Last August, a federal appeals court refused to reinstate a lower court’s order that would have dramatically weakened a voter suppression law in Wisconsin. It did so based on assurances by the state’s attorneys that Wisconsin had already taken adequate steps to mitigate the law’s effect on voters facing disenfranchisement.
It turns out those assurances were not true. As Ari Berman reports for The Nation, voters in Wisconsin still face potentially insurmountable obstacles between themselves and the ballot box. And these are the very same obstacles the state told the appeals court that it would eliminate.
To explain, Wisconsin’s voter ID law — a common method of voter suppression which disproportionately disenfranchises Democratic voters — is the subject of many ongoing lawsuits. Last July, a federal trial judge hearing one of these suits ordered the state to permit voters who lack ID to still exercise their right to vote if they complete an affidavit. Weeks later, an especially conservative three-judge panel of the United States Court of Appeals for the Seventh Circuit halted this trial judge’s order.
In response to this three-judge panel’s order, plaintiffs challenging the voter ID law asked the full Seventh Circuit to take up the case. In a previous iteration of this challenge to the state’s voter ID law, half of the Seventh Circuit’s active judges indicated that they are skeptical of the state’s law. Since then, one of the more conservative members of the court retired, leaving the judges who’ve expressed doubt about Wisconsin’s law with a majority.
Nevertheless, the full court refused to reinstate the trial judge’s order weakening the voter ID law in an August 26 order. Significantly, the August 26 order relied on Wisconsin’s representation that “the State has already voluntarily accommodated any concerns relating to the November 2016 election. Specifically, Wisconsin has enacted a rule that requires the Division of Motor Vehicles (DMV) to mail automatically a free photo ID to anyone who comes to DMV one time and initiates the free ID process.” Given this representation, the full court concluded that there was no “urgency” justifying action.
Yet, as Berman reports, the state’s new rule doesn’t amount to a hill of beans in much of the state. DMV employees told one voting rights activist that it would take eight weeks for the state to process an ID request, meaning that the election will be over before voters receive the ID they need to vote. Others were told it “would be ‘easier for everyone’” if they presented a birth certificate, even though the state told the Seventh Circuit that “no one must present documents” such as a “birth certificate, proof of citizenship, and the like.”
Altogether, “only three of ten DMVs” said that a voter “would get an ID to vote in a week or less, as state law requires.”
It’s unclear whether Wisconsin intentionally deceived the Seventh Circuit, or whether it merely made representations that individual government offices were not prepared to make into reality. In either event, however, the result is the same. According to Berman, “nine percent of registered voters in Wisconsin don’t have a valid voter-ID.” Many of these voters are likely to be disenfranchised because the Seventh Circuit believed the state’s false claims.
Worse, it is unclear whether this problem can be cured at this late date. The Supreme Court’s decision in Purcell v. Gonzalez warns that courts should be cautious about handing down decisions impacting a state’s election law as the election itself draws nigh. Though it is possible that a majority of the Seventh Circuit might have been willing to hobble the state’s voter ID law last August, Purcell suggests that it is less likely that they will be willing to do so now.
Nevertheless, most cases invoking Purcell do not involve the unusual facts of this particular case, where a court stayed its hand because it believed a claim made by a state that later turned out to be false.