The full U.S. Court of Appeals for the Seventh Circuit has split 5-5 on whether to restore the injunction blocking Wisconsin’s voter ID law for this election. Since the full court deadlocked, the three-judge panel’s decision to stay the injunction — or let the ID law go into effect — will stand, absent intervention by the U.S. Supreme Court (which so far has not been sought). There is an 11th seat for an active judge on the court, but that tie-breaking seat has remained vacant since January 2010. Following the 5-5 vote, the panel issued an opinion explaining its reasons for denying the request for rehearing and voting against the full court’s review, and the five judges who voted for continuing to block the ID law for this election filed a dissent. Both sides argued about the meaning of a 2006 Supreme Court opinion, Purcell v. Gonzalez. In Purcell, a district court had allowed Arizona to implement its new voter ID law, but with weeks left before the election, the Ninth Circuit issued an emergency stay, blocking the law pending its final decision. The Supreme Court unanimously reversed the Ninth Circuit, finding that court orders changing the status quo so close to an election risk voter confusion and suppress participation. With the election mere weeks away and thousands of absentee ballots already mailed without ID instructions, hundreds of which have been returned without ID, the dissenting Seventh Circuit judges reasonably think Purcell requires blocking the law for this election (whatever the ultimate decision on the ID law’s legality).
It is unclear why the other five judges who voted to let the law go forward think this case is different from the Arizona ID case. However, the most telling sentence is the following: “There is a profound difference between compelling a state to depart from its rules close to the election (Purcell) and allowing a state to implement its own statutes (this case).” Huh? What about the voter or the right to vote? The law balances individual rights against state interests, but reading this opinion, you would think that only the state government’s interests are valid considerations. These five judges are far more concerned with Wisconsin’s ability to implement a law immediately (after it has been blocked for 2.5 years) than they are with the rights of 300,000 voters, many of which are unlikely to be able to obtain valid ID in just seven weeks. The real difference between Purcell and this case is that the status quo in Purcell was that a voter needed to show ID, and the status quo here was that a voter did not (since February 2012). Sure, free voter IDs have been available at DMV offices, but all public education and outreach on the law ceased when the law was blocked. If anything, the risk to voters from such a last-minute change to the status quo and the bureaucratic maze they face to obtain a license to vote should counsel even more strongly in favor of keeping the law switched off until there’s a final decision finding it lawful.