7th Cir. Explains Wisconsin Voter ID Decision

CHICAGO (CN) - Voting rights proponents suffered a close defeat Tuesday as half of the 7th Circuit explained why it upheld Wisconsin's voter ID law, while the other half blasted the decision as blatantly disenfranchising 300,000 mostly minority voters.

Because of the 5-5 split at the 7th Circuit, the federal appeals court confirmed the decision.

The split was ideological. President George W. Bush appointees Diane Sykes and John Tinder joined Reagan appointees Frank Easterbrook, Joel Flaum and Michael Kanne to uphold the law.

Opposed were Chief Judge Diane Wood, a liberal anchor of the court, Obama-appointee David Hamilton and Clinton appointee Ann Claire Williams joined Wood, as did frequent iconoclast Richard Posner, a Reagan appointee, and Judge Ilana Rovner, appointed by the elder Bush.

The Wisconsin law has bounced between courts all year.

The 7th Circuit on Sept. 11 overturned a federal judge's finding that Wisconsin had violated the Constitution and the Voting Rights Act.

Opponents of the law, including the American Civil Liberties Union, the AFL-CIO, churches and Latino advocacy groups, asked for reconsideration. In response , Wisconsin avoided the issues of race and class that dominated both oral arguments and the district court's opinion. On Friday, the 7th Circuit declined to rehear the suit en banc, and on Tuesday it issued its opinion.

"Requiring would-be voters to spend time to obtain photographic identification does not violate the Constitution," Easterbrook wrote.

His opinion avoids race and class as well: "The number of registered voters without a qualifying photo ID (which the judge estimated at 300,000) appears to reflect how many persons have not taken the necessary time" to obtain it, "rather than a number of persons who have been disfranchised."

Easterbrook brushed aside concerns of voter confusion and unfairness ahead of the November elections, saying the law "was enacted in May 2011. Voters in Wisconsin who did not already have a document that Wisconsin accepts have had more than three years to get one."

Easterbrook added: "It would be extraordinary for a federal court to tell state officials that they are forbidden to implement a state law, just because federal judges predict that they will turn out to be wrong in thinking that 7+ weeks, plus work done between May 2011 and the district court's injunction in April 2014, is enough."

For the other half of the court, Judge Ann Claire Williams issued a strongly worded dissent: "It simply cannot be the answer to say that 90 percent of registered voters can still vote. To say that is to accept the disenfranchisement of 10 percent of a state's registered voters; for the state to take this position is shocking."

Blasting the state's claim that "the voter ID law will have little impact on the vast majority of voters," Judge Williams added: "The right to vote is not the province of just the majority. It is not just held by those who have cars and so already have driver's licenses and by those who travel and so already have passports."

Williams emphasized that these 300,000 people are "registered voters - registered voters, not just persons eligible to vote." She continued: "To put this number in context, the 2010 governor's race in Wisconsin was decided by 124,638 votes and the election for United States Senator by 105,041 votes."

The dissent also points out that waiting to implement the law would not harm the state: "The state has conducted hundreds of elections without a voter identification requirement. It had been preparing for months to do the same again."

It goes on: "It is simply impossible - as a matter of common sense and of logistics - that hundreds of thousands of Wisconsin's voters will both learn about the need for photo identification and obtain the requisite identification in the next 36 days."

Unlike Easterbrook, Williams did not avoid the issue of race. Contrasting the district court's judgment with those in past voter ID cases, Williams wrote that "the experienced judge concluded that Wisconsin's voter identification law had a disproportionate impact on African Americans and Latinos, was unconstitutional, and violated the Voting Rights Act."

The logistical nightmare goes further, as the dissent says that "thousands of absentee ballots that were mailed to voters before the panel's order" will now "not count when returned in the manner their instructions direct, for they do not comply with the Wisconsin voter identification law."

The battle is not over, as this order simply vacates the district court's injunction against the law, in light of what Easterbrook called Wisconsin's "strong prospect of success on appeal."

More proceedings look likely after the November elections.

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