Voting Rights – Absentee & In-Person Voting – One Location Rule

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7^th Circuit Court of Appeals

Case Name: Justin Luft, et al., v. Tony Evers, Governor of Wisconsin, et al.,

Case No.: 16-3003; 16-3052

Officials: EASTERBROOK, KANNE, and SYKES, Circuit Judges.

Focus: Voting Rights – Absentee & In-Person Voting – One Location Rule

Change is a constant in Wisconsin’s rules for holding elections. Two suits, which we have consolidated for decision on appeal, present challenges to more than a dozen provisions that have been enacted or amended since 2011. Although we have tried to treat similar legal questions together and otherwise simplify the exposition, a brief introduction may help the reader.

Wisconsin used to rely on special registration deputies, who registered voters at places such as high schools. Municipalities could require landlords to distribute registration forms to new tenants. The state replaced these mechanisms with an electronic registration system. 2011 Wis. Acts 23, 240; 2013 Wis. Act 76; 2015 Wis. Act 261. Persons who want to register now must send proof of residence in either electronic or hard-copy format. 2013 Wis. Act 182, as elaborated in a ruling by the Government Accountability Board. (The Board has since been replaced by the Wisconsin Elections Commission, whose members are defendants.) Students who want to prove residence using an educational institution’s dormitory list may do so only if the list contains citizenship information. 2011 Wis. Act 23. And to vote for an office other than President or Vice President, voters must have been residents for at least 28 days (instead of 10 days, as before). Ibid.

Voters may cast absentee ballots. A ballot may be picked up in person, or the state will mail one, but email and fax can be used to obtain a ballot in only a few circumstances. 2011 Wis. Act 75. Wisconsin will reject or return an absentee ballot for spoilage, damage, or defective certification. 2011 Wis. Act 227. Such irregularities are visible without opening the ballot; thus they may be remedied before officials feed the ballots through counting machines. Wisconsin also has a variant of early voting: voters may cast their absentee ballots in person. The number of days, and hours per day, allowed for this procedure have fluctuated. See 2011 Wis. Act 23; 2013 Wis. Act 146. Currently the state allows in-person absentee voting (which is to say, early voting) from 14 days before the election through the Sunday preceding it, without any restriction on the number of hours per day that a municipality may choose to keep its offices open. 2017 Wis. Act 369 §1K. Municipalities may offer in-person absentee voting at multiple locations. Id. at §1JS.

At the polls, voting a straight ticket is no longer an option. 2011 Wis. Act 23. Observers must remain between three and eight feet from the places where voters announce their presence and register to vote. 2013 Wis. Act 177. Photographic identification is necessary for in-person voting. 2011 Wis. Act 23. Students may use college-issued credentials, but only before an ID’s expiration date. Wis. Stat. §5.02(6m)(f). People who lack the documents required to receive a photo ID may petition the state for assistance and a temporary receipt. 2017 Wis. Act 369 §§ 91–95.  Because the right to vote is personal, the state must accommodate voters who cannot obtain qualifying photo IDs with reasonable effort.

On remand, one district judge ordered Wisconsin to implement an “affidavit option” that excuses the requirement for photo ID when any voter states that obtaining one requires too much effort. 196 F. Supp. 3d 893 (E.D. Wis. 2016). That injunction was promptly stayed, 2016 U.S. App. LEXIS 14917 (7th Cir. Aug. 10, 2016), and the court declined to hear the dispute en banc, though we issued an opinion holding the state to certain representations it made about enforcement. Frank v. Walker, 835 F.3d 649 (7th Cir. 2016) (en banc) (Frank III). Around the same time a different district court decided that many of Wisconsin’s other electoral changes violate either the Constitution or the Voting Rights Act. One Wisconsin Institute, Inc. v. Thomsen, 198 F. Supp. 3d 896 (W.D. Wis. 2016). Everyone has appealed from almost every aspect of both district courts’ decisions, and we consolidated the appeals.

This is complex litigation, and to keep this opinion manageable we have omitted some lines of argument and abbreviated the treatment of others. A few contentions pursued in the district court have been dropped on appeal. We have considered all that remain, and we agree with the district courts’ handling of any issues that we have not mentioned. We affirm in part, reverse in part, and vacate in part, the judgments of the Western District. We reverse the district court’s finding that the adjustments to the number of days and hours for in-person absentee voting, the state’s durational residence requirement, and the prohibition on sending absentee ballots by email or fax violate the Constitution, the Voting Rights Act, or both. We vacate the district court’s orders related to the one-location rule and the ID petition process and remand both, the former with instructions to dismiss as moot and the latter for further proceedings. We affirm the district court’s judgment that Wisconsin’s studentID provision is invalid and its judgment concerning citizenship on educational institution’s dorm lists, though on alternate grounds for each. We otherwise affirm the district court’s judgment. We reverse the Eastern District’s injunction requiring Wisconsin to implement an affidavit option.

We suggest that all of these cases be assigned on remand to a single judge. The Chief Judge of the Seventh Circuit has designated the judges of each district to sit in the other. Using that cross-designation to place all of this litigation before a single judge will eliminate the sort of inconsistent treatment that has unfortunately occurred in the photo-ID parts of the multiple suits.

Affirmed in part. Reversed in part. Vacated in part.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.