Update: Emergency petition can be found here.
The ACLU has filed an Emergency Petition for a Rehearing En Banc (before the full Court of Appeals for the Seventh Circuit) Tuesday in an effort to halt the Wisconsin Voter ID law and save the voting rights of 10,000s of Wisconsin citizens.
This legal case is a partisan issue. The Republican Party of Wisconsin remain hostile to voting rights of all eligible Wisconsin citizens while Democratic Party takes the position of defending the voting rights of all eligible Wisconsin citizens.
Make no mistake, Scott Walker and J.B. Van Hollen are attempting to steal this election by disenfranchising Wisconsin voters.
The Emergency Petition notes last Friday panel's order "involves a question of exceptional importance under Fed. R. App. P. 35(b)(1)(B) because it imposes a radical, last-minute change to procedures for conducting an election that is already underway. The risk of disenfranchisement from imposing such a last-minute disruption far outweighs the non-existent harm to the state of maintaining the status quo and not requiring photo ID for one more election. Supreme Court precedent and other Circuits uniformly caution against such eleventh-hour changes to the election laws, even where those courts have approved such changes for future elections. ..."
... It is not only unreasonable, but also mathematically, logically, and physically impossible that by November 4, hundreds of thousands of voters will learn about the need for ID, especially given the total Case: 14-2058 Document: 65-1 Filed: 09/16/2014 Pages: 623 suspension of public information about the law for two and one-half years, collect multiple required documents, get to a DMV office, and obtain the ID suddenly required by staying the District Court‟s injunction last Friday afternoon. Doing so would require Wisconsin to issue some 6,000 photo IDs per day between now and the election. ..."
... The Petition notes that a "fundamental change in election procedures just before an election will sow confusion among voters and elections officials. ..."
... The panel's decision to allow Act 23 to go into effect at this late date virtually guarantees substantial chaos in election administration and resulting voter confusion and disenfranchisement in the November elections. This will be contrary to the public interest, and will undermine voter confidence."
The EMERGENCY PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC OF PANEL ORDER GRANTING MOTION TO STAY statement and argument are below [footnotes, citations and other characters such as page numbers are included):
STATEMENT REQUIRED BY FED R. APP. P. 35(b)(1) Pursuant to Fed. R. App. P. 2, 35(b), 40 Plaintiffs-Appellees file this Emergency Petition for Rehearing En Banc, which should be granted for two reasons:
First, the panel decision involves a question of exceptional importance under Fed. R. App. P. 35(b)(1)(B) because it imposes a radical, last-minute change to procedures for conducting an election that is already underway. The risk of disenfranchisement from imposing such a last-minute disruption far outweighs the non-existent harm to the state of maintaining the status quo and not requiring photo ID for one more election. Supreme Court precedent and other Circuits uniformly caution against such eleventh-hour changes to the election laws, even where those courts have approved such changes for future elections. See Purcell v. Gonzalez, 549 U.S. 1 (2006).
Second, the panel‟s extraordinary decision to grant a stay pending appeal – which altered rather than maintained the status quo – ignored the four-factor test for such relief set forth by the United States Supreme Court in Nken v. Holder, 556 U.S. 418, 434 (2009), and the Court‟s admonition against last-minute reversals of lower court election law rulings in Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006).
Specifically, the panel decision failed to consider that issuance of the stay and the consequent slapdash implementation of a complex law – which was designed to have a rollout period of 8 months before a primary and 16 months before a general election – “will substantially injure” the rights of voters without ID, and that “the Case: 14-2058 Document: 65-1 Filed: 09/16/2014 Pages: 622 public interest lies” strongly against fundamentally changing the rules of an election on the eve of the election, particularly where absentee voting is already underway. In addition, the panel decision failed to consider seriously one of the “most critical” factors. Defendants will not be “irreparably injured absent a stay,” Nken, 556 U.S. at 434, if the election proceeds without a photo ID requirement, as has been the case in all but one election in Wisconsin‟s history.
