Ruthelle Frank v. Tony Evers ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 16-3003 & 16-3052
JUSTIN LUFT, et al.,
Plaintiffs-Appellees, Cross-Appellants,
v.
TONY EVERS, Governor of Wisconsin, et al.,
Defendants-Appellants, Cross-Appellees.
____________________
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 11-C-1128 — Lynn Adelman, Judge.
____________________
Nos. 16-3083 & 16-3091
ONE WISCONSIN INSTITUTE, INC., et al.,
Plaintiffs-Appellants, Cross-Appellees,
v.
ANN S. JACOBS, Chair, Wisconsin Elections Commission, et
al.,
Defendants-Appellees, Cross-Appellants.
____________________
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 15-cv-324-jdp — James D. Peterson, Chief Judge.
2 Nos. 16-3003 et al.
____________________
ARGUED FEBRUARY 24, 2017 — DECIDED JUNE 29, 2020
____________________
Before EASTERBROOK, KANNE, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. Change is a constant in Wis-
consin’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 exposi-
tion, a brief introduction may help the reader.
Wisconsin used to rely on special registration deputies,
who registered voters at places such as high schools. Munic-
ipalities 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 electron-
ic 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has since been replaced by the Wisconsin Elections Commis-
sion, 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 infor-
mation. 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
Nos. 16-3003 et al. 3
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 re-
striction 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 multi-
ple locations. Id. at §1JS.
At the polls, voting a straight ticket is no longer an op-
tion. 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. Photograph-
ic 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.
This isn’t the first time that recent changes in Wisconsin’s
election system have been before us. We reversed a federal
district court’s determination, 17 F. Supp. 3d 837 (E.D. Wis.
2014), that the state’s requirement of photo ID violates the
Constitution and the Voting Rights Act. Frank v. Walker, 768
4 Nos. 16-3003 et al.
F.3d 744 (7th Cir. 2014) (Frank I). And we vacated a subse-
quent decision, 141 F. Supp. 3d 932 (E.D. Wis. 2015), that
construed Frank I as having resolved in Wisconsin’s favor all
arguments relating to particular voters’ difficulty in obtain-
ing qualifying photo IDs. Frank v. Walker, 819 F.3d 384 (7th
Cir. 2016) (Frank II). Because the right to vote is personal, the
state must accommodate voters who cannot obtain qualify-
ing photo IDs with reasonable effort.
On remand, one district judge ordered Wisconsin to im-
plement an “affidavit option” that excuses the requirement
for photo ID when any voter states that obtaining one re-
quires 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 enforce-
ment. 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.
I
One Wisconsin involves more than a dozen of the provi-
sions mentioned above, each contested under a number of
theories. The court’s rationales for ruling in the plaintiffs’
favor on several provisions overlap, and we consolidate our
treatment of them here.
Nos. 16-3003 et al. 5
A
The judge held that several provisions reflect racial dis-
crimination. For example, the court concluded that the
state’s reduction in the number of hours available for in-
person absentee voting (i.e., early voting) would have a dis-
parate impact on black voters in Milwaukee, because those
voters are more likely to use that procedure. What’s more,
the judge found, state legislators knew of that effect. Yet the
state did not have a reason for this change that the judge
found persuasive. Many of its explanations, the judge
thought, boil down to a desire to promote the chances of Re-
publican candidates compared with Democratic candidates.
Because that is a poor if not illegitimate reason, the judge be-
lieved, and produces a racially disparate effect, the judge in-
ferred that racial discrimination is the correct explanation.
There are two problems with this approach. First, it is in-
compatible with the standard for discriminatory intent artic-
ulated in Personnel Administrator of MassachuseDs v. Feeney,
442 U.S. 256 (1979). Second, the belief that a legislature can-
not take politics into account when making decisions that
affect voting was disapproved (after the district court’s deci-
sion) by Rucho v. Common Cause, 139 S. Ct. 2484 (2019). If one
party can make changes that it believes help its candidates,
the other can restore the original rules or revise the new
ones. The process does not include a constitutional ratchet.
Racial discrimination, as a constitutional maper, occurs
only when a public official intends to hold a person’s race
against him. Washington v. Davis, 426 U.S. 229 (1976). See also
Reno v. Bossier Parish School Board, 520 U.S. 471, 481–82
(1997), and Mobile v. Bolden, 446 U.S. 55, 66–67 (1980) (plural-
ity opinion), which apply Davis to voting-rights cases. This is
6 Nos. 16-3003 et al.
equally true of claims under the Fifteenth Amendment. See
Bossier Parish School Board, 520 U.S. at 481. And Feeney con-
cludes that knowledge of a law’s consequences differs from
intent to produce those consequences; equating the two
would treat disparate impact as a constitutional violation,
something that Davis rejected. Feeney observed that govern-
ment often does things that have disparate impact but can be
said to intend that effect only when it acts because of, rather
than in spite of (or with indifference to), the disparate effect.
