Election Law

7th Circuit upholds voter ID in opinion that is 'vintage Judge Easterbrook': what will SCOTUS do?

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A federal appeals court decision on Monday upholding Wisconsin’s voter ID law came as no surprise.

The Chicago-based 7th U.S. Circuit Court of Appeals last month allowed the law to take effect as it considered a challenge. As a result, the opinion on Monday was expected, report the Associated Press, the Milwaukee Journal Sentinel and Reuters.

The panel opinion by Judge Frank Easterbrook said the Wisconsin requirement is similar to an Indiana voter ID law upheld by the U.S. Supreme Court in 2008. Easterbrook found no violation of the U.S. Constitution or the Voting Rights Act.

A lower court judge had found the Wisconsin law differed from Indiana’s law because: nearly 9 percent of Wisconsin voters lack a photo ID acceptable for voting, voter impersonation fraud in Wisconsin is so rare it doesn’t justify a significant burden on voters, and whites are more likely to have the required photo ID than minorities.

The 7th Circuit opinion (PDF), however, said the Wisconsin law does not pose a more substantial burden on the right to vote than the Indiana law. The appellate decision noted that, between the trial and the appellate arguments, the Wisconsin Supreme Court had directed state officials to issue photo IDs without requiring applicants to pay for any qualifying documents.

“If photo ID is available to people willing to scrounge up a birth certificate and stand in line at the office that issues drivers’ licenses, then all we know from the fact that a particular person lacks a photo ID is that he was unwilling to invest the necessary time,” Easterbrook wrote. For most voters without photo ID, the court said, it’s “a matter of choice rather than a state-created obstacle.”

University of California at Irvine law professor Rick Hasen criticized the opinion in a post at his Election Law Blog. “This is vintage Judge Easterbrook: crisp writing but heartless and dismissive,” Hasen says.

A request to stay the law is pending before the U.S. Supreme Court, filed last week by the American Civil Liberties Union and the Advancement Project.

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