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ACLU Seeks Emergency En Banc Rehearing of Wis. Voter ID Stay

By William Peacock, Esq. | Last updated on

On Friday, the Seventh Circuit heard oral arguments in Frank v. Walker and seemed unimpressed by arguments against Wisconsin's voter ID law. In fact, the judges were so unimpressed that the panel issued an order, mere hours later, granting a stay pending appeal (allowing the voter ID requirements to go into effect mere weeks before November's elections).

Now, the ACLU is seeking an expedited en banc rehearing, hoping that arguments about the impossibility of instituting a voter ID requirement at the last minute without disenfranchising thousands of voters will sway the full court.

Last-Minute Change to the Law Will Lead to Chaos: ACLU

In its brief requesting an en banc rehearing of the panel's stay order, the ACLU argues that the order "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," the ACLU argues. "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."

The brief repeatedly references Purcell v. Gonzalez, the Supreme Court's 2006 Arizona voter ID case, where the Court cautioned against last-minute changes to election laws. Indeed, the Court reversed a Ninth Circuit order blocking a voter ID requirement at the last minute -- the logic would seem to be controlling here, though curiously, the Seventh Circuit didn't address that precedent.

"Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls," the Supreme Court held. "As an election draws closer, that risk will increase."

All About the Numbers

Here are a few numbers from the ACLU brief, which are illustrative of the "electoral chaos" argument:

  • Some 300,000 voters do not have a required form of ID, per the district court;
  • The November 4 election is less than seven weeks away;
  • Wisconsin's voter ID law was designed to have an 16-month rollout before a general election; and
  • Wisconsin would have to issue 6,000 IDs per day to make all voters eligible.

Bonus fun fact: Absentee ballots that have already cast will have to be supplemented by a mailed-in copy of the voter's ID, reports the Journal Sentinel. Hundreds of voters have already returned their ballots, while thousands of ballots (lacking voter ID instructions) are in voters' hands, but have not yet been received by the state.

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