Just hours after hearing oral arguments on whether a Wisconsin law that could disenfranchise thousands of voters should be reinstated, a conservative panel of the United States Court of Appeals for the Seventh Circuit issued a single page order allowing the law to go into effect during this November’s election. The highly unusual order — federal appeals courts typically spend more than a few hours deliberating after oral argument before issuing a significant order that could affect thousands, and they normally explain their reasoning for doing so in a more lengthy opinion — was issued by three judges who were all appointed by Republican presidents. Judge Frank Easterbrook is a Reagan appointee. Judges Diane Sykes and John Tinder are both George W. Bush appointees.
At issue in this case was Wisconsin’s voter ID law, which requires voters to show ID at the polls in order to cast a ballot. Last April, a federal district court struck down the law, explaining that “no rational person could be worried about” voter fraud at the polls. Although voter ID laws’ supporters often claim they are needed to prevent such fraud, in-person voter fraud is so rare as to be virtually non-existent. A study of the approximately 3 million votes cast in Wisconsin during the 2004 election, for example, found just seven cases of fraud — and none of those cases would have been prevented by a voter ID law.
Voter ID does, however, disproportionately target low-income voters, minorities and young voters, all of whom tend to prefer Democrats to Republicans. According to Judge Lynn Adelman’s opinion striking down the Wisconsin law, 9 percent of registered voters lack the ID necessary to vote under the Wisconsin law. Adelman is a Clinton appointee.
The Seventh Circuit panel’s decision barely discusses the merits of the case. Instead, it rests on a claim that because the “Supreme Court of Wisconsin revised the procedures to make it easier for persons who have difficulty affording any fees to obtain the birth certificates or other documentation needed under the law, or to have the need for documentation waived,” the likelihood that voters will be disenfranchised is reduced. Yet, as law professor and voting law expert Rick Hasen points out, it is a “very bad idea” for the Seventh Circuit to permit Wisconsin to implement a major change to its election procedures this close to an election — and there is Supreme Court precedent saying as much.
In Purcell v. Gonzalez the justices considered the mirror-image of the case that is before the Seventh Circuit. Rather than permitting a state to implement a voter ID law, a federal appeals court halted Arizona’s voter ID law shortly before an election in Purcell. The Supreme Court reinstated the law, explaining that “[c]ourt orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.”
What’s sauce for the goose should be sauce for the gander as well. If it is dangerous to suspend a law making it harder to vote as an election approaches, then it is not clear why it is any less dangerous to permit that law to be implemented. Indeed, if anything, the danger is greater in Wisconsin because voters will now have only a short period of time to bring themselves into compliance with the voter ID law before they risk disenfranchisement. In the likely event that this case is appealed to the Supreme Court, we will discover whether the conservative Roberts Court still believes that it is risky to change voting procedures close to an election when the status quo is likely to benefit Democrats, and not Republicans.
If the Court allows the Seventh Circuit’s decision to stand, however, the big winner is Gov. Scott Walker (R), who is currently in a neck-and-neck race against Democratic challenger Mark Burke. If this voter ID law succeeds in changing the composition of the electorate so that it is whiter, richer and older than it would be without voter ID, that’s a boost for Walker’s campaign.
At a speech before the conservative Federalist Society in 2013, Walker hinted that, if he were someday elected president, he would like to appoint one of the judges who just reinstated the voter ID law to the Supreme Court. Referring to Judge Sykes, who was in the audience during his speech, Walker said that “[i]f I ever get the chance to appoint her to something in the future, I’d be inclined to do that as well.” If Walker wins his race for reelection, he is widely expected to run for president in 2016.