Ruthelle Frank v. Scott Walker ( 2014 )

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In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14-‐‑2058 & 14-‐‑2059
RUTHELLE FRANK, et al.,
Plaintiffs-‐‑Appellees,
v.
SCOTT WALKER, Governor of Wisconsin, et al.,
Defendants-‐‑Appellants.
____________________
LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC) OF
WISCONSIN, et al.,
Plaintiffs-‐‑Appellees,
v.
DAVID G. DEININGER, Member, Government Accountability
Board, et al.,
Defendants-‐‑Appellants.
____________________
Appeals from the United States District Court
for the Eastern District of Wisconsin.
Nos. 11-‐‑CV-‐‑01128 & 12-‐‑CV-‐‑00185 — Lynn Adelman, Judge.
____________________
ARGUED SEPTEMBER 12, 2014 — DECIDED OCTOBER 6, 2014
____________________
2 Nos. 14-‐‑2058 & 14-‐‑2059
Before EASTERBROOK, SYKES, and TINDER, Circuit Judges.
EASTERBROOK, Circuit Judge. Since 2005 Indiana has re-‐‑
quired voters to present photographic identification at the
polls. The Supreme Court held that this statute is compatible
with the Constitution. Crawford v. Marion County Election
Board, 553 U.S. 181 (2008). In May 2011 Wisconsin enacted a
similar statute, 2011 Wis. Act 23. A district court held that
Act 23 is unconstitutional and enjoined its implementation.
Frank v. Walker, 2014 U.S. Dist. LEXIS 59344 (E.D. Wis. Apr.
29, 2014), stay denied, 2014 U.S. Dist. LEXIS 111811 (E.D. Wis.
Aug. 13, 2014). After receiving briefs and argument, we
stayed that injunction. Order issued Sept. 12, 2014; reconsid-‐‑
eration denied Sept. 26, 2014; opinions issued Sept. 30, 2014.
We now reverse the injunction, because the district court’s
findings do not justify an outcome different from Crawford.
The Justices observed that a commission chaired by for-‐‑
mer President Carter had recommended the use of photo ID
to verify a person’s entitlement to vote. Commission on Fed-‐‑
eral Election Reform, Building Confidence in U.S. Elections 18
(2002). The Court added that the Help America Vote Act of
2002 (HAVA) requires states to verify a person’s eligibility to
vote, using photo ID, portions of Social Security numbers, or
unique state-‐‑assigned identifiers. 52 U.S.C. §21083(a)(5)(A),
formerly 42 U.S.C. §15483(a)(5)(A). Many people register to
vote when they get drivers’ licenses (National Voter Regis-‐‑
tration Act of 1993, 52 U.S.C. §20504, formerly 42 U.S.C.
§1973gg–3), which links registration and photo ID from the
outset. The Justices concluded that both the prevention of
voter impersonation on election day and the preservation of
public confidence in the integrity of elections justify a photo
ID requirement, even though persons who do not already
Nos. 14-‐‑2058 & 14-‐‑2059 3
have government-‐‑issued photo IDs must spend time to ac-‐‑
quire necessary documents (such as birth certificates) and
stand in line at a public agency to get one. “For most voters
who need them, the inconvenience of making a trip to the
[department of motor vehicles], gathering the required doc-‐‑
uments, and posing for a photograph surely does not qualify
as a substantial burden on the right to vote, or even repre-‐‑
sent a significant increase over the usual burdens of voting.”
553 U.S. at 198. These observations hold for Wisconsin as
well as for Indiana.
Wisconsin’s law differs from Indiana’s, but not in ways
that matter under the analysis in Crawford. One difference is
that Wisconsin requires photo ID for absentee voting as well
as in-‐‑person voting; a person casting an absentee ballot must
submit a photocopy of an acceptable ID. Another difference
is that when a person who appears to vote in person lacks a
photo ID but says that he has one, and therefore casts a pro-‐‑
visional ballot, the state will count that ballot if the voter
produces the photo ID by the next Friday; in Indiana the
voter signs an affidavit of eligibility in one of the state’s cir-‐‑
cuit courts (which usually means travel to the county seat)
within 10 days. Offices of the Department of Motor Vehicles
in Wisconsin (where most people get government-‐‑issued
photo IDs) are open shorter hours than those in Indiana, but
more than three years have passed since Act 23’s adoption,
which makes it difficult to conclude that people who want
photo ID have been unable to find an open office in all that
time; no one thinks that people who want drivers’ licenses in
Wisconsin are unable to get them because of limited office
hours. Wisconsin’s list of acceptable documents (drivers’ li-‐‑
censes, Wisconsin state ID cards, passports, military ID of
persons in active service, recent naturalization papers, photo
4 Nos. 14-‐‑2058 & 14-‐‑2059
ID issued by a recognized Indian tribe, or signed photo ID
issued by a college or university) omits some documents that
Indiana accepts (see 553 U.S. at 198 n.16) and includes some
that Indiana omits. There are other differences in detail, but
none establishes that the burden of voting in Wisconsin is
significantly different from the burden in Indiana.