442 U.S. at 279.
“Feeney holds that it is not enough to show that state ac-
tors knew that women would fare worse than men under an
official policy; instead the plaintiff must show that the state
actors adopted the policy because of, not in spite of or with
indifference to, its effect on women.” Bond v. Atkinson, 728
F.3d 690, 693 (7th Cir. 2013). After all, a legislature “may
know what its laws do, yet may not ‘intend’ all of the conse-
quences.” Some may be “fallout from activities undertaken
for another reason.” Bieneman v. Chicago, 864 F.2d 463, 467
(7th Cir. 1988). The doctrine of Feeney applies to electoral
rules, because it concerns how a court identifies the prohib-
ited intent, rather than any one subject maper.
The district court itself identified one “other reason” for
many of the new rules: the desire of a legislature with a Re-
publican majority to improve the chances of Republican
candidates. See 198 F. Supp. 3d at 920–21, 925, 934. (There
may be other reasons, such as a politically neutral desire to
improve the electoral process, but we can bypass them here.)
The parties agree, and the district judge found, that race and
politics are correlated: black voters are likely to prefer Dem-
ocratic candidates. Yet the record does not show that the leg-
Nos. 16-3003 et al. 7
islators made any of the changes because Democratic voters
are more likely to be black (or because black voters are more
likely to support Democrats). The changes were made be-
cause of politics.
If Rucho had held that legislators must disregard politics
when modifying the rules for voting (in Rucho, drawing dis-
trict lines), then the district court’s analysis would have been
stronger: making changes that have a disparate effect, but
lack a valid reason, looks discriminatory. But given the hold-
ing of Rucho that legislators are entitled to consider politics
when changing the rules about voting—or at least that any
contention to the contrary is not justiciable—the basis for in-
ferring discrimination evaporates. This record does not sup-
port a conclusion that the legislators who voted for the con-
tested statutes cared about race; they cared about voters’ po-
litical preferences. Cf. Cooper v. Harris, 137 S. Ct. 1455, 1463–
64 (2017) (plaintiffs must show that racial considerations
predominated over factors such as partisan advantage).
B
A second part of the district court’s method was to look
at each provision in isolation when applying what it called
the “Anderson-Burdick balancing analysis” (after Anderson v.
Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504
U.S. 428 (1992)) to claims under the First Amendment (or the
Fourteenth Amendment, a qualifier that we drop from here
on). The judge understood these decisions to allow the judi-
ciary to decide whether any given election law is necessary
because, if not, it is by definition an excessive burden. That
allows a political question—whether a rule is beneficial, on
balance—to be treated as a constitutional question and re-
solved by the courts rather than by legislators.
8 Nos. 16-3003 et al.
Burdick forecloses that sort of substitution of judicial
judgment for legislative judgment. Burdick upheld a ban on
write-in candidates after concluding that the state’s election
code as a whole imposed only reasonable burdens. Judges
must not evaluate each clause in isolation. So we held in
Griffin v. Roupas, 385 F.3d 1128, 1130–32 (7th Cir. 2004). That
decision considered the balance struck by other states, noted
the variance in political cultures, and discussed the interac-
tion of individual provisions with the election system as a
whole. Ibid. A state with liberal access to absentee ballots
may well offset this with more stringent verification of eligi-
bility. Another, concerned about the effects of late-breaking
information, may favor a system with a shorter (or no) win-
dow for early voting.
Because the “right to vote in any manner … [is not] abso-
lute” and the government must play an “active role in struc-
turing elections”, election laws “invariably impose some
burden upon individual voters.” Burdick, 504 U.S. at 433.
Courts weigh these burdens against the state’s interests by
looking at the whole electoral system. Id. at 434, 439. Only
when voting rights have been severely restricted must states
have compelling interests and narrowly tailored rules. Id. at
434; Anderson, 460 U.S. at 788; Acevedo v. Cook County Officers
Electoral Board, 925 F.3d 944 (7th Cir. 2019).
Wisconsin has lots of rules that make voting easier. It ex-
tends the privilege of voting by absentee ballot to otherwise
qualified electors who, for any reason, are unable or unwill-
ing to appear at the polls. Wis. Stat. §6.85. It keeps the polls
open for thirteen hours, and longer if voters are waiting in
line at closing time. Wis. Stat. §6.78. It entitles employees to
three hours off from work to vote. Wis. Stat. §6.76. It funds
Nos. 16-3003 et al. 9
specialized transportation assistance programs that seniors
and people with disabilities can use to get to the polls. Wis.
