffs' reformulated Class 1 claim fits this description. It seeks relief on behalf of a group of voters who have not yet tried to obtain ID,³ based on the prediction that it will be hard for them to obtain ID, and that therefore they "are likely to be deterred from voting in future elections." Pls.' Br. at 18. This is precisely the claim that I previously resolved in the plaintiffs' favor and was reversed on. I continue to believe that my decision was correct and that the plaintiffs' claim is not foreclosed by Crawford, but the Seventh Circuit disagreed and I am bound by its decision. Therefore, I cannot reconsider the "Class 1" claim.

I. TECHNICAL COLLEGE ID

Plaintiff Domonique Whitehurst seeks to represent a class of "Wisconsin technical college students who have photo ID otherwise acceptable under the student ID provisions of Act 23." Pls.' Br. at 10, ECF No. 223. Under the student ID provisions of Act 23, such an ID may be used for voting if it is issued by a university or college in Wisconsin that is "accredited" (as defined by Wis. Stat. § 39.90(1)(d)

), and meets certain other requirements. See Wis. Stat. § 5.02(6m)(f). The plaintiff contends that any refusal to accept technical college IDs as acceptable forms of ID for complying with Act 23 would violate the Equal Protection Clause, and she seeks an injunction requiring the defendants to accept such IDs so long as they are otherwise indistinguishable from the types of student ID already accepted under Act 23.

Act 23 does not expressly state that technical college IDs may not be used for voting, and since November 2011, the Government Accountability Board (which is the state agency charged with implementing Act 23) has interpreted Act 23 to mean that technical college IDs are acceptable. However, when in September 2011 the GAB first considered whether technical college IDs are acceptable, it concluded that the legislature "did not intend for technical college ID cards to be treated as equivalent to those issued by other universities and colleges." Defs.' Ex. 1049 at p. 2. It reached this conclusion after noting that the legislature had rejected amendments to Act 23 that would have explicitly included technical college IDs in the list of acceptable IDs. Id. But then the GAB reconsidered this conclusion at its meeting on November 9, 2011, and it decided "to allow technical college ID cards for voting purposes." Defs.' Ex. 1050, fifth page. At the November meeting, the GAB determined that the ordinary meaning of the word "college," as used in the statute, included technical colleges. Id.

A few days after the GAB interpreted Act 23 to allow the use of technical college IDs, the Wisconsin Legislature's Joint Committee for the Review of Administrative Rules directed the GAB to embody its interpretation of Act 23 in an emergency administrative rule. See Defs.' Ex. 1050, seventh page; Wis. Stat. § 227.26(2)(b)

. The GAB then created an emergency rule allowing the use of technical college IDs for voting. Shortly thereafter, the state courts enjoined the implementation of Act 23, and the GAB suspended its administrative rulemaking. See Decl. of Kevin Kennedy ¶ 8–9, ECF No. 230. In May 2015, following the reversal of the state-court injunctions and the injunction I issued in this case, the GAB reissued the emergency rule, and Governor Scott Walker approved it. See ECF No. 235. The emergency rule has been in force ever since, and the GAB has taken steps to make that rule permanent. Kennedy Decl. ¶¶ 13–23. However, as of the date of this opinion, the permanent rule has not replaced the emergency rule.

The defendants contend that the GAB's interpretation of Act 23 and its rulemaking have rendered the plaintiff's equal-protection claim moot. However, although I agree that the plaintiff's claim is not justiciable at this time, I do so on the basis of ripeness rather than mootness. Mootness comes into play when it is too late to grant relief to the plaintiff; ripeness comes into play when it is too early to do so. See Capeheart v. Terrell, 695 F.3d 681, 684 (7th Cir.2012)

. By the time the plaintiffs filed this suit, the GAB had interpreted Act 23 to allow the use of technical college IDs for voting. The plaintiffs nonetheless included a claim on behalf of technical college students in their complaint because they feared that at some point in the future either the GAB, the governor, or the state legislature would take some action to prevent the use of technical college IDs for voting. See Am. Compl. ¶¶ 47–48, ECF No. 31. The plaintiff's claim thus relates to future events that may or may not occur, which raises a question of ripeness rather than...