Appeals court yet to rule on Wisconsin voter ID and other election laws after 16 months

MADISON - More than a year after hearing arguments, a federal appeals court has yet to rule on a host of Wisconsin voting laws, including aspects of the state’s voter ID statute.

The long delay has left some scratching their heads and raised questions about whether the court will act before this year’s elections, including the fast-approaching Aug. 14 primary.

"It is rare but not unprecedented for a case to take this long," said Joshua Douglas, a University of Kentucky College of Law professor. "I do think it's very weird and I'm very surprised it has taken this long."

What's at issue has only grown more complicated. In one recent development, the state sued a voting rights group to try to prevent it from contacting voters who have had difficulty getting free state IDs.

Litigation over the voter ID law has been going on since shortly after the measure was approved seven years ago. The law has largely been upheld, but courts have modified parts of it to make it easier for people who don’t have birth certificates to get free IDs.

The U.S. 7th Circuit Court of Appeals in Chicago heard arguments on the issue in a pair of cases in February 2017. One case deals with just the voter ID law; the other deals with multiple election issues, including voter ID and early voting rules.

The appeals court has handled voter ID issues quickly in the past. In 2014, a panel of three 7th Circuit judges reversed a lower court and reinstated the voter ID law just hours after hearing arguments.

But in the latest matter, the court has gone 16 months since hearing arguments without issuing any orders. The panel includes two judges — Frank Easterbrook and Diane Sykes — who participated in the quick 2014 ruling.

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“It's certainly unusual for court of appeals cases to take this long to be decided,” University of Chicago Law School professor Nicholas Stephanopoulos said by email.

He noted Easterbrook typically writes fast and said the court may be wrestling with one or more of the myriad election laws at issue in the broader case.

"Probably the explanation is the court's own difficulty resolving the many issues presented," he said in his email.

That lawsuit was brought by the liberal groups One Wisconsin Institute and Citizen Action of Wisconsin Education Fund.

In 2016, U.S. District Judge James Peterson in Madison struck down restrictions on early voting and a prohibition on allowing early voting in more than one place in each municipality. He found those laws discriminated against minorities.

In response, Milwaukee and Madison expanded their voting hours and allowed people to vote at multiple locations. A ruling by the appeals court could change those practices.

Peterson also ordered changes to how the state assists those who have great difficulty getting IDs because they don't have birth certificates or other documents proving their identities.

That same issue is at play in a separate lawsuit brought by the American Civil Liberties Union. The appeals court heard arguments in both cases together last year.

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Typically, courts don’t like to change voting rules close to an election, but Douglas, Stephanopoulos and Rick Hasen, an election law professor at the University of California, Irvine, said they believed there was still time for the appeals court to act this election cycle.

The judges considering the cases were appointed by Republican presidents. Easterbrook and Judge Michael Kanne were appointed by President Ronald Reagan. Sykes, a former Wisconsin Supreme Court justice, was appointed to the federal bench by President George W. Bush.

ACLU case

The ACLU lawsuit took a turn last year when the ACLU sought to use Department of Transportation information it had gained in its lawsuit to contact voters who had difficulty getting IDs.

GOP Attorney General Brad Schimel contended that would violate state privacy laws. When U.S. District Judge Lynn Adelman in Milwaukee declined to rule on that issue, Schimel filed a lawsuit against the ACLU in state court.

Dane County Circuit Judge Rhonda Lanford this month threw out the case, concluding the state didn’t have legal standing to bring the lawsuit.

Schimel appealed and state Appeals Judge Paul Lundsten quickly declined to issue an injunction that would have barred the ACLU from using the Department of Transportation data. He found no evidence the state would be harmed if the ACLU contacted voters and concluded there was nothing to suggest the