STATEMENT OF THE CASE
Wisconsin adopted Act 23 in the spring of 2011 to require voters to present one of a limited number of forms of photo ID to vote in-person or, with very limited exceptions, by absentee ballot. Act 23 was in effect for only one low-turnout primary in February 2012, after which it was enjoined by state and federal courts. In light of the injunctions, Wisconsin suspended the photo ID requirement itself and all implementation of the Act, including training of the 1,852 municipal clerks who run Wisconsin elections and tens of thousands of poll workers, and all public information and educational outreach to voters for two and a half years. In this case, the district court found that approximately 300,000 voters do not have the most common form of ID that would now be needed to vote on November 4 (exactly 7 weeks from today), which is an unexpired driver‟s license or state-issued photo ID. See Frank v. Walker, No. 11–CV–01128, 12–CV–00185, 2014 WL 1775432, at *11 (E.D. Wis. Apr. 29, 2014). It is not only unreasonable, but also mathematically, logically, and physically impossible that by November 4, hundreds of thousands of voters will learn about the need for ID, especially given the total Case: 14-2058 Document: 65-1 Filed: 09/16/2014 Pages: 623 suspension of public information about the law for two and one-half years, collect multiple required documents, get to a DMV office, and obtain the ID suddenly required by staying the District Court‟s injunction last Friday afternoon. Doing so would require Wisconsin to issue some 6,000 photo IDs per day between now and the election.
Nevertheless, on September 12, 2014, a panel of this Court granted Defendants‟ motion for a stay of the district court‟s injunction forbidding implementation of the photo ID requirement. By granting a stay on the eve of this year‟s elections, with thousands of absentee ballots already in the mail, the panel decision forces a radical change in election procedures with no time for preparation, training, or outreach. Such a radical change is improper when a state‟s “election machinery is already in progress.” Reynolds v. Sims, 377 U.S. 533, 585 (1964). Moreover, the panel‟s decision referenced submissions by Defendants tendered several hours after oral argument, see ECF 61, concerning the state‟s new policies (apparently adopted a day earlier) responding to the Wisconsin State Supreme Court‟s decision in Milwaukee Branch of NAACP v. Walker, 2014 WI 98, ¶¶ 62-63 (July 31, 2014) (NAACP). That case, recognizing the “severe burdens” imposed by Act 23, required the Wisconsin Department of Motor Vehicles (DMV) to make free IDs available to those who would otherwise have to pay for documents like birth certificates to get ID. 2014 WI 98, ¶ 70. After six weeks, with no official action, counsel for Defendants announced for the first time during oral argument on September 12, 2014, that DMV had issued new emergency rules that purport to Case: 14-2058 Document: 65-1 Filed: 09/16/2014 Pages: 624 address the identified deficiencies. Before and during argument, Plaintiffs had no opportunity to view these rules, much less question or dispute them. Defendants filed them after oral argument concluded. ECF 61. Soon thereafter, and without affording Plaintiffs any opportunity to respond, the panel issued the stay, reasoning that NAACP and the state‟s new policies “reduce[] the likelihood of irreparable injury” to plaintiffs and “change the balance of equities.” ECF 64 at 2. The panel‟s decision to allow immediate implementation of Act 23 this close to an election will sow chaos at the polls and undermine election integrity and public confidence in the November 4 election. The decision raises questions of voting rights and election administration that are of exceptional public importance. Fed. R. App. P. 35(a)(2). The risk of disenfranchisement and electoral chaos from granting a stay far outweighs the abstract harm to the state in delaying photo ID for one more election. Plaintiffs therefore request that this Court reconsider the panel‟s decision or review the panel‟s decision en banc on an expedited basis and vacate the stay order, which will simply preserve the status quo while the panel reviews the merits of the appeal.1 See Fed. R. App. P. 35(a) (providing for en banc review of an appeal “or other proceeding”); Flower Cab Co. v. Petitte, 685 F.2d 192, 195 (7th Cir. 1982) (Court of Appeals has power to grant rehearing or rehearing en 1 Plaintiffs request that consideration of this petition be expedited pursuant Fed. R. App. P. 2. Time is of the essence to avoid a rush to implement Act 23 without adequate training or preparation, which is already causing confusion among voters, elections officials, clerks and poll workers that will inevitably interfere with election administration and lead to the unnecessary and unlawful disfranchisement of many voters. See 16A Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction 3d § 3948, at 25 (1999); 1967 Advisory Committee Note to Fed. R. App. P. 2; Groendyke Transport, Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Case: 14-2058 Document: 65-1 Filed: 09/16/2014 Pages: 625 banc of a stay granted by a panel of the Court).
