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On August 26, 2016, the 7th Circuit, in a per curiam opinion, denied Wisconsin voter ID challengers a petition for hearing en banc. This opinion was the latest decision in the litigation seeking to invalidate the Wisconsin photo voter ID law that had been signed into law by Governor Scott Walker in 2011.

The opinion dealt with two lower court decisions: (1) One Wisconsin Institute v. Thomsen, in the Western District of Wisconsin where District Judge James Peterson required the State to educate the public about a temporary voter ID receipt permitting those without photo ID to vote (the ID petition process or IDPP); and (2) Frank v. Walker in the Eastern District, where District Judge Lynn Adelman had ruled that the voter ID law must allow electors to use affidavits attesting that they do not have photo ID. While the 7th Circuit allowed Judge Peterson’s ruling to stand, Judge Adelman’s ruling was stayed.

The 7th Circuit was reluctant to rewrite state election laws, refusing to insert in an affidavit requirement as Judge Adelman did, because it would cause a disruption to the electoral system when absentee ballots need to be printed in a month’s time. Furthermore, the 7th Circuit disapproved of the breadth of Judge Adelman’s preliminary injunction which ignored the recent amendments to the voter ID law and the fact-specific as-applied challenges to the voter ID law. The 7th Circuit heavily relied on the Supreme Court precedent in Crawford v. Marion County Election Board (upholding the Indiana voter ID law), particularly in its finding that the inconvenience of going to a DMV is not a substantial burden on voting, and does not constitute more than the ordinary burdens of voting.

However, the 7th Circuit found merit to the approach of the Western District. The IDPP had been in existence since September 2014 and was revised by emergency rule in May 2016. The IDPP involved the Division of Motor Vehicles automatically mailing a free photo ID to whomever initiates their free ID process at the DMV (submits proof of identity and Wisconsin residency), with requiring them to present underlying documents such as birth certificate or proof of citizenship. The elector receives a valid receipt to vote for 60 days which will be renewed until 180 days unless DMV denies due to voter fraud or ineligibility. The 7th Circuit considered it significant that the DMV provides free temporary voter ID receipts allowing electors to cast ballots. The Court only makes the additional requirement that the State educate the public about IDPP prior to the election.

Although appeal to the U.S. Supreme Court is available, the 7th Circuit opinion is likely to stand for the 2016 general election, because of the 4-4 split among the justices.  However, the per curiam opinion is not a decision on the merits, so the case will be briefed and argued after the election.

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The author would like to thank Richard B. Raile, associate at BakerHostetler, for contributing to this piece.