Stat. §85.21. It permits registration in person, by mail, or
online. Wis. Stat. §6.30. And it allows voters to register at the
polling place immediately before casting a ballot. Wis. Stat.
§6.55. These rules make voting easier than do the rules of
many other states. We observed in Frank I (citing a report by
the Census Bureau) that the net effect of Wisconsin’s rules
had been a higher turnout rate than other states for voters of
all races. 768 F.3d at 748–49. These facts maper when as-
sessing challenges to a handful of rules that make voting
harder.
C
Several of plaintiffs’ arguments invoke section 2 of the
Voting Rights Act, 52 U.S.C. §10301. The district court ana-
lyzed these arguments using a two-part test that it apributed
to Frank I. See 198 F. Supp. 3d at 951. But the two-part test
that the district court articulated is one adopted by the
Fourth and Sixth Circuits, not by this one. We considered
their approach and registered skepticism, not approval. 768
F.3d at 755. Plaintiffs recognize as much and ask us to over-
rule Frank I, but we stick with that decision.
Section 2(b) provides the standard for interpreting §2(a)’s
“denial or abridgment” result. Section 2(a) is violated only
when, under the totality of the circumstances, the election
system is “not equally open to participation” by members of
a protected class so that group’s members have “less oppor-
tunity than other members of the electorate to participate”.
To the extent that claims related to voter qualification and
election mechanics require a comparative “baseline,” see Re-
no v. Bossier Parish School Board, 528 U.S. 320, 334 (2000), §2(b)
10 Nos. 16-3003 et al.
provides it: opportunity to participate. In other words, §2(b)
is an equal-treatment requirement, not an equal-outcome
command. See Frank I, 768 F.3d at 754. The court must look
at the state’s actions rather than those of other persons, id. at
753, and intent is not an element. See Chisom v. Roemer, 501
U.S. 380, 394–95 (1991).
Much §2 jurisprudence involves gerrymandering. To the
extent that voters of different races make different choices—
for whatever reasons—redistricting that relies on practices
like packing and fracturing of racial blocs can dilute the val-
ue of voicing those differences. See Thornburg v. Gingles, 478
U.S. 30 (1986). Voicing differences is central to participation,
and drawing suspect lines means, ex ante, that some groups
will have less opportunity to do so while others might have
more opportunity.
Plaintiffs do not contend that any of Wisconsin’s changes
reduces their (legal) opportunity to participate in the elec-
toral process. They do say that some changes reduce the like-
lihood that they will use the opportunities they possess, but
Frank I held that this does not establish a violation. And alt-
hough it used a standard from the Fourth and Sixth Circuits
instead of the one from Frank I, the district court largely
agreed with the state’s contention that its laws do not reduce
voting opportunities. It rejected §2 challenges to the state’s
elimination of registration by corroboration, requirement of
documentary proof of residence, elimination of statewide
special registration deputies, and elimination of straight-
ticket voting. Nor did it see a §2 problem related to the
state’s increased durational residence requirement, de-
creased distance for the election observers’ zone, or the ID
petition process.
Nos. 16-3003 et al. 11
Plaintiffs do not challenge most of these findings on ap-
peal. They do contest the ruling that the petition process—
the mechanism by which people who lack the documents
required to receive a photo ID may obtain a receipt valid for
voting—doesn’t violate §2. We are skeptical that the petition
process results in race-based problems under the standard
that we articulated in Frank I. But for reasons we explain lat-
er, the process for implementing the photo-ID rule needs
more apention on remand.
Many of plaintiffs’ arguments, and some of the district
court’s rulings, suppose that §2 forbids any change in state
law that makes voting harder for any identifiable group.
Frank I rejected that line of argument. 768 F.3d at 752–53. The
Voting Rights Act does contain an anti-retrogression rule,
but it is in §5(b), 52 U.S.C. §10304(b). Section 5 of the Act has
never applied to Wisconsin. Section 2 must not be read as
equivalent to §5(b).
D
Plaintiffs presented arguments under the Twenty-Sixth
Amendment (which gives the vote to persons 18 and older)
and what they styled “partisan fencing” arguments. Indeed,
plaintiffs contested almost every feature of state law under
almost every line of argument. The district judge thought
that it was not necessary to analyze these arguments sepa-
rately, provision by provision. He treated arguments under
the Twenty-Sixth Amendment (for age) the same as those
under the Fifteenth Amendment (for race), and arguments
about “partisan fencing” as just different ways of presenting
contentions under Anderson and Burdick. We agree with that
assessment, which means that the Twenty-Sixth Amendment
and “partisan fencing” need not be mentioned again.
12 Nos. 16-3003 et al.
This brings us to the district court’s rulings on particular
provisions.