The district court concluded that Crawford is not control-‐‑
ling for three principal reasons. First, the judge estimated
that 300,000 registered voters in Wisconsin lack a photo ID
that the state will accept for voting. That is approximately
9% of the state’s 3,395,688 registered voters. The district
judge in Crawford, by contrast, estimated that only 43,000
persons eligible to vote lacked an acceptable photo ID. 458 F.
Supp. 2d 775, 807 (S.D. Ind. 2006). Second, the judge found
that voter-‐‑impersonation fraud (a ringer pretending to be a
registered voter) happens so rarely in Wisconsin that the de-‐‑
sire to reduce its occurrence cannot justify any significant
burden on voters. Third, the judge found that white persons
who are eligible to vote are more likely than others to have
in their possession either an acceptable photo ID or the doc-‐‑
uments (such as copies of birth certificates) that make it sim-‐‑
ple to get an acceptable photo ID. The judge found that in
Milwaukee County (which the judge took as a proxy for the
whole state) 97.6% of white eligible voters have a qualifying
photo ID or the documents they need to get one. That figure
is 95.5% for black eligible voters and 94.1% for Latino eligi-‐‑
ble voters. The judge concluded from the first two findings
that Act 23 violates the Constitution and from the third that
it violates the Voting Rights Act. The judge made many oth-‐‑
er findings, but these are the most important ones.
Nos. 14-‐‑2058 & 14-‐‑2059 5
Before we address the significance of the findings the
judge made, we mention a few things that the judge did not
find. First, the judge did not find that substantial numbers of
persons eligible to vote have tried to get a photo ID but been
unable to do so. Eight people testified that they had been
frustrated when trying to get photo IDs. Six of the eight testi-‐‑
fied that the state would not issue photo IDs because they
lack birth certificates, but they did not testify that they had
tried to get them, let alone that they had tried but failed. On-‐‑
ly two testified that distance or poverty hindered them when
trying to obtain birth certificates or correct records to remove
an error from a birth certificate.
Nor did the judge find that the situation of these eight
differed from the situation of many persons in Indiana. The
record in Crawford contains evidence about the same kind of
of frustration, encountered by persons born out of state, who
are elderly and may have forgotten their birthplaces and
birthdates (if their parents ever told them), who are unedu-‐‑
cated (and thus may not grasp how to get documents from
public agencies), or who are poor (and so may have trouble
getting to a public agency, or paying fees for copies of doc-‐‑
uments). The district judge here made extensive findings
demonstrating that the poor are less likely to have photo IDs
than persons of average income. Yet the district judge in
Crawford also discussed these problems; so did the Supreme
Court, which deemed them an inadequate basis for holding
Indiana’s law unconstitutional. 553 U.S. at 199–203.
The Court reached that conclusion even though Indiana
charged for copies of birth certificates—as did Wisconsin, at
the time of trial. Between the trial and the argument of this
appeal, however, the Supreme Court of Wisconsin directed
6 Nos. 14-‐‑2058 & 14-‐‑2059
state officials to issue photo IDs without requiring applicants
to present any document that must be paid for. Milwaukee
Branch of NAACP v. Walker, 2014 WI 98 ¶¶ 66–70. Moreover,
Wisconsin recently issued regulations requiring officials to
get birth certificates (or other qualifying documents) them-‐‑
selves for persons who ask for that accommodation on the
basis of hardship. Emergency Rule 14, Wis. Admin. Reg.
704b (August 31, 2014). So at the time of trial it was no hard-‐‑
er to get supporting documents in Wisconsin than in Indi-‐‑
ana, and today it is easier in Wisconsin than in Indiana.1
Second, the judge did not make findings about what
happened to voter turnout in Wisconsin during the February
2012 primary, when Act 23 was enforced (before two state
judges enjoined it). Did the requirement of photo ID reduce
the number of voters below what otherwise would have
been expected? Did that effect differ by race or ethnicity?
The record does not tell us. This suit, like Crawford, therefore
is a challenge to Act 23 as written (“on its face”), rather than
to its effects (“as applied”).
The record also does not reveal what has happened to
voter turnout in the other states (more than a dozen) that re-‐‑
quire photo IDs for voting. If as plaintiffs contend a photo ID
requirement especially reduces turnout by minority groups,
students, and elderly voters, it should be possible to demon-‐‑
1 Milwaukee Branch of NAACP and the regulations leave much to the
discretion of the employees at the Department of Motor Vehicles who
decide whether a given person has an adequate claim for assistance or
dispensing with the need for a birth certificate. Whether that discretion
will be properly exercised is not part of the current record, however, and
could be the subject of a separate suit if a problem can be demonstrated.