ARGUMENT
As the Supreme Court explained in Nken, courts must consider four factors when deciding whether a stay is warranted: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. 556 U.S. at 434 (citations omitted). “The first two factors of the traditional standard are the most critical.” Id. The “party requesting a stay bears the burden of showing that the circumstances justify” a stay. Id. Here, by failing to balance the dramatic harm to the public and to voters who currently lack ID in changing the rules of an election at the eleventh-hour against the lack of any irreparable harm to the state in waiting to implement photo ID for one election, the panel‟s decision fails to heed the proper standard articulated in Nken, and should be overturned.
I. FUNDAMENTALLY CHANGING THE RULES JUST BEFORE AN ELECTION WILL SUBSTANTIALLY HARM THIRD PARTIES AND THE PUBLIC INTEREST WITH NO APPRECIABLE BENEFIT TO THE STATE In issuing the stay, the panel made no finding as to the effect of its decision on other parties and the public interest. This omission is particularly glaring because this factor points decisively against a stay. A. No court has permitted a voter ID law to go into effect this close to an election based on last-minute changes to the law. Last-minute orders changing election procedures – particularly from an Case: 14-2058 Document: 65-1 Filed: 09/16/2014 Pages: 626 appellate court reversing a district court – are strongly disfavored, because “[c]ourt orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.” Purcell, 549 U.S. at 4-5. No court has permitted a voter ID law to take effect based on purported ameliorative changes adopted this close to an election. For examplehttp://www.jsonline.com/news/appeals-panel- questions-why-voter-id-shouldnt-be-in-place-nov-4-b99350157z1-274904111.html, The record was clear before the stay that this was likely to be the case. See ECF 53 (Plaintiffs-Appellees‟ Opposition to Defendants-Appellants' Expedited Motion to Stay Permanent Injunction Pending Appeal and ECF 56-2 at 3 (Declaration of Kevin J. Kennedy). 4 See Dee J. Hall, Absentee ballots already cast will need photo ID, elections official says, NEWS REPUBLIC (Sept. 16, 2014), http://www.wiscnews.com/baraboonewsrepublic/news/state-and- regional/article_3de3068c-18f3-5887-bb10-3648b28d6eab.html; Patrick Marley, Voters who returned absentee ballots must send ID copies, J. SENTINEL (Sept. 16, 2014), http://www.jsonline.com/news/statepolitics/ballot-fight-is-brewing-as-state- scrambled-on-voter-id-b99352576z1-275311521.html. Case: 14-2058 Document: 65-1 Filed: 09/16/2014 Pages: 629 way, printing the ballots. Absentee ballots have indeed already been sent . . . .”); Fishman v. Schaeffer, 429 U.S. 1325, 1330 (1976) (Marshall, Circuit Justice) (denying “extraordinary relief” where absentee ballots were being printed and distributed).5 Even Defendants‟ trial witness municipal clerk Diane Hermann-Brown admitted the stay “complicates the election for clerks because it comes as voters are already requesting and in some cases receiving absentee ballots.”6 C. Voters without ID will be substantially harmed by a stay, given their lack of information and inability to rapidly obtain ID. On the eve of an election, “the Court of Appeals was required to weigh . . . considerations specific to election cases,” and to “give deference to the discretion of the District Court.” Purcell, 549 US at 4. Failure to do so constitutes error. Id. Yet the panel failed to consider the “substantial harm” to 300,000 registered voters that the district court found lack ID,7 many of whom do not use ID in their daily lives or who have a form of ID, like Veterans‟ Administration ID, that is not acceptable for voting.8 Frank 2014 WL 1775432, at 2. These voters have no reason to know they 5 See also Nader v. Blackwell, 230 F.3d 833, 834-35 (6th Cir. 2000) (inappropriate to change party-identification procedures after absentee ballots already printed and mailed); Perry v. Judd, 471 Fed. Appx. 219, 2012 WL 120076, at *8 (4th Cir. Jan. 17, 2012) (change in rules after absentee ballots already printed would be improper); cf., Williams, 393 U.S. at 35 (last minute ballot change could interfere with rights of absentee voters). 