Wisconsin and Voter Identification: The Seventh Circuit’s Wait-and-See Approach

It’s undeniable that a sea change is happening in voting rights. The tide has reached Wisconsin. Three years after the Seventh Circuit heard oral argument on appeals concerning voting rights, the prolific Judge Easterbrook authored an opinion addressing how voters may access a ballot in Wisconsin.

While the opinion addresses a dozen provisions of Wisconsin law, let’s focus on one issue: voter identification. Wisconsin requires that voters present an ID to vote. While the particulars can get quite particular, you essentially need a state-issued ID card/driver’s license, passport, or student ID to vote.

So let’s say you are one of the recently graduated college students who moved back home. Do you have an unexpired college ID? If not, you have to get an accepted ID before you can vote in November. You’ll need an ID even if you plan to vote by mail. The requirement therefore means you need to 1) schedule an appointment with the DMV, 2) bring a birth certificate, photo, and social security card, and 3) apply for identification. This process can be especially difficult within certain demographics.

One lower court order had allowed for a variation of this ID process. The lower court order — called a district court injunction — permitted a voter to declare that she made “reasonable efforts” to obtain an accepted ID but could not get one. Under the district court’s injunction, election officials needed to accept the declaration and let her vote. The Seventh Circuit rejected that conclusion.

Why did the Seventh Circuit reject it? The appellate court reasoned that a DMV outing is a reasonable requirement to vote. “Administrative steps such as gathering documents, making a trip, and posing for a photograph, are no more than what [a 2008 Supreme Court decision] considered reasonable.”

What’s remarkable, though, is what’s missing from a discussion of what’s reasonable: the global pandemic. In fact, Covid-19 does not come up at all in this opinion. For an opinion that has waited three years to be issued (and for an opinion that references other more recent developments), this absence is fascinating.

The Covid-19 pandemic, undoubtedly, has affected what is reasonable. Is it reasonable to ask someone to leave her home to obtain an ID from the DMV so she can vote? What if she or her family is at risk? In one part in the opinion, the Seventh Circuit declared that “the right to vote is personal.” The decision-making process for someone wanting to vote this November, too, has become personal.

There are many other things to watch for ahead of November, including how to obtain an ID in Wisconsin. As the Seventh Circuit articulated in vacating in part the district courts’ decisions on appeal, “the best approach is to let it try and see what happens.”

We certainly shall see what happens.