Nos. 14-‐‑2058 & 14-‐‑2059 7
strate that effect. Actual results are more significant than lit-‐‑
igants’ predictions. But no such evidence has been offered.
The lack of evidence about what has happened in other
states (or even in Wisconsin itself in 2012) means that this
case is in the same posture as Indiana’s: the parties and the
district court have tried to make predictions about the effects
of requiring photo ID, but the predictions cannot be com-‐‑
pared with results.
Plaintiffs want us to treat Crawford as a case in which
there was no record, so that the Supreme Court had no facts
to go on. That’s not what happened. An extensive record
was compiled in Crawford, and the district judge issued a
lengthy opinion. The judge in Indiana thought, just as the
judge in Wisconsin has found, that some voters would be un-‐‑
able, as a practical matter, to get photo IDs—because of age
or infirmity, lack of ability to pay for birth certificates, or the
difficulty of obtaining them from public-‐‑records bureaus
thousands of miles away in other states—and therefore
would have to travel to the county seat after every election
to file an affidavit of eligibility, but could not ascertain how
many people were in that category. The trial in Wisconsin
produced the same inability to quantify.
The findings not made affect how to interpret the find-‐‑
ings that were made. Take the conclusion (based on the tes-‐‑
timony of a “marketing consultant”) that 300,000 registered
voters lack acceptable photo ID. The number is questionable;
the district judge who tried the Indiana case rejected a large
estimate as fanciful in a world in which photo ID is essential
to board an airplane, enter Canada or any other foreign na-‐‑
tion, drive a car (even people who do not own cars need li-‐‑
censes to drive friends’ or relatives’ cars), buy a beer, pur-‐‑
8 Nos. 14-‐‑2058 & 14-‐‑2059
chase pseudoephedrine for a stuffy nose or pick up a pre-‐‑
scription at a pharmacy, open a bank account or cash a check
at a currency exchange, buy a gun, or enter a courthouse to
serve as a juror or watch the argument of this appeal. Could
9% of Wisconsin’s voting population really do none of these
things? (Some may have photo ID that is not accepted for
elections, such as a veteran’s card, but the record does not
show how many people get through life with the sort of
photo ID that Wisconsin does not accept for voting.) None-‐‑
theless, we accept the district court’s finding in this case.
What is its legal significance?
Plaintiffs describe registered voters who lack photo ID as
“disenfranchised.” If the reason they lack photo ID is that
the state has made it impossible, or even hard, for them to
get photo ID, then “disfranchised” might be an apt descrip-‐‑
tion. But if photo ID is available to people willing to
scrounge up a birth certificate and stand in line at the office
that issues drivers’ licenses, then all we know from the fact
that a particular person lacks a photo ID is that he was un-‐‑
willing to invest the necessary time. And Crawford tells us
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 sub-‐‑
stantial burden on the right to vote, or even represent a sig-‐‑
nificant increase over the usual burdens of voting.” 553 U.S.
at 198.
Registering to vote is easy in Wisconsin.2 Yet of those eli-‐‑
gible, only 78% have registered. (In raw numbers, 4.247 mil-‐‑
2 In order to register, a person must provide proof of residence (such
as a driver’s license, utility bill, bank statement, or residential lease) and
any one of (1) the applicant’s driver’s license number and expiration
Nos. 14-‐‑2058 & 14-‐‑2059 9
lion were eligible in 2012, and of that number only 3.318 mil-‐‑
lion were registered. The difference is almost a million, vast-‐‑
ly exceeding the number of registered voters who lack photo
ID. U.S. Census Bureau, Reported Voting and Registration by
Sex, Race and Hispanic Origin, for States: November 2012 (May
2013).) This proportion is lower than the 91% of registered
voters who have qualifying photo ID. We know from regis-‐‑
tration data (and the fact that not all registered persons cast
ballots) that any procedural step filters out some potential
voters. No one calls this effect disfranchisement, even
though states could make things easier by, say, allowing
everyone to register or vote from a computer or smartphone
without travel or standing in line. Yet if 22% of the eligible
population does not perform even the easiest step, registra-‐‑
tion, it is difficult to infer from the fact that 9% have not ac-‐‑
quired photo ID that that step is particularly difficult. A
more plausible inference would be that people who do not
plan to vote also do not go out of their way to get a photo ID
that would have no other use to them. This does not imply
that a need for photo ID is an obstacle to a significant num-‐‑
ber of persons who otherwise would cast ballots.
