In a boost to Republican presidential candidate Donald Trump, an especially conservative panel of three Republican-appointed judges stayed a trial judge’s decision weakening Wisconsin’s voter ID law. Voter ID laws are a common tactic favored by conservative lawmakers which tend to shift the overall makeup of the electorate rightward.
Although these laws, which require voters to show photo ID at the polls in order to cast a ballot, are frequently justified as a way to combat voter fraud at the polls, such fraud is virtually non-existent. Indeed, such fraud is so rare that a nearly two year-long investigation by a top Republican elections official and major supporter of voter ID found exactly zero cases of voter impersonation at the polls. Similarly, when the Supreme Court considered a voter ID law in 2008, the Court’s plurality opinion was only able to cite one example of voter fraud at the polls over the course of 140 years!
While voter ID laws are held up as the solution to a problem that is only marginally more common than dragon attacks or unruly hippogriffs, they do help create a more conservative electorate. Voters of color, low-income voters, and students — groups that all tend to prefer Democrats to Republicans — are all disproportionately likely to lack ID and therefore especially likely to be disenfranchised by these laws. While estimates vary regarding the scope of a voter ID law’s partisan impact, one study found that “Democratic turnout drops by an estimated 8.8 percentage points in general elections when strict photo identification laws are in place,” as opposed to 3.6 percentage points for Republicans.
Wednesday’s order in Frank v. Walker is the Wisconsin voter ID law’s second trip before a conservative panel of the United States Court of Appeals for the Seventh Circuit. Although a federal trial court struck the law down prior to the 2014 election, a panel of three Republican judges reinstated the law just hours after hearing oral arguments.
Voter ID laws are held up as the solution to a problem that is only marginally more common than dragon attacks or unruly hippogriffs
After some additional proceedings in the Seventh Circuit, the case returned to the trial court. Last month, Judge Lynn Adelman handed down another decision that significantly weakened the law’s ability to disenfranchise voters. Under Adelman’s decision, voters who lack ID may fill out an affidavit at the polls and then exercise their right to the franchise.
Wednesday’s order stays this decision by Judge Adelman. In an unsigned order, a Seventh Circuit panel similar to the one that originally reinstated the law criticized Adelman for failing to “identify” the specific voters who will be unable to obtain “a qualifying photo ID with reasonable effort” and tailor his remedy so that it only benefits those voters.
It is unclear how, exactly, a judge is supposed to identify these voters and tailor such a limited remedy, as the voters impacted by such laws are likely to live at the margins of society.
The most recent Seventh Circuit panel consisted of Judges Frank Easterbrook and Michael Kanne, both Reagan appointees, and Diane Sykes, a George W. Bush appointee. Trump has named Sykes as a potential Supreme Court appointee if he has the opportunity to place someone on the nation’s highest Court.
Though this order is very bad news for supporters of voting rights, Wisconsin voters who face disenfranchisement do have one reason for hope. After the first Seventh Circuit panel’s decision reinstating the voter ID law, lawyers challenging the law asked the full Seventh Circuit to hear the case, and the ten active judges of the court split 5–5 on whether to do so. Under the court’s rules, an even split means that the panel’s decision remains in place.
Since then, however, Judge John Tinder, a GW Bush appointee, took semi-retirement. Accordingly, the full court is likely split 5–4 on voter ID laws, with skeptics of the laws holding a majority.
So, while the decision of three Republican judges is a warning that voting rights remain on precarious footing in much of the country, the specific order those judges handed down on Wednesday could be short lived.