Oct. 8, 2014 – It is possible that the U.S. Supreme Court could halt implementation of Wisconsin’s photo identification (ID) law before the November election, despite a recent ruling by the U.S. Court of Appeals for the Seventh Circuit, which said the law was okay.
The law, 2011 Wisconsin Act 23, requires voters to show photo ID at the polls. Today, the law’s challengers filed an “Emergency Application to Stay Seventh Circuit Judgment Pending Disposition of a Petition for a Writ of Certiorari” with U.S. Supreme Court Justice Elena Kagan, who is assigned to receive Seventh Circuit applications.
This is the second emergency petition filed by those challenging photo ID, which includes a Wisconsin voter named Ruthelle Frank as the lead plaintiff.
The challengers also filed an emergency petition last week after the Seventh Circuit Appeals Court lifted an order that was blocking the law from taking effect. A three-judge panel, on Sept. 12, lifted a permanent injunction that was issued in April by Wisconsin Federal District Court Judge Lynn Adelman. Judge Adelman's permanent injunction stopped Wisconsin from enforcing the photo ID law.
But the three-judge appeals panel said the state’s probability of success on the merits was “sufficiently great,” and lifted Judge Adelman's permanent injunction. The plaintiffs' request to reconsider was effectively denied by virtue of a 5-5 vote of the full Seventh Circuit Appeals Court on Sept. 26, which later said the law should remain in place until the U.S. Supreme Court decides.
After this decision, the plaintiff challengers filed their first emergency request to the U.S. Supreme Court, asking the Court to halt enforcement of the voter ID law.
Yesterday, the Wisconsin Department of Justice, by Attorney General J.B. Van Hollen, filed a memo in opposition to this request. The challengers filed an immediate, same-day reply, and filed its second emergency request today in light of the Seventh Circuit’s latest decision on Monday.
On Monday, a three-judge panel for the Seventh Circuit Court of Appeals issued a decision on the merits, upholding the voter ID law. As a result, the photo ID challengers filed the new emergency petition, likely to address any argument that the first emergency petition was moot. The Wisconsin Department of Justice will likely respond to oppose.
According to a guide from the U.S. Supreme Court, the Circuit Justice (here, Justice Kagan) “may act on an application alone or refer it to the full court for consideration.” An applicant must normally satisfy four general criteria to be successful.
First, the applicant must show there is a “reasonable probability” that at least four justices will agree to review the case. The applicant must also show a “fair prospect” that a majority will reverse, the “irreparable harm” that may result if the stay is not granted, and the applicant or the public would be harmed more than respondent if the emergency application was not granted.
With the November elections around the corner, voting litigation isn’t limited to Wisconsin. The U.S. Court of Appeals for the Fourth Circuit recently struck provisions of a North Carolina law that eliminates same-day registration and voting out-of-precinct. An emergency petition is pending before the U.S. Supreme Court in that case also. [Update: Same-day registration and the casting of ballots out-of-precinct will not be allowed for the November election in North Carolina, the U.S. Supreme Court decided late on Oct. 8. Two justices dissented. The order remains in effect pending appeal.]
In late September, the U.S. Supreme Court issued an emergency order that prohibits early voting in Ohio. Justice Kagan, who also oversees Ohio as a Sixth Circuit state, referred the case to a full court, which voted 5-4 to prohibit early voting pending appeal.