Some of the district court’s other findings support the
conclusion that for most eligible voters not having a photo
ID is a matter of choice rather than a state-‐‑created obstacle.
date, (2) a Wisconsin Department of Transportation ID number and its
expiration date, or (3) the last four digits of the applicant’s Social Securi-‐‑
ty number. Residents can register by mail or through a Special Registra-‐‑
tion Deputy (someone trained by a municipality to collect voter registra-‐‑
tion forms) until 20 days before an election. They can register in a munic-‐‑
ipal clerk’s office until the Friday before an election. And they can regis-‐‑
ter at a polling place on election day.
10 Nos. 14-‐‑2058 & 14-‐‑2059
We have mentioned the court’s finding that 2.4% of white
adult residents in Milwaukee County do not now have in
their possession either a qualifying photo ID or the docu-‐‑
mentation needed to get one. (This is the same thing as the
proposition that 97.6% do have a photo ID or the qualifying
documents.) The judge estimated that 4.5% of blacks and
5.9% of Latinos lack both. But if 9% of eligible voters lack a
photo ID, this necessarily means that more than half of eligi-‐‑
ble voters who lack a photo ID do have a birth certificate or
other qualifying documents among the family records. (One
witness testified that, of persons who lack qualifying photo
IDs, 32% also lack the documents needed to get one; this
means that 68% of all persons who lack a photo ID could get
one without hassle.) If people who already have copies of
their birth certificates do not choose to get free photo IDs, it
is not possible to describe the need for a birth certificate as a
legal obstacle that disfranchises them.
Because the burden of getting a photo ID in Wisconsin is
no greater than the burden in Indiana, the district court’s
constitutional holding must rest on its finding that photo IDs
do not serve any important purpose—for if that’s right, then
under the constitutional standard laid out in Crawford even a
modest burden is forbidden.
The district judge concluded that the only kind of fraud
that photo IDs address is impersonation of voters at the
polls, and he found that impersonation does not happen in
Wisconsin. (He allowed that some frauds may go undetected
but thought that the number is trivial.) Although the judge
recognized that some voter-‐‑impersonation frauds had been
detected—on one occasion, for example, a man cast an ab-‐‑
sentee ballot for his deceased wife—the judge thought that a
Nos. 14-‐‑2058 & 14-‐‑2059 11
photo ID would not necessarily prevent these. He observed
that the man could have submitted a photocopy of his de-‐‑
ceased wife’s photo ID. The state also contended that requir-‐‑
ing identification of voters at the polls promotes public con-‐‑
fidence in the integrity of elections, but the judge found that
there is no relation between voter-‐‑identification statutes and
public confidence. It follows, the judge concluded, that Wis-‐‑
consin’s Act 23 serves no legitimate purpose.
One problem with relying on these findings is that the
first of them—the conclusion that voter impersonation is ra-‐‑
re if not nonexistent—is identical to a finding made in the
Indiana litigation. The district judge in Indiana found that
there had never been a documented instance of voter-‐‑
impersonation fraud in that state. The Supreme Court recit-‐‑
ed this finding, 553 U.S. at 194–96, yet found it inadequate to
conclude that the statute does not serve any purpose. That’s
because the Supreme Court thought that a photo ID re-‐‑
quirement has other benefits (id. at 191–97): it deters fraud
(so that a low frequency stays low); it promotes accurate rec-‐‑
ord keeping (so that people who have moved after the date
of registration do not vote in the wrong precinct); it pro-‐‑
motes voter confidence. The Court took the last of these as
almost self-‐‑evidently true. And the need for documentation
such as a birth certificate to get a photo ID suggests another
benefit: it will prevent some people who should not have
registered (because they are too young or not citizens) from
voting when they are unable to get a qualifying photo ID.
Wisconsin allows registration on election day, and a photo
ID can help to verify (or refute) representations a person
makes when trying to register.
12 Nos. 14-‐‑2058 & 14-‐‑2059
The dissenting Justices were not impressed by the bene-‐‑
fits their colleagues touted. Justice Souter (joined by Justice
Ginsburg) heaped scorn on them, deeming them unsubstan-‐‑
tiated and at any event too modest to justify an appreciable
burden. 553 U.S. at 223–37 (dissenting opinion). (Justice
Breyer, who also dissented, did so because in his view the
photo ID requirement discouraged too many people from
voting; he did not join Justice Souter’s view that the law
served no valid purpose.) In this litigation, plaintiffs pro-‐‑
duced the testimony of a political scientist who agrees with
Justice Souter, and the district judge found as a fact that the
majority of the Supreme Court was wrong about benefits
such as better record keeping and promoting public confi-‐‑
dence. Maybe that testimony will eventually persuade the
Justices themselves, but in our hierarchical judicial system a
district court cannot declare a statute unconstitutional just
because he thinks (with or without the support of a political
scientist) that the dissent was right and the majority wrong.