II
A
The district court determined that 2013 Wis. Act 146 vio-
lates the Fifteenth Amendment and permanently enjoined
the state from restricting the number of hours municipal
clerks could offer in-person absentee voting. 198 F. Supp. 3d
at 964. Wisconsin has since eliminated its restriction on the
number of hours per day and adjusted the number of days
on which municipalities may offer in-person absentee vot-
ing. 2017 Wis. Act 369 §1K. The district court, which had the
authority to monitor compliance with its injunction, see
Frank III, 835 F.3d at 652, enjoined §1K on January 17, 2019.
The original claim is not moot because both 2013 Wis. Act
146 and 2017 Wis. Act 369 §1K govern the total amount of
allowable time for in-person absentee voting. See Zessar v.
Keith, 536 F.3d 788, 794 (7th Cir. 2008) (discussing recurrence
of the complained-of conduct). The order enjoining §1K
means that we must address the dispute about its predeces-
sor, on which the new injunction depends.
The district judge found that the reduced hours have a
disparate impact on racial minorities. Part I.A of this opinion
explains why we disagree with the conclusion that this ren-
ders the law unconstitutional. Part I.B shows why this provi-
sion cannot be analyzed in isolation. The judge thought that
the change made early voting too hard.
Some of the district court’s analysis of this provision re-
flects the assurance of several municipal clerks that their
offices have the resources to handle additional hours of early
Nos. 16-3003 et al. 13
voting. Yet, as far as national government is concerned,
which decisions a state wishes to make statewide, and which
locally, are for the state to decide. See SchueDe v. Coalition to
Defend Affirmative Action, 572 U.S. 291 (2014). That some local
clerks may disagree with the state’s approach does not per-
mit them to enlist a federal court to override the state’s
judgment about how public employees’ time should be allo-
cated. Many states (approximately 20, by the briefs’ count)
do not offer any early voting; it is hard to see why Wiscon-
sin’s marginal adjustment of the number of days and hours
when that voting occurs could violate the Constitution.
Part I.C of this opinion largely disposes of challenges to
this statute under the Voting Rights Act, but some additional
explanation is appropriate.
The district court found that the state’s restrictions on in-
person absentee voting violate §2 in two ways: by allowing
just one location per municipality and by restricting the
number of days and hours offered. As for the first: if the sin-
gle authorized location is convenient for one racial group
and inconvenient for another, that could violate §2’s equal-
treatment principle. The opportunity to participate may de-
crease as distance increases. Yet the Milwaukee clerk’s office
is centrally located. What’s more, 2017 Wis. Act 369 §1JS
amended Wis. Stat. §6.855 to authorize municipalities to des-
ignate multiple sites for in-person absentee voting. See Wis.
Stat. §6.855(5). The one-location rule is gone, and its re-
placement is not substantially similar to the old one. It seems
unlikely that Wisconsin would return to a single-site re-
quirement if allowed to do so. We remand with instructions
to dismiss this aspect of the suit as moot. See Friends of the
14 Nos. 16-3003 et al.
Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528
U.S. 167, 189 (2000); Zessar, 536 F.3d at 794.
The changes to Wis. Stat. §6.86(1)(b) do not moot the par-
ties’ dispute about the amount of time allowed for in-person
absentee voting. Act 369 §1K removed time-of-day re-
strictions and increased the permissible number of days on
which voters could cast absentee ballots in person. Marginal
changes of this kind do not amount to the sort of voluntary
discontinuation, with assurances against recurrence, that
produce mootness.
We do not see a substantive problem with days-and-
hours limitations, however. They leave all voters with equal
opportunities to participate. Early voting is not a fundamen-
tal right in itself; it is but one aspect of a state’s election sys-
tem. As we have stressed, Wisconsin’s system as a whole is
accommodating. So long as a state treats all voters equally,
§2 does not limit the state’s control of details such as hours
for early voting.
Ohio Democratic Party v. Husted, 834 F.3d 620 (6th Cir.
2016), holds that a change similar to Wisconsin’s comports
with both the Constitution and §2 of the Voting Rights Act.
We agree with that decision and reverse the district court’s
finding that the time-of-day and number-of-days restrictions
violate §2 of the Voting Rights Act.
B
The district court analyzed a variety of provisions under
the Anderson-Burdick framework, which we introduced in
Part I.B.
1. One of these is the one-location rule and the re-
strictions on both the number of hours per day and number
Nos. 16-3003 et al. 15
of days for in-person absentee voting, which we have ad-
dressed (for purposes of other theories) immediately above.
The judge thought that these provisions together place a
moderate burden on the right to vote. 198 F. Supp. 3d at 931.
Because the state’s justification fails to outweigh the burden,
in the judge’s eyes, he concluded that the restrictions violate
the First Amendment. Id. at 934–35.
