Scholars See Strong Case Wisconsin Voter ID Law Will Be Halted Before Election Day

Reading Prof. Ned Foley's piece this morning on the Due Process Clause questions presented by the Court of Appeals for the Seventh Circuit's stay of Judge Lynn Adelman's April injunction (April 29, 2014) of Wisconsin's Photo Voter ID law, in Foley's text appeared a eureka moment.

The Seventh Circuit's panel's changing the rules on Sept. 12 after 1,000s of residents had already cast their absentee ballots raises "severe due process claims," Foley said this afternoon reached by phone.

Writes Foley in his article: "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."

Here's a section of Foley's piece (brought to wide attention by Rick Hasen) that brings to the fore Due Process Clause concerns; writes Foley:

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 (by Judge Adelman)) 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 Emergency petition filed this morning to the U.S. Supreme Court did not specifically, to Foley's eye, contain a "citation to these Due Process precedents [Foley mentioned] in the Wisconsin emergency stay application, or an explicit reference to Due Process or the Constitution."

But in Emergency petitions, or "applications" (see A Reporter's Guide to Applications Pending Before the Supreme Court of the United States), Foley said, there is much "flexibility" the U.S. Supreme Court justices have "especially in an emergency petition."

Moreover, said Foley, "the court could research on its own" federal precedents that would bring to the attention of the justice(s) Due Process Clause rights retained by litigants. This is the Supreme Court after all.

Justice Elena Kagan, the justice assigned to the Seventh Circuit, may act on her own; or bring the application to the full Court for consideration, unlikely since Wisconsin's Election Day is some 30 days away on November 4.

Prof. Foley would not speculate but added among the possible outcomes are that Justice Kagan could partially vacate the stay, or vacate the stay entirely bringing our election back to the status quo before the Seventh Circuit's infamous Sept. 12 ruling, a ruling with opinions that have been described as "disingenuous" by Rick Hasen, a respected election law expert.

This afternoon, Justice Kagan ordered Wisconsin represented by Attorney General J.B. Van Hollen to respond to the Emergency application by October 7, 5:00 pm. That's 28 days before Election Day.

Here is the U.S. Supreme Court docket for the application.

Concludes Foley in his piece:

The affected Wisconsin absentee voters cast their ballots with one set of rules in force at the time. These voters had a reasonable expectation that their ballots would count as cast if they complied with those rules then in force.  To change the rules for counting ballots after they have been cast seems to be one of the most dangerous practices in the administration of an electoral democracy—which is precisely why such a rule-change has been held to violate Due Process.

But an even stronger reason to vacate the stay granted by the Seventh Circuit is that this stay, given the specific facts applicable to the absentee voters, would itself violate the Due Process principle articulated in Griffin v. Burns (570 F.2d 1065 (1st Cir. 1978)) and similar cases.

Writes Rick Hasen today: "C’mon folks. This should be a no brainer. You don’t impose new requirements in the weeks before an election without adequate preparation which runs the serious risk of disenfranchising voters. If the Supreme Court doesn’t recognize that, we are in even worse shape than I thought."

The consolidated cases, (Frank v. Walker, and League of United Latin American Citizens of Wisconsin v. Deininger) have not been heard on their merits in federal appellate court, but Justice Kagan's vacating the stay would preserve the votes of potentially 100,000s of Wisconsin voters this November.

After that, litigation would proceed through the federal court system is an orderly and one hopes not a disingenuous manner.