To put this in legalese, whether a photo ID requirement
promotes public confidence in the electoral system is a “leg-‐‑
islative fact”—a proposition about the state of the world, as
opposed to a proposition about these litigants or about a
single state. Judges call the latter propositions “adjudicative
facts.” On matters of legislative fact, courts accept the find-‐‑
ings of legislatures and judges of the lower courts must ac-‐‑
cept findings by the Supreme Court. See, e.g., Armour v. Indi-‐‑
anapolis, 132 S. Ct. 2073, 2080 (2012); A Woman’s Choice—East
Side Women’s Clinic v. Newman, 305 F.3d 684 (7th Cir. 2002).
The district judge heard from one political scientist,
whose view may or may not be representative of the profes-‐‑
sion’s. After a majority of the Supreme Court has concluded
Nos. 14-‐‑2058 & 14-‐‑2059 13
that photo ID requirements promote confidence, a single dis-‐‑
trict judge cannot say as a “fact” that they do not, even if 20
political scientists disagree with the Supreme Court.
Photo ID laws promote confidence, or they don’t; there is
no way they could promote public confidence in Indiana (as
Crawford concluded) and not in Wisconsin. This means that
they are valid in every state—holding constant the burden
each voter must bear to get a photo ID—or they are valid in
no state. Functionally identical laws cannot be valid in Indi-‐‑
ana and invalid in Wisconsin (or the reverse), depending on
which political scientist testifies, and whether a district
judge’s fundamental beliefs (his “priors,” a social scientist
would say) are more in line with the majority on the Su-‐‑
preme Court or the dissent.
Wisconsin-‐‑specific findings do matter to some issues; if
the burden of getting a photo ID in Wisconsin were material-‐‑
ly greater than the burden in Indiana, then Wisconsin’s law
could indeed be invalid while Indiana’s stands. But no one
suggests that photo ID laws promote confidence in Indiana
but not Wisconsin; the district court’s finding concerns the
nation as a whole. (The political scientist who testified at tri-‐‑
al relied not on his own work, or even on work in a refereed
scholarly journal, but on Stephen Ansolabehere & Nathaniel
Persily, Vote Fraud in the Eye of the Beholder: The Role of Public
Opinion in the Challenge to Voter Identification Requirements,
121 Harv. L. Rev. 1737 (2008), which reported the results of
one opinion poll of people living throughout the country.)
That photo IDs promote confidence, even if they have no
other effect, is widely accepted outside the field of voting.
Take the photo ID requirement for boarding an aircraft. As
far as we are aware, a need to produce photo ID has never
14 Nos. 14-‐‑2058 & 14-‐‑2059
prevented a hijacking or act of terrorism; no one even argues
that it has. Magnetometers, x-‐‑ray machines, and other tech-‐‑
nical resources find guns, knives, and explosives. (Find them
frequently: many people who possess photo ID try to carry
these items onto planes.) But the public feels safer when eve-‐‑
ryone must show a photo ID, which makes the requirement
a rational one. Perhaps that is why both state and federal ju-‐‑
diciaries require photo ID of people entering courthouses,
even though it is the magnetometers and other technical
gear, not the ID, that finds the weapons.
If the public thinks that photo ID makes elections cleaner,
then people are more likely to vote or, if they stay home, to
place more confidence in the outcomes. These are substantial
benefits. One district judge’s contrary view is not enough to
condemn a state statute as unconstitutional. By contrast, a
finding that a photo ID law has significantly reduced the
turnout in a particular state would imply that the require-‐‑
ment’s additional costs outweigh any benefit in improving
confidence in electoral integrity. As we have observed, how-‐‑
ever, the judge did not find that photo ID laws measurably
depress turnout in the states that have been using them.
We have said enough to demonstrate that Crawford re-‐‑
quires us to reject a constitutional challenge to Wisconsin’s
statute. (The Supreme Court of Wisconsin reached the same
conclusion in Milwaukee Branch of NAACP and League of
Women Voters v. Walker, 2014 WI 97 (July 31, 2014), both of
which reversed injunctions that had been issued by state
judges.) In Crawford plaintiffs relied exclusively on the Con-‐‑
stitution; in this suit plaintiffs also contended, and the dis-‐‑
trict judge found, that the state law violates §2 of the Voting
Rights Act, 52 U.S.C. §10301, formerly 42 U.S.C. §1973:
Nos. 14-‐‑2058 & 14-‐‑2059 15
(a) No voting qualification or prerequisite to voting or standard,
practice, or procedure shall be imposed or applied by any State
or political subdivision in a manner which results in a denial or
abridgement of the right of any citizen of the United States to
vote on account of race or color, or in contravention of the guar-‐‑
antees set forth in section 10303(f)(2) of this title, as provided in
subsection (b).