This instantiates the sort of analysis that Part I.B disap-
proves. In isolation, any rule reducing the number of days or
hours available for any kind of voting seems like an unjusti-
fied burden. But electoral provisions cannot be assessed in
isolation. Wisconsin’s many other provisions that make it
easy to vote cut in its favor. One less-convenient feature does
not an unconstitutional system make.
The district court erred, too, in assessing these features as
wripen (“on their face,” lawyers like to say) rather than as
applied. The judge did not find that either the electoral sys-
tem as a whole, or the days-and-hours rules for early voting,
makes it hard for anyone to vote in Wisconsin. And the sin-
gle-location provision has been rescinded. We reverse the
district court’s finding that the number of hours per day and
the number of days for in-person absentee voting violate the
First Amendment.
2. The district court found that Act 23’s requirement that
college and university “dorm lists” include citizenship in-
formation violates the First Amendment. 198 F. Supp. 3d at
938. We need not reach the constitutional issue; federal law
preempts the requirement. In particular, as a condition to its
grant of federal funds, the Family Educational Rights and
Privacy Act, 20 U.S.C. §1232g, prohibits educational agencies
or institutions from releasing “personally identifiable infor-
16 Nos. 16-3003 et al.
mation … other than directory information”, except for cir-
cumstances not pertinent here. Directory information does
not include citizenship status. 20 U.S.C. §1232g(a)(5)(A).
Wisconsin does not argue that it wants its educational agen-
cies and institutions to decline federal funds in order to
comply with Wis. Stat. §6.34(3)(a)(7)(b), nor does it contend
that we should apply any presumption against preemption.
And the state may encounter an additional problem under
§5 of the National Voter Registration Act, 52 U.S.C. §20504,
though we need not decide. We conclude that 20 U.S.C.
§1232g precludes the state from requiring educational agen-
cies and institutions to include citizenship information on
certified lists of students who reside in sponsored housing.
Thus we affirm the district court’s judgment, though for a
different reason.
3. The district court also deemed Act 23’s increase in the
durational residence requirement (from 10 days to 28 days)
to be unconstitutional. 198 F. Supp. 3d at 944. Otherwise-
qualified voters who move to a new district within 28 days
before an election may not vote in the new district for an
office other than President and Vice President. Wis. Stat.
§6.15(1). Residents unable to qualify as electors in a new
state may cast absentee ballots in their former Wisconsin dis-
trict for any presidential election that occurs within 24
months of leaving Wisconsin. Wis. Stat. §6.18. If the move
occurred within Wisconsin, the voter may cast a ballot for
any office in the former district. Wis. Stat. §6.10. Voters may
do this in person or by absentee ballot. Wis. Stat. §§ 6.85(2),
6.86(1), (3). As the district court notes, these options “reduce
the burden that the law imposes, but they do not negate it
entirely.” 198 F. Supp. 3d at 941. Yet “negation” is not the
constitutional standard.
Nos. 16-3003 et al. 17
Wisconsin’s 28-day window is close to the national norm
and less than the 30-day window that is subject to a safe
harbor for federal elections. 52 U.S.C. §20302(a)(2). It is less
than the 50-day window that the Supreme Court held to be
constitutional for Arizona. See Marston v. Lewis, 410 U.S. 679
(1973). Plaintiffs have not identified any feature of Wiscon-
sin’s law that makes a 28-day window more onerous in that
state than 50 days was in Arizona. Although Dunn v. Blum-
stein, 405 U.S. 330 (1972), holds that 90 days in Tennessee is
too long, it added that 30 days is permissible.
“States have valid and sufficient interests in providing
for some period of time—prior to an election—in order to
prepare adequate voter records and protect its electoral pro-
cess from possible fraud.” Marston, 410 U.S. at 680 (emphasis
in original). Wisconsin’s interests in safeguarding its open
primaries and polling-place registration, Wis. Stat. §§ 5.37(4),
6.55(2)(a), are sufficient in this sense. Plaintiffs seek to distin-
guish Marston and Dunn on their facts. It’s true that Wiscon-
sin’s election system differs from those of Arizona and Ten-
nessee, but most differences that we perceive make it easier
to vote in Wisconsin. We reverse the district court’s finding
that the 28-day durational residence requirement violates the
Constitution.
4. The district court concluded that, together, 2013 Wis.
Act 182’s requirement for documentary proof of residence
and Act 23’s elimination of proof by other persons’ corrobo-
ration imposed slight burdens on voters, 198 F. Supp. 3d at
935, and that the provisions do not violate the Constitution.
Plaintiffs challenge this aspect of the decision. In considering
the burden, the district court observed that, because Wis.
Stat. §6.34(3)(a)(11) authorizes proof via any “document is-
18 Nos. 16-3003 et al.
sued by a unit of government”, clerks may mail a leper to a
voter’s address so that the leper itself suffices as proof. 198 F.
