By Edward B. Foley - Moritz College of Law; Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law; Director, Election Law @ Moritz
There is one more crucial point about the Wisconsin case that has not yet been fully developed. As a factual matter, the emergency stay application observes that absentee ballots have been already been cast based on a rule in place (per the April injunction) that the new voter ID requirement did not apply. The Seventh Circuit’s reinstatement of the ID requirement now makes those absentee ballots void and uncountable unless the voters come forth with the required ID—a requirement not in effect at the time when they cast those ballots. Indeed, the instructions that these absentee voters received with their ballot did not alert them to the need to provide the required ID. The stay application says that to disenfranchise these absentee voters “after the fact” based on a change in the rules since they cast those ballots would be “unconscionable” (page 14)—unconscionability being a potent “equitable” factor.
But it would be more than unconscionable. It would be unconstitutional. The Due Process Clause of the Fourteenth Amendment has been properly interpreted to bar changes in the rules for counting ballots after they have been cast. The leading case, from the First Circuit, is Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978). It, too, involved absentee ballots. Rhode Island election officials had made absentee ballots available to voters. After the ballots had been cast, the state supreme court ruled that these voters should not have received those ballots. (It was a primary election, and the state court said absentee ballots were available only in general elections.) Too late, said the First Circuit. It violates Due Process to give voters ballots telling them they will count if cast and then, after they are cast, say “surprise” they won’t count after all.
H/T to Rick Hasen