6 Jason Stein and Patrick Marley, Absentee ballot mailings halted in push to restart voter ID law, J. SENTINEL, http://www.jsonline.com/news/statepolitics/clerks- elections-officials-scramble-to-reinstate-voter-id-law-b99351689z1-275146501.html 7 Many voters who have obtained ID since 2011 were not new voters without ID, but voters renewing ID or replacing lost or stolen ID cards. Frank v. Walker, 11-CV- 01128, 2014 WL 1775432 at 38 (E.D. Wis. Apr. 29, 2014). 8 The stay will also impose substantial harm on student voters. Regular student ID Case: 14-2058 Document: 65-1 Filed: 09/16/2014 Pages: 6210 would even need ID to vote less than two months from now, because the Government Accountability Board (GAB), which administers elections, suspended all public information and outreach about the law in March 2012. NAACP, 2014 WI 98 at ¶¶ 15-16. Cf. South Carolina, 898 F. Supp. 2d at 49-50 (insufficient time for voters to learn requirements and obtain ID); U.S. Student Ass'n v. Land, 546 F.3d 373, 387-8 (6th Cir. 2008) (voter confusion that would result from stay constitutes harm to others and to public interest). But Act 23 will offer no fail-safe affidavit option for voters without ID, rendering this law materially different from Indiana‟s. Contrast, Crawford v. Marion Cnty. Elections Bd., 553 U.S. 181, 185-6 (2008). Although Act 23 required public information and voter assistance, id. at §§ 95, 144(1), GAB had no intention of even developing a new plan for public information and outreach until 2015, much less a plan that can be implemented to reach voters in less than two months to ensure that these voters understand Act 23, how to get ID, and the new procedures for obtaining it.9 Defendants‟ emergency rules will not even be published until September 17.10 Other than press releases, cards are not acceptable for voting in Wisconsin and colleges‟ plans to produce alternative voting IDs that expired no more than two years after issuance were reportedly put on hold after the injunctions. Jason Stein and Patrick Marley, Absentee ballot mailings halted in push to restart voter ID law, J. SENTINEL, http://www.jsonline.com/news/statepolitics/clerks-elections-officials-scramble-to- reinstate-voter-id-law-b99351689z1-275146501.html 9 See, http://gab.wi.gov/sites/default/files/event/74/09_04_14_gab_complete_open_session_a genda_material_20954.pdf (at 76; p. 79 of PDF) (stating that GAB will be in a better position to develop plan for effective use of state funds to meet voter ID law objectives after Jan. 1, 2015). 10 ECF 61-1, third link at p. 3 (Letter to Legislative Reference Bureau.) Case: 14-2058 Document: 65-1 Filed: 09/16/2014 Pages: 6211 there has been no apparent public information or outreach, and the state “has no money available” for further public outreach.11 Furthermore, it does not appear that DMV staff have been fully and uniformly trained to implement the new procedures.12 DMV has only 92 offices statewide, (Frank, 2014 WL 1775432 at 15); and in 48 counties representing over a quarter of the state‟s population, those offices are open only two days a week for a total of ten hours.13 DMV is simply incapable of processing a substantial number of applications from the 300,000 registered voters without ID. Nor are the new rules a panacea. All voters still have to obtain and produce proof of identity and residency and travel to DMV.14 Voters who do not have birth certificates in their possession must complete a petition form with information relevant to the date and circumstances of birth. This initiates a two-step verification procedure. First, the DMV shall provide the birth information to the department of health services and attempt to obtain verification of the 11 See Marley, supra note 4. 