Updated at 12:58 pm.
Oct. 10. 2014 – Wisconsinites are not required to show photo identification (ID) to vote in upcoming elections, under an emergency order issued by the U.S. Supreme Court.
Last night, the U.S. Supreme Court issued a one-paragraph order granting an emergency request to block a recent ruling by the U.S. Court of Appeals for the Seventh Circuit, which had lifted a permanent injunction that was blocking the voter ID law. Wisconsin Federal District Judge Lynn Adelman issued the injunction back in April.
Since April, the voter ID law has been the subject of swift-moving litigation through state and federal courts, as both sides scrambled before the 2014 elections. A three-judge panel for the Seventh Circuit Court of Appeals lifted the injunction on Sept. 12, followed by an opinion that said the voter ID law had a “sufficiently great” chance of surviving.
But the U.S. Supreme Court reversed course, effectively saying the voter ID law that requires photo ID should be blocked while the U.S. Supreme Court mulls whether to take the case on appeal. The Seventh Circuit upheld the voter ID law on Monday.
The emergency application, submitted to Justice Elena Kagan, was considered by the full court and received the requisite majority. Three justices dissented but conceded that “the proximity of the upcoming election” provided a “colorable basis” for the decision.
“It is particularly troubling that absentee ballots have been sent without any notation that proof of photo identification must be submitted,” wrote Justice Samuel Alito for the dissenters, which included Justices Antonin Scalia and Clarence Thomas.
The majority’s order was unsigned and did not provide a reason. It simply stated that “the Seventh Circuit’s stay of the district court’s permanent injunction is vacated pending the timely filing and disposition of a petition for writ of certiorari. …”
It also said the order would “terminate automatically” if the Court denied review of the case. If granted, the voter ID law would be blocked until the Court makes a ruling.
“The order blocking enforcement of the law will clearly last throughout the time remaining for voting in Wisconsin,” wrote Lyle Denniston for SCOTUSblog.
Wisconsin’s voter ID law, 2011 Wisconsin Act 23, is among a number of sweeping voting laws passed by Republican-controlled states nationwide in the last few years. Many if not all of those laws have been challenged in state and federal courts.
In August, a Wisconsin Supreme Court majority upheld Act 23, concluding that it was legal but declaring that indigent applicants should be relieved from the costs associated with obtaining ID. But the law remained blocked and tied up in federal courts.
Challengers have said requiring photo ID unconstitutionally burdens the right to vote and disenfranchises low-income and minority voters, a violation of the federal Voting Rights Act. The Wisconsin Department of Justice, which is defending the law, says the voter ID law deters voter fraud and is a reasonable regulation on elections.
Through its latest decision, the U.S. Supreme Court says the voter ID law should not be in effect right now. A decision to grant or deny certiorari will likely come in due course.
The High Court ruled on other emergency applications relating to restrictive voting laws in recent days, but ruled that those laws will remain in effect pending appeal.
In two cases involving Ohio and North Carolina, voter ID was not the issue. The Court, in a 5-4 decision, ruled that Ohio could enforce a restriction on early voting. The Court also ruled that North Carolina could enforce prohibitions on same-day registration and the casting of ballots out-of-precinct. Thus, the Court reversed course for Wisconsin.
Seventh Circuit Squabbling
If the U.S. Supreme Court decides to take the case, it will likely be reviewing a decision by a three-judge panel of U.S. Court of Appeals for the Seventh Circuit, which upheld Act 23 on Monday.
A request to rehear the appeal en banc (full court) was denied because the court divided 5-5 to rehear the case, meaning there was no majority. There is currently a vacancy on the court, which normally has 11 judges.
Today, five judges joined a dissenting opinion, arguing that a rehearing en banc should have been granted. Judge Richard Posner ripped the three-judge panel's opinion as "riven with weaknesses” while reviewing and analyzing the evidentiary record.
The three-judge panel, in an opinion by Judge Frank Easterbrook delivered Monday, had concluded that Wisconsin’s voter ID law differs, “but not in ways that matter,” from Indiana’s voter ID law, which the U.S. Supreme Court upheld in 2008.
The case was Crawford v. Marion County Election Board, 553 U.S. 181 (2008). Former Wisconsin Supreme Court Justice Diane Sykes, now judge for the Seventh Circuit Appeals Court, joined the Easterbrook opinion, as did Judge John Tinder.
The Seventh Circuit Court of Appeals has split 5-5 twice in this case, first on whether to rehear the three-judge panel’s decision to unblock Act 23 and allow implementation for the upcoming elections.
This week, the court split 5-5 on whether to rehear the case en banc on the merits. In today's dissenting opinion, Judge Posner notes that the Seventh Circuit could still reconsider this latest 5-5 decision and hear it en banc. It isn't clear what effect, if any, an en banc decision would have on the U.S. Supreme Court's emergency order to block Act 23 for now.