(b) A violation of subsection (a) is established if, based on the to-‐‑
tality of circumstances, it is shown that the political processes
leading to nomination or election in the State or political subdi-‐‑
vision are not equally open to participation by members of a
class of citizens protected by subsection (a) in that its members
have less opportunity than other members of the electorate to
participate in the political process and to elect representatives of
their choice. The extent to which members of a protected class
have been elected to office in the State or political subdivision is
one circumstance which may be considered: Provided, That noth-‐‑
ing in this section establishes a right to have members of a pro-‐‑
tected class elected in numbers equal to their proportion in the
population.
The judge recognized that most case law concerning the ap-‐‑
plication of §2 concerns claims that racial gerrymandering
has been employed to dilute the votes of racial or ethnic
groups. See, e.g., Thornburg v. Gingles, 478 U.S. 30 (1986); Chi-‐‑
som v. Roemer, 501 U.S. 380 (1991). In Gingles the Justices bor-‐‑
rowed nine factors from a Senate committee report (often
called the “Gingles factors”) as the standard for applying §2.
The judge found that line of cases unhelpful for situations
involving eligibility to vote. The judge recognized that a
separate line of §2 cases does involve eligibility and has con-‐‑
cluded that felon-‐‑disfranchisement statutes do not violate §2
even though these laws have a disparate impact on minori-‐‑
ties. (Both blacks and Latinos are more likely to have felony
convictions than are whites.) See Farrakhan v. Gregoire, 623
F.3d 990 (9th Cir. 2010) (en banc); Simmons v. Galvin, 575 F.3d
16 Nos. 14-‐‑2058 & 14-‐‑2059
24 (1st Cir. 2009); Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006)
(en banc); Johnson v. Governor of Florida, 405 F.3d 1214 (11th
Cir. 2005) (en banc). But the judge deemed all of those deci-‐‑
sions irrelevant too, because most felon-‐‑disfranchisement
laws predate the Voting Rights Act.
The judge thought that §2 offers the best guide to its own
interpretation and emphasized the rule that laws must not
“result[] in a denial” of the right to vote. Act 23 has such a
result, the judge concluded, because white registered voters
are more likely to possess qualifying photo IDs, or the doc-‐‑
uments necessary to get them. We have mentioned one sta-‐‑
tistical disparity: 97.6% of whites, 95.5% of blacks, and 94.1%
of Latinos currently possess either qualifying photo IDs or
the documents that would permit Wisconsin to issue them.3
(In other words, these registered voters have, or can get,
photo IDs without asking any public-‐‑records office for any
additional document, such as a birth certificate.) If instead of
asking who has either photo IDs or the documents required
to get them, we ask only who had qualifying photo IDs as of
3 We have given the percentages of persons who have these docu-‐‑
ments. Plaintiffs express the figures differently, giving the percentages of
persons who lack the documents (2.4% of whites, 4.5% of blacks, and
5.9% of Latinos), then dividing one percentage by another to yield an
expression such as “registered Black voters in Wisconsin were 70% more
likely than white voters to lack a driver’s license or state ID” (LULAC Br.
2). That is a misuse of data. Dividing one percentage by another produc-‐‑
es a number of little relevance to the problem. If 99.9% of whites had
photo IDs, and 99.7% of blacks did, the same approach would yield the
statement “blacks are three times as likely as whites to lack qualifying
ID” (0.3 / 0.1 = 3), but such a statement would mask the fact that the
populations were effectively identical. That’s why we do not divide per-‐‑
centages.
Nos. 14-‐‑2058 & 14-‐‑2059 17
the trial, the district judge estimated that 92.7% of whites,
86.8% of blacks, and 85.1% of Latinos did. Finally, the judge
found that it would be harder for blacks and Latinos, on av-‐‑
erage, to get the documents they need, because for the five
years ending in 2011 some 75% of Wisconsin’s white resi-‐‑
dents had been born in that state, while only 59% of blacks
and 43% of Latinos had been born there. Getting birth certif-‐‑
icates from other states is harder than getting them from
Wisconsin, the judge found. The decision of the Supreme
Court of Wisconsin and the state’s new regulations may re-‐‑
duce that burden but cannot eliminate it; persons who rely
on the waiver procedure still must apply for it, which means
that on average black and Latino residents must file more
paperwork than white residents.
Although these findings document a disparate outcome,
they do not show a “denial” of anything by Wisconsin, as
§2(a) requires; unless Wisconsin makes it needlessly hard to
get photo ID, it has not denied anything to any voter. Nor
did the district court find that differences in economic cir-‐‑
cumstances are attributable to discrimination by Wisconsin.
The judge explained his findings this way: “the reason
Blacks and Latinos are disproportionately likely to lack an
ID is because they are disproportionately likely to live in
poverty, which in turn is traceable to the effects of discrimi-‐‑
nation in areas such as education, employment, and hous-‐‑
ing.” 2014 U.S. Dist. LEXIS 59344 at *119. The judge did not
conclude that the state of Wisconsin has discriminated in
any of these respects. That’s important, because units of
government are responsible for their own discrimination but
not for rectifying the effects of other persons’ discrimination.