12 A “DMV hotline worker told us they're still getting up to speed with the new procedure and that it just came down yesterday, so clearly, the agency is still working through this.” “New voter ID law rules cause confusion,” CBS58 News (Sept. 13, 2014, updated Sept. 14, 2014), viewed 9/14/14 at http://www.cbs58.com/news/local-news/New-voter-ID-law.html ) 13 Todd Milewski, Clock is ticking to get a Wisconsin voter ID before November election, faster in some areas, THE CAP TIMES, http://host.madison.com/news/local/writers/todd-milewski/clock-is-ticking-to-get-a- wisconsin-voter-id-before/article_d1346760-3cf1-11e4-9560-df1946b2278e.html 14 See, e.g., Ann-Elise Henzl, Agencies, Advocates Await Word on How to Help Wisconsin Voters Obtain Photo IDs, MILWAUKEE PUBLIC RADIO, http://wuwm.com/post/agencies-advocates-await-word-how-help-wisconsin-voters- obtain-photo-ids. Case: 14-2058 Document: 65-1 Filed: 09/16/2014 Pages: 6212 information. ECF 61-2 at 8 (Sec. 11 (creating Wis. Adm. Code Trans. 102.15(5m)(2)1.) DMV warns Wisconsin-born voters that the process may take seven business days to complete. Attachment A. In addition, efforts to implement matching procedures involving different database formats routinely experience severe and unexpected problems and delays.15 If that does not verify required information, then DMV must notify the applicant that the applicant needs to provide other documents, and a DMV administrator or his delegate then has discretion to accept alternatives such as hospital records, baptismal certificates, or other such records. Id. at 8-9 (creating Wis. Adm. Code Trans. 102.15(5m)(2)2.) ECF 61-2 at 8 (Sec. 11 (creating Wis. Adm. Code Trans. 102.15(5m)(2)1.) Moreover, DMV currently has an agreement to verify birth information only with Wisconsin’s vital records office.16 Even though Election Day is now only seven weeks away, GAB has indicated that the verification process could take eight weeks for voters born in other states.17 Indeed, no formal verification system has been set up for these voters. The state represented at oral argument that this process is ongoing, but the state has reportedly done no more than notify other states of its rules.18 DMV itself is telling voters that “for voters born in another 15 See, e.g, Coverage in jeopardy for 40% of HealthCare.gov enrollees, http://www.consumerreports.org/cro/news/2014/06/40-percent-of-healthcare-gov- accounts-in-jeopardy/index.htm (describing database matching problems in implementation of HealthCare.gov). 16 (WI Dept. of Trans. http://www.dot.state.wi.us/news/releases/031- nr20140910.html) 17 See Hall, supra note 4. 18 Ann-Elise Henzl, Voter ID: No Birth Certificate Needed to Apply for Wisconsin ID Case: 14-2058 Document: 65-1 Filed: 09/16/2014 Pages: 6213 state or country, the length of the process will depend upon how long it takes the other government agency to respond to Wisconsin‟s request for information.” Attachment A. Thus, thousands of Wisconsin voters – especially those born elsewhere – are unlikely to benefit from the new procedures in time to vote. Almost 47% of eligible Milwaukee voters without ID were born outside Wisconsin. (A.187.) This population is disproportionately comprised of Blacks and Latinos, who are more likely than whites to lack both ID and a document needed to get ID, such as birth certificates, Frank 2014 WL 1775432 at 29-30.19 The fate of voters whose birth records are not verified through this matching process will rest in the hands of front-line DMV employees, who will be charged with deciding when and whether alternative documents are acceptable, a situation that has led to arbitrary and disparate treatment in the past and has not gotten ID to voters. See Frank, 2014 WL 1775432 at 16 n. 18 and n. 20.ECF 61-2 at 8-9 (Wis. Adm. Code Trans. 102.15(5m)(2)2). Cf. Louisiana v. United States, 380 U.S. 145, 153 (1965). D. A fundamental change in election procedures just before an election will sow confusion among voters and elections officials. The panel‟s decision to allow Act 23 to go into effect at this late date virtually