Supp. 3d at 936. It also noted that the Government Account-
ability Board issued a ruling in August 2012 requiring elec-
tion officials to accept electronic versions of proof of resi-
dence. Id. at 907, 936. To this analysis we add that Wiscon-
sin’s election system is generous in permiping same-day reg-
istration at the polling place. Wis. Stat. §6.55(2)(a). However,
“a person does not have a federal constitutional right to walk
up to a voting place on election day and demand a ballot.”
Marston, 410 U.S. at 680. Proof of residence helps assign vot-
ers to their proper districts and is valid for that reason alone.
We affirm the district court’s decision on this issue.
5. The district court determined that 2011 Wis. Act 75,
which prohibits election officials from sending absentee bal-
lots via email or fax to all but a few categories of voters, Wis.
Stat. §6.87(3), violates the Constitution. 198 F. Supp. 3d at
948. We reverse this aspect of the decision. The district court
identified some voters who might be inconvenienced by this
rule—road warriors who may be out of state, or leisure trav-
elers who don’t plan ahead. This is not a plausible applica-
tion of Anderson and Burdick. As we have emphasized, all
parts of the electoral code must be considered, and travelers
have many ways to vote in Wisconsin. Some travelers’ po-
tential inconvenience does not permit a court to override the
state’s judgment that other interests predominate. Wisconsin
wants to control errors arising from the fact that faxed or
emailed ballots cannot be counted by machine and to protect
the secrecy of the ballot.
Plaintiffs observe that Wisconsin allows military voters to
use fax or email, but a state could reasonably conclude that
Nos. 16-3003 et al. 19
members of the military face special problems (they cannot
travel freely and may be unable to return to the state to use
its regular voting methods), which justify willingness on the
state’s part to accept the burdens that fax or email cause for
the vote-counting process.
C
Unexpired student IDs (that expire within two years of
the date of issuance) may be used when voting, but expired
student IDs may not. Wis. Stat. §5.02(6m)(f). The district
court held that this difference violates the Equal Protection
Clause. It concluded that the state lacks a rational basis for
its treatment of students. 198 F. Supp. 3d at 962. Wisconsin
has since added technical colleges to the list of institutions
authorized to issue valid student IDs, 2017 Wis. Act 369 §1,
which the district court enjoined on January 17, 2019.
The district court’s conclusion is hard to accept. The ra-
tional-basis standard is not demanding. Box v. Planned
Parenthood of Indiana & Kentucky, Inc., 139 S. Ct. 1780 (2019).
Drawing a line between current and expired documents
serves a “legitimate governmental purpose”. Heller v. Doe,
509 U.S. 312, 320 (1993). The Transportation Security Admin-
istration draws the same line for the purpose of boarding an
airplane; we do not see why the line is forbidden for voting.
Section 5.02(6m) requires almost all identifying documents—
operators’ licenses, passports, military identification, veter-
an’s identification, and identification issued under §343.50—
to be current, if they are to be used for voting. The period of
validity varies by type of identification. Compare Wis. Stat.
§5.02(6m)(a)(4), with subsection (b). Only identification is-
sued by federally recognized Wisconsin tribes escapes the
20 Nos. 16-3003 et al.
expiration conditions. Id. at §5.02(6m)(e). There’s nothing
wrong with a requirement that IDs be current.
There is still a problem. A student ID card, alone among
the sorts of photo ID that Wisconsin accepts, is not sufficient
for voting unless the student also shows proof of current en-
rollment. Id. at §5.02(6m)(f). No other category of acceptable
identification—including for drivers, military members,
passport holders, or veterans—depends on ongoing affilia-
tion of any sort. The statute sets students apart in this re-
spect, and the state has not tried to justify this distinction.
We take the omission as a concession that it lacks a rational
basis. This is not, as the district judge believed, because re-
dundant requirements in statutes—such as current ID +
proof of enrollment—are invariably irrational. Many a law-
yer prefers a belt-and-suspenders approach. The problem
here is that students are treated differently from other poten-
tial voters, and the state has left that difference unjustified.
We affirm that part of the judgment on this alternate ground.
III
Both district courts found fault with the way Wisconsin
implements the holding of Frank II that voting rights are per-
sonal, so that each eligible person must have a path to cast a
vote. Wisconsin’s requirement that persons produce photo
IDs at the polls may block voting by persons who encounter
substantial difficulty in obtaining the documents (such as
birth certificates) that Wisconsin requires for those who do
not already have passports, drivers’ licenses, or other ac-
ceptable credentials.