See, e.g., Milliken v. Bradley, 418 U.S. 717 (1974). Section 2(a)
forbids discrimination by “race or color” but does not re-‐‑
18 Nos. 14-‐‑2058 & 14-‐‑2059
quire states to overcome societal effects of private discrimi-‐‑
nation that affect the income or wealth of potential voters.
Section 2(b) tells us that §2(a) does not condemn a voting
practice just because it has a disparate effect on minorities.
(If things were that simple, there wouldn’t have been a need
for Gingles to list nine non-‐‑exclusive factors in vote-‐‑dilution
cases.) Instead §2(b) tells us: “A violation of subsection (a) is
established if, based on the totality of circumstances, it is
shown that the political processes leading to nomination or
election in the State or political subdivision are not equally
open to participation by members of a class of citizens pro-‐‑
tected by subsection (a) in that its members have less oppor-‐‑
tunity than other members of the electorate to participate in
the political process” (emphasis added). Act 23 does not
draw any line by race, and the district judge did not find that
blacks or Latinos have less “opportunity” than whites to get
photo IDs. Instead the judge found that, because they have
lower income, these groups are less likely to use that oppor-‐‑
tunity. And that does not violate §2. In voting-‐‑dilution cases,
citizens lumped into a district can’t extricate themselves ex-‐‑
cept by moving, so clever district-‐‑line drawing can disad-‐‑
vantage minorities. But Act 23 extends to every citizen an
equal opportunity to get a photo ID.
To the extent outcomes help to decide whether the state
has provided an equal opportunity, we must look not at Act
23 in isolation but to the entire voting and registration sys-‐‑
tem. If blacks and Latinos do not get photo IDs at the same
frequency as whites, that will reduce their relative share of
voting in Wisconsin. By how much? We don’t know, because
(for reasons we have covered) it may be that the people who
do not get photo IDs are also those least likely to vote with
Nos. 14-‐‑2058 & 14-‐‑2059 19
or without photo IDs. Experience from other states would
help to understand the full effect, but the record lacks that
information. But we do know, from data published by the
Census Bureau, that blacks do not seem to be disadvantaged
by Wisconsin’s electoral system as a whole. In 2012 79.6% of
Wisconsin’s eligible white non-‐‑Hispanic residents were reg-‐‑
istered to vote. That year, 81% of the state’s eligible black
residents were registered to vote. (Only 46.8% of Latino resi-‐‑
dents were registered; this might be caused by errors in the
data; the Census Bureau provides an 18.4% margin of error
for this figure.) In 2012 75% of the state’s eligible white non-‐‑
Hispanic registered voters went to the polls; 78.5% of the
state’s eligible black voters cast ballots. Even if Act 23 takes
2.1% off this number (the difference between the 97.6% of
white voters who already have photo ID or qualifying doc-‐‑
uments, and the 95.5% of black voters who do), black turn-‐‑
out will remain higher than white turnout.
We are not saying that, as long as blacks register and vote
more frequently than whites, a state is entitled to make
changes for the purpose of curtailing black voting. Far from
it; that would clearly violate §2. Our point, rather, is that
when the validity of the state’s voting laws depends on dis-‐‑
parate impact, as the district court held, it is essential to look
at everything (the “totality of circumstances”, §2(b) says) to
determine whether there has been such an impact. Other-‐‑
wise §2 will dismantle every state’s voting apparatus.
No state has exactly equal registration rates, exactly
equal turnout rates, and so on, at every stage of its voting
system. At oral argument, counsel for one of the two groups
of plaintiffs made explicit what the district judge’s approach
implies: that if whites are 2% more likely to register than are
20 Nos. 14-‐‑2058 & 14-‐‑2059
blacks, then the registration system top to bottom violates
§2; and if white turnout on election day is 2% higher, then
the requirement of in-‐‑person voting violates §2. Motor-‐‑voter
registration, which makes it simple for people to register by
checking a box when they get drivers’ licenses, would be in-‐‑
valid, because black and Latino citizens are less likely to
own cars and therefore less likely to get drivers’ licenses.
(The district judge cited with approval, 2014 U.S. Dist. LEXIS
59344 at *102 n.32, a study concluding that in Milwaukee
County 73% of white adults, 47% of black adults, and 43% of
Hispanic adults have valid drivers’ licenses; this implies an
equally large difference in registration rates using the motor-‐‑
voter protocol.) Yet it would be implausible to read §2 as
sweeping away almost all registration and voting rules. It is
better to understand §2(b) as an equal-‐‑treatment require-‐‑
ment (which is how it reads) than as an equal-‐‑outcome
command (which is how the district court took it).
For the sake of argument, let us put all of the felon-‐‑
disfranchisement cases to one side, even though they offer
strong support for our reading of §2, in voter-‐‑qualification
situations, as an equal-‐‑treatment requirement. Three appel-‐‑
late opinions have applied §2 to voter-‐‑qualification rules
other than felon-‐‑disfranchisement statutes: Gonzalez v. Arizo-‐‑
na, 677 F.3d 383, 404–10 (9th Cir. 2012) (en banc); Ohio State
Conference of NAACP v. Husted, No. 14-‐‑3877 (6th Cir. Sept. 24,
2014), stayed under the name Husted v. NAACP, No. 14A336
(S. Ct. Sept. 29, 2014); and League of Women Voters of North
Carolina v. North Carolina, No. 14-‐‑1845 (4th Cir. Oct. 1, 2014).
Gonzalez held that Arizona’s voter ID statute (which requires
voters to present one qualifying photo ID or two qualifying
non-‐‑photo IDs) is valid under §2; the court cited Gingles but
did not use most of its nine factors or establish an alternative
Nos. 14-‐‑2058 & 14-‐‑2059 21
approach. The Fourth Circuit and the Sixth Circuit, by con-‐‑
trast, found Gingles unhelpful in voter-‐‑qualification cases (as
do we) and restated the statute as calling for two inquiries.
Based on our reading of the plain language of the statute and
relevant Supreme Court authority, we agree with the Sixth Cir-‐‑
cuit that a Section 2 vote-‐‑denial claim consists of two elements:
• First, “the challenged ‘standard, practice, or procedure’ must
impose a discriminatory burden on members of a protected
class, meaning that members of the protected class ‘have less
opportunity than other members of the electorate to partici-‐‑
pate in the political process and to elect representatives of their
choice.’” Husted, 2014 WL 4724703, at *24 (quoting [52 U.S.C.
§10301(a)–(b), formerly] 42 U.S.C. §1973(a)-‐‑(b));
• Second, that burden “must in part be caused by or linked to ‘so-‐‑
cial and historical conditions’ that have or currently produce
discrimination against members of the protected class.” Id.
(quoting Gingles, 478 U.S. at 47).
League of Women Voters, slip op. 33–34. We are skeptical
about the second of these steps, because it does not distin-‐‑
guish discrimination by the defendants from other persons’
discrimination. In vote-‐‑dilution cases, the domain of Gingles,
the government itself draws the district lines; no one else
bears responsibility. But if we were to adopt this approach
for the sake of argument, our plaintiffs would fail at the first
step, because in Wisconsin everyone has the same oppor-‐‑
tunity to get a qualifying photo ID.
Photo ID laws have been politically contentious. Crawford
remarked on the apparently partisan nature of the disa-‐‑
greement between those who favor and those who oppose
these statutes. The lead opinion stated: “if a nondiscrimina-‐‑
tory law is supported by valid neutral justifications, those
justifications should not be disregarded simply because par-‐‑
22 Nos. 14-‐‑2058 & 14-‐‑2059
tisan interests may have provided one motivation for the
votes of individual legislators. … The application of the stat-‐‑
ute to the vast majority of Indiana voters is amply justified
by the valid interest in protecting ‘the integrity and reliabil-‐‑
ity of the electoral process.’” 553 U.S. at 204. That is true of
Wisconsin as well.
One final comment. Even if Act 23 violated §2 or the
Constitution because of its disparate impact on economically
disadvantaged voters, the district court’s injunction could
not be affirmed. It reads:
[T]he named Defendants and Defendants’ officers, agents, serv-‐‑
ants, employees, and attorneys, and all those acting in concert or
participation with them, or having actual or implicit knowledge
of this Order by personal service or otherwise, are hereby per-‐‑
manently enjoined from conditioning a person’s access to a bal-‐‑
lot, either in-‐‑person or absentee, on that person’s presenting a
form of photo identification.
2014 U.S. Dist. LEXIS 59344 at *124. The injunction is perpetu-‐‑
al and unconditional. Even if Wisconsin offers a photo ID to
everyone registered to vote, without the need for supporting
documentation, it still can not require anyone to present
photo ID at a polling place. Under the injunction’s language,
it is irrelevant how well the changes required by Milwaukee
Branch of NAACP or adopted by regulation work in alleviat-‐‑
ing difficulties that some persons encounter in getting photo
IDs.
A district judge’s remedial authority is limited to ending
the illegal conduct—and the problem identified by the dis-‐‑
trict court is not photo ID in the abstract, but how income
and education affect the probability of having photo ID. The
injunction should have allowed the state an opportunity to
make photo ID more readily available.
Nos. 14-‐‑2058 & 14-‐‑2059 23
Details of the injunction do not matter, however, given
our conclusion that Act 23 does not violate either §2 or the
Constitution. The judgment of the district court is reversed.