at DMV Office, http://wuwm.com/post/voter-id-no-birth-certificate-needed-apply- wisconsin-id-dmv-office. 19 See also, Frank 11-CV-01128, 2014 WL 1775432 at 30 n. 37 (“Many Latino voters who were born in Puerto Rico will have trouble obtaining their birth certificates because the Puerto Rican government annulled all birth certificates of individuals born there prior to 2010. . . . 16.7% of eligible Latino[ voters] in Milwaukee County were born in Puerto Rico and 38.4% of those born in Puerto Rico ha[ve] yet to obtain a new birth certificate.”) Case: 14-2058 Document: 65-1 Filed: 09/16/2014 Pages: 6214 guarantees substantial chaos in election administration and resulting voter confusion and disenfranchisement in the November elections. This will be contrary to the public interest, and will undermine voter confidence. The necessary steps to implement Act 23 – which originally contemplated an eight-month implementation period – cannot be completed in time for this fall‟s election cycle.20 See Fr. Ex. 635 at 74 (deposition testimony of former GAB Elections Division head Robinson) (“This is a new sweeping law with a lot of nuances, and for poll workers who do not do this as a matter of their daily jobs . . . the facts that should be known, the basic facts, in fact, are many times not known.”). The GAB will have to figure out how to retrain the 1,852 municipal clerks who run elections in Wisconsin, roughly one-fifth of all the clerks in charge of elections in the nation,21 as well as ensuring immediate retraining of tens of thousands of poll workers. This process is neither easy nor straightforward, see, e.g., Doc. 53-1 at 15, as Act 23 is extremely complex. Clerks and poll workers must learn exactly what forms of ID are acceptable (e.g., only some specialized college IDs, not regular student IDs) and what IDs are not (e.g., Veterans‟ Administration ID), which IDs are valid despite varying permissible expiration dates, and whether and to what extent the name, 20 Act 23‟s photo ID provisions were scheduled to have a “soft implementation” beginning on July 1, 2011, and to not take mandatory effect until the February 2012 low turnout primary. Id., § 144 (2); http://docs.legis.wisconsin.gov/2011/related/acts/23 ; Tr. 908. 21 See, e.g., Jason Stein and Larry Sandler, 1850 municipal clerks another complication, J. SENTINEL, http://www.jsonline.com/news/statepolitics/119373789.html These clerks also have a 20-25% annual turnover rate, Tr. 889-90, and thus many were never trained on voter ID. Case: 14-2058& Document: 65-1 Filed: 09/16/2014 Pages: 6215 photograph, signature, or address on the ID has to match voter registration data.22
II. ALLOWING THE SAME ELECTION PROCEDURES TO REMAIN IN PLACE FOR ONE MORE ELECTION DOES NOT RESULT IN IRREPARABLE HARM TO THE STATE
When weighed against such a substantial risk of election official confusion and disenfranchisement, the error of the panel‟s decision is all the more important because of its failure to consider “whether the applicant will be irreparably injured absent a stay.” Nken, 556 U.S. at 434. Other circuits have rejected stay motions when the government has not sustained its burden on this factor. See, e.g., Ohio State Conf. NAACP v. Husted, 2014 WL 4494938, (6th Cir. Sept. 12, 2014) (denying stay where “Defendants did not carry their burden to demonstrate that they will suffer more than a mere „possibility‟ of irreparable harm.”) Id.
CONCLUSION
It is not too late to avert this impending disaster. GAB Executive Director Kevin Kennedy has stated publicly that his agency would cease efforts to implement this law “if ordered to stop by a court order.”23 For the reasons set forth herein, this Court should so order. Plaintiffs request that this Court reconsider or reconsider en banc its Sept. 12, 2014 ruling and vacate the stay that was issued.
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