In an order issued Wednesday, a federal appeals court in Chicago struck a blow to voting rights advocates, staying a trial court order that would have allowed residents to vote without complying with the state’s photo identification requirement.
The trial court order, issued by District Court Judge Lynn Adelman last month, did not strike the law outright, but instead carved out an exception to it. It would have permitted voters who are unable to obtain an ID to sign an affidavit testifying to that inability and receive a ballot to vote.
A three-judge panel of the Seventh Circuit Court of Appeals, including one judge, Diane Sykes, whom Donald Trump named as a potential U.S. Supreme Court appointee, pointed out that the exception was overly broad and “likely to be reversed on appeal.”
In April of this year, the same three-judge panel issued a ruling in the case that entitled anyone eligible to vote in Wisconsin, but who could not obtain a qualifying photo ID with reasonable effort, to an accommodation that would permit that voter to cast a ballot.
But on Wednesday, that panel criticized the injunction Adelman issued, noting that Adelman had failed to identify specific voters who would not be able to “obtain a qualifying photo ID with reasonable effort.” Instead, the panel argued, Adelman’s injunction would have permitted any registered voter to declare by affidavit that their reasonable effort would not produce a photo ID, even if that voter had never tried to secure a voter ID and even if a hypothetical effort to obtain the requisite ID would, by objective standards, be reasonable and would succeed.
The court of appeals pointed out that in upholding Indiana’s voter ID law in Crawford v. Marion County Election Board, the Supreme Court held in 2008 that “the inconvenience of making a trip to the [department of motor vehicles], gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.”
Because the district court did not attempt to define a substantial obstacle to voting, versus a particular voter’s unwillingness to make the sort of reasonable effort that the Supreme Court already held in Crawford that a state can require, the court of appeals said the injunction is likely to be reversed on appeal.
The order marks a loss for voting rights advocates, who had recently seen victories in Texas, North Carolina, and North Dakota, where federal courts had weakened or entirely tossed out voter ID laws.
Like Republicans in those states, conservatives in Wisconsin, including former Republican Party presidential candidate Gov. Scott Walker, have argued that voter ID laws are necessary to prevent voter fraud, even though voter fraud has been found to be almost nonexistent in other Republican-led investigations.
It is unclear whether lawyers challenging the law will ask the Seventh Circuit for a rehearing en banc (before the full court) or will immediately petition the Supreme Court for review. Reports that North Carolina Gov. Pat McCrory will ask the Supreme Court to weigh in on that state’s voter ID law, however, make it increasingly likely that the Court will weigh in as soon as the next term.