Wisconsin decided to address this problem with what it
calls the petition process. A person who has trouble assem-
Nos. 16-3003 et al. 21
bling essential documents can petition the state for an excep-
tion. Wis. Stat. §343.165(8)(a); Wis. Admin. Code §Trans
102.15(5m). Both district courts found that some voters
would expend more than reasonable effort navigating the
petition process. For some people it can entail lots of time,
personal effort, red tape, and heightened emotion. See 196 F.
Supp. 3d at 909–11; 198 F. Supp. 3d at 914–16. Both courts
considered the process unconstitutional as implemented, or
likely so. Both issued injunctions. We review each in turn.
A
The injunction issued by the Eastern District of Wiscon-
sin permiped any registered voter to declare that reasonable
effort failed to yield acceptable photo ID. The injunction al-
lowed a voter to make his or her choice about how much
effort was too much—some people might deem even one
trip to a governmental bureau excessive—and barred the
state from contesting any person’s conclusion. 196 F. Supp.
3d at 919–20. We stayed that injunction, explaining:
Our most recent decision in this case [Frank II] concluded that
anyone who is eligible to vote in Wisconsin, but cannot obtain a
qualifying photo ID with reasonable effort, is entitled to an ac-
commodation that will permit him or her to cast a ballot. Frank v.
Walker, 819 F.3d 384 (7th Cir. 2016). On remand, the district court
concluded that at least some voters fall in this category, notwith-
standing the most recent revisions to the procedures that Wis-
consin uses to issue photo IDs. But instead of apempting to iden-
tify these voters, or to identify the kinds of situations in which
the state’s procedures fall short, the district court issued an in-
junction that permits any registered voter to declare by affidavit
that reasonable effort would not produce a photo ID—even if the
voter has never tried to secure one, and even if by objective
standards the effort needed would be reasonable (and would
succeed).
22 Nos. 16-3003 et al.
The district court’s injunction allows any registered voter to
check a box stating a reason why reasonable effort would not
produce a qualifying photo ID. The boxes include lack of neces-
sary documents (apparently including situations in which the
person has not tried to obtain them), “work”, “family responsi-
bilities”, and “other”—and the voter can put anything in the
“other” box, including a belief that spending a single minute to
obtain a qualifying photo ID is not reasonable. The injunction
adds that state officials are forbidden to dispute or question any
reason the registered voter gives. Yet the Supreme Court held in
Crawford v. Marion County Election Board, 553 U.S. 181, 198 (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.” A given voter’s disagreement with
this approach does not show that requiring one trip to a gov-
ernmental office is unreasonable.
Because the district court has not apempted to distinguish genu-
ine difficulties of the kind our opinion mentioned, 819 F.3d at
385–86, or any other variety of substantial obstacle to voting,
from any given voter’s unwillingness to make the effort that the
Supreme Court has held that a state can require, there is a sub-
stantial likelihood that the injunction will be reversed on appeal.
2016 U.S. App. LEXIS 14917 (7th Cir. Aug. 10, 2016). That brief
discussion says all that really needs to be said about this in-
junction.
Permiping voters to file affidavits to obtain voting cre-
dentials isn’t problematic when the legislature authorizes it.
Other states have done so. See, e.g., Idaho Code §34-1114;
Ind. Code §3-11.7-5-2.5(c); La. Rev. Stat. §18:562(A)(2)(b); S.C.
Code §7-13-710(D)(1)(b). But when the legislature uses
different means, courts must ask whether those means are
themselves invalid. One federal judge’s preference for using
Nos. 16-3003 et al. 23
affidavits does not prevent a state legislature from imple-
menting a different approach.
B
The injunction issued by the Western District of Wiscon-
sin requires the state to issue a voting credential promptly
on receipt of materials sufficient to initiate the petition pro-
cess, unless the state has information showing that the po-
tential voter is disqualified. 198 F. Supp. 3d 964–65. We de-
nied a motion to stay that injunction pending appeal. The
state does not disagree with the district court’s fundamental
approach—which for the most part requires the state to do
what it told the judge it is doing—as much as it worries that
an injunction will make it impossible to alter the petition
process as it learns how things work. Persuading a court to
modify an injunction under Fed. R. Civ. P. 60(b)(5) can be
difficult. See United States v. Swift & Co., 286 U.S. 106, 119
(1932); Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367
(1992). And that has proven to be so. The state replaced its
temporary rule with a final one, Wis. Admin. Reg. CR 16-040
(Apr. 24, 2017), then adjusted and codified portions of that
approach. 2017 Wis. Act 369. The district court enjoined §92
of Act 369 on January 17, 2019. The 2019 injunction is not
part of this appeal, but we do have to consider the injunction
the district court issued earlier, and on which the 2019 relief
rests.
The constitutional question under Frank II is whether the
state ensures that every eligible voter can get a qualifying
photo ID with reasonable effort. Frank III says that the state’s
process, as the state describes it, is adequate to that end, if reli-
ably implemented. But are those conditions met?
24 Nos. 16-3003 et al.
The state’s procedure gives each person claiming eligibil-
ity to vote a rebupable presumption of eligibility: on receipt
of designated materials, the state issues a credential as a
maper of course (though the person may need to appear to
be photographed). Wis. Stat. §343.50(1)(c); Wis. Admin. Code
§Trans 102.15(6m). Administrative steps such as gathering
documents, making a trip, and posing for a photograph, are
no more than what Crawford v. Marion County Election Board,
553 U.S. 181, 198 (2008), considered reasonable. Those who
find it difficult to assemble the required documentation face
“somewhat heavier” burdens. 553 U.S. at 199. To prevent the
burden from becoming excessive, Wisconsin promised to
provide photo ID to anyone who, “more likely than not”,
meets the requirements. Wis. Stat. §343.165(8)(h); Wis. Ad-
min. Reg. CR 16-040 §10.
Plaintiff Johnny Randle’s experience shows why that may
be hard to implement reliably. The name he used for more
than seven decades differs from that of his birth certificate in
spelling but not in pronunciation. After submiping his peti-
tion, Randle needed more than a dozen telephone calls, two
in-person visits, and responses to multiple requests for in-
formation. The state demanded that he legally change his
name and then declined to issue a voting credential because
it asserted inability to verify his statement that he had done
that already. The state asked him to sign a declaration that
he had changed his name’s spelling at common law. It
capped the five-month process by denying the petition when
his agent did not produce a power of aporney.
Wisconsin asserts that the procedures it has recently es-
tablished would have short-circuited that process by allow-
ing the employees who interviewed Randle to look up the
Nos. 16-3003 et al. 25
records using his date of birth and his mother’s maiden
name, conclude that he had innocently been using a varia-
tion on the original spelling, and issue a voting credential.
Wisconsin recognizes name changes at common law as long
as the usage is consistent, continuous, and non-fraudulent.
State v. Hansford, 219 Wis. 2d 226, 246–47 (1998). It asserts
that the current version of its petition process, which it
wants to implement, recognizes this and would simplify life
for Randle and many others. Wisconsin allows common-law
name changes for driver’s licenses and the like, and its new
petition process requires the officials to accept a name
change when an applicant submits a statement declaring the
common-law elements as well as the prior name and its dis-
continuance. Wis. Stat. §343.50(3)(c); Wis. Admin. Reg. CR
16-040 §§ 1–3.
We stressed in Frank III that appropriate treatment of the
petition process depends on how it works. Although that
process has been a moving target from Frank II until today,
we do not blame the state for displaying flexibility. It has
had to see what problems are easy to solve and which are
tougher. The district court acted on a record assembled years
ago. Instead of trying to evaluate the adequacy of a process
that the state once championed, but now wants to change,
the best approach is to let it try and see what happens. Ade-
quacy cannot be evaluated in the abstract.
The state’s interest in the “integrity and reliability of the
electoral process” is strong. Crawford, 553 U.S. at 204; Frank I,
768 F.3d at 755. Every citizen’s interest in individual treat-
ment also is strong. That’s the holding of Frank II. Although
the state must be allowed to experiment and see what hap-
pens, we can say a bit more about the injunction the district
26 Nos. 16-3003 et al.
court issued. The judge stated that a would-be voter’s “fail-
ure to provide additional information or communication to
the DMV [Department of Motor Vehicles] is not good cause”
for declining to issue a photo ID. 198 F. Supp. 3d at 964.
That language allows applicants to convert a rebupable pre-
sumption of eligibility into an absolute entitlement just by
declining to cooperate with a request for information that is
either readily available or obtainable with reasonable effort.
Our decisions in Frank I and Frank II do not permit appli-
cants to stop the verification process unilaterally. When the
district court looks into this subject again on remand, it must
not order any relief that excuses applicants from the failure
to comply with reasonable requests for information that is
material to voting eligibility.
IV
This is complex litigation, and to keep this opinion man-
ageable we have omiped some lines of argument and abbre-
viated 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 dura-
tional 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 or-
ders related to the one-location rule and the ID petition pro-
cess and remand both, the former with instructions to dis-
miss as moot and the laper for further proceedings. We
Nos. 16-3003 et al. 27
affirm the district court’s judgment that Wisconsin’s student-
ID provision is invalid and its judgment concerning citizen-
ship on educational institution’s dorm lists, though on alter-
nate grounds for each. We otherwise affirm the district
court’s judgment. We reverse the Eastern District’s injunc-
tion 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. Us-
ing that cross-designation to place all of this litigation before
a single judge will eliminate the sort of inconsistent treat-
ment that has unfortunately occurred in the photo-ID parts
of the multiple suits.