Luft v. Evers

• Decision Date: 29 June 2020
• Docket Number: Nos. 16-3083 & 16-3091,Nos. 16-3003 16-3052,s. 16-3003 16-3052,s. 16-3083 & 16-3091
• Citation: 963 F.3d 665
• Parties: Justin LUFT, et al., Plaintiffs-Appellees, Cross-Appellants, v. Tony EVERS, Governor of Wisconsin, et al., Defendants-Appellants, Cross-Appellees. One Wisconsin Institute, Inc., et al., Plaintiffs-Appellants, Cross-Appellees, v. Ann S. Jacobs, Chair, Wisconsin Elections Commission, et al., Defendants-Appellees, Cross-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

963 F.3d 665

Justin LUFT, et al., Plaintiffs-Appellees, Cross-Appellants,

v.Tony EVERS, Governor of Wisconsin, et al., Defendants-Appellants, Cross-Appellees.

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

v.Ann S. Jacobs, Chair, Wisconsin Elections Commission, et al., Defendants-Appellees, Cross-Appellants.

Nos. 16-3003 16-3052

Nos. 16-3083 & 16-3091

United States Court of Appeals, Seventh Circuit.

Argued February 24, 2017

Decided June 29, 2020

Tiffany Alora Thomas, Dale Ho, Sophia Lin Lakin, Attorneys, American Civil Liberties Union Foundation, Inc., Voting Rights Project, New York, NY, Tristia Bauman, Attorney, National Law Center on Homelessness & Poverty, Washington, DC, Laurence Jacques Dupuis, Karyn Rotker, Attorneys, American Civil Liberty Union of Wisconsin, Milwaukee, WI, Craig G. Falls, Attorney, Dechert LLP, Washington, DC, Angela M. Liu, Attorney, Dechert LLP, Chicago, IL, Neil A. Steiner, Attorney, Dechert LLP, New York, NY, for Plaintiffs-Appellees in 16-3003 and 16-3052.

Gabe Johnson-Karp, Sean Michael Murphy, Anthony D. Russomanno, Jody J. Schmelzer, Attorneys, Wisconsin Department of Justice, Madison, WI, for Defendants-Appellants in 16-3003 and 16-3052.

Susan M. Crawford, Attorney, Pines Bach LLP, Madison, WI, for Amici Curiae in 16-3003 and 16-3052.

Gabe Johnson-Karp, Sean Michael Murphy, Anthony D. Russomanno, Jody J. Schmelzer, Attorneys, Wisconsin Department of Justice, Madison, WI, for Defendants-Appellants in 16-3052.

Bruce V. Spiva, Attorney, Perkins Coie LLP, Washington, DC, for Plaintiffs-Appellees in 16-3083 and 16-3091.

Gabe Johnson-Karp, Sean Michael Murphy, Anthony D. Russomanno, Jody J. Schmelzer, Attorneys, Wisconsin Department of Justice, Madison, WI, for Defendants-Appellants in 16-3083 and 16-3091.

Yael Bromberg, Attorney, Georgetown University Law Center, Washington, DC, for Amicus Curiae Common Cause in 16-3083 and 16-3091.

Diane M. Welsh, Attorney, Pines Bach LLP, Madison, WI, for Amici Curiae League of Women Voters of Wisconsin, City of Madison, and Tom Barrett in 16-3083 and 16-3091.

Before Easterbrook, Kanne, and Sykes, Circuit Judges.

Easterbrook, Circuit Judge.

Change is a constant in Wisconsin's rules for holding elections. Two suits, which we have consolidated for decision on appeal, present challenges to more than a dozen provisions that have been enacted or amended since 2011. Although we have tried to treat similar legal questions together and otherwise simplify the exposition, a brief introduction may help the reader.

Wisconsin used to rely on special registration deputies, who registered voters at places such as high schools. Municipalities could require landlords to distribute registration forms to new tenants. The state replaced these mechanisms with an electronic registration system. 2011 Wis. Acts 23, 240; 2013 Wis. Act 76; 2015 Wis. Act 261. Persons who want to register now must send proof of residence in either electronic or hard-copy format. 2013 Wis. Act 182, as elaborated in a ruling by the Government Accountability Board. (The Board has since been replaced by the Wisconsin Elections Commission, whose members are defendants.) Students who want to prove residence using an educational institution's dormitory list may do so only if the list contains citizenship information. 2011 Wis. Act 23. And to vote for an office other than President or Vice President, voters must have been residents for at least 28 days (instead of 10 days, as before). Ibid .

Voters may cast absentee ballots. A ballot may be picked up in person, or the state will mail one, but email and fax can be used to obtain a ballot in only a few circumstances. 2011 Wis. Act 75. Wisconsin will reject or return an absentee ballot for spoilage, damage, or defective certification. 2011 Wis. Act 227. Such irregularities are visible without opening the ballot; thus they may be remedied before officials feed the ballots through counting machines. Wisconsin also has a variant of early voting: voters may cast their absentee ballots in person. The number of days, and hours per day, allowed for this procedure have fluctuated. See 2011 Wis. Act 23; 2013 Wis. Act 146. Currently the state allows in-person absentee voting (which is to say, early voting) from 14 days before the election through the Sunday preceding it, without any restriction on the number of hours per day that a municipality may choose to keep its offices open. 2017 Wis. Act 369 § 1K. Municipalities may offer in-person absentee voting at multiple locations. Id . at § 1JS.

At the polls, voting a straight ticket is no longer an option. 2011 Wis. Act 23. Observers must remain between three and eight feet from the places where voters announce their presence and register to vote. 2013 Wis. Act 177. Photographic identification is necessary for in-person voting. 2011 Wis. Act 23. Students may use college-issued credentials, but only before an ID's expiration date. Wis. Stat. § 5.02(6m)(f). People who lack the documents required to receive a photo ID may petition the state for assistance and a temporary receipt. 2017 Wis. Act 369 §§ 91–95.

This isn't the first time that recent changes in Wisconsin's election system have been before us. We reversed a federal district court's determination, 17 F. Supp. 3d 837 (E.D. Wis. 2014), that the state's requirement of photo ID violates the Constitution and the Voting Rights Act. Frank v. Walker , 768 F.3d 744 (7th Cir. 2014) ( Frank I ). And we vacated a subsequent decision, 141 F. Supp. 3d 932 (E.D. Wis. 2015), that construed Frank I as having resolved in Wisconsin's favor all arguments relating to particular voters’ difficulty in obtaining qualifying photo IDs. Frank v. Walker , 819 F.3d 384 (7th Cir. 2016) ( Frank II ). Because the right to vote is personal, the state must accommodate voters who cannot obtain qualifying photo IDs with reasonable effort.

On remand, one district judge ordered Wisconsin to implement an "affidavit option" that excuses the requirement for photo ID when any voter states that obtaining one requires too much effort. 196 F. Supp. 3d 893 (E.D. Wis. 2016). That injunction was promptly stayed, 2016 WL 4224616, 2016 U.S. App. LEXIS 14917 (7th Cir. Aug. 10, 2016), and the court declined to hear the dispute en banc, though we issued an opinion holding the state to certain representations it made about enforcement. Frank v. Walker , 835 F.3d 649 (7th Cir. 2016) (en banc) ( Frank III ). Around the same time a different district court decided that many of Wisconsin's other electoral changes violate either the Constitution or the Voting Rights Act. One Wisconsin Institute, Inc. v. Thomsen , 198 F. Supp. 3d 896 (W.D. Wis. 2016). Everyone has appealed from almost every aspect of both district courts’ decisions, and we consolidated the appeals.

I

One Wisconsin involves more than a dozen of the provisions mentioned above, each contested under a number of theories. The court's rationales for ruling in the plaintiffs’ favor on several provisions overlap, and we consolidate our treatment of them here.

A

The judge held that several provisions reflect racial discrimination. For example, the court concluded that the state's reduction in the number of hours available for in-person absentee voting (i.e., early voting) would have a disparate impact on black voters in Milwaukee, because those voters are more likely to use that procedure. What's more, the judge found, state legislators knew of that effect. Yet the state did not have a reason for this change that the judge found persuasive. Many of its explanations, the judge thought, boil down to a desire to promote the chances of Republican candidates compared with Democratic candidates. Because that is a poor if not illegitimate reason, the judge believed, and produces a racially disparate effect, the judge inferred that racial discrimination is the correct explanation.

There are two problems with this approach. First, it is incompatible with the standard for discriminatory intent articulated in Personnel Administrator of Massachusetts v. Feeney , 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979). Second, the belief that a legislature cannot take politics into account when making decisions that affect voting was disapproved (after the district court's decision) by Rucho v. Common Cause , ––– U.S. ––––, 139 S. Ct. 2484, 204 L.Ed.2d 931 (2019). If one party can make changes that it believes help its candidates, the other can restore the original rules or revise the new ones. The process does not include a constitutional ratchet.

Racial discrimination, as a constitutional matter, occurs only when a public official intends to hold a person's race against him. Washington v. Davis , 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). See also Reno v. Bossier Parish School Board , 520 U.S. 471, 481–82, 117 S.Ct. 1491, 137 L.Ed.2d 730 (1997), and Mobile v. Bolden , 446 U.S. 55, 66–67, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980) (plurality opinion), which apply Davis to voting-rights cases. This is equally true of claims under the Fifteenth Amendment. See Bossier Parish School Board , 520 U.S. at 481, 117 S.Ct. 1491. And Feeney concludes that knowledge of a law's consequences differs from intent to produce those consequences; equating the two would treat disparate impact as a constitutional violation, something that Davis rejected. Feeney observed that government often does things that have disparate impact but can be said to intend that effect only when it acts because of, rather than in spite of (or with indifference to), the disparate effect. 442 U.S. at 279, 99 S.Ct. 2282.

" Feeney holds that it is not enough to show that state actors knew that women would fare worse than men under an official policy; instead the plaintiff must show that the state actors adopted the policy because of, not in spite of or with indifference to, its effect on women." Bond v. Atkinson , 728 F.3d 690, 693 (7th Cir. 2013). After all, a legislature "may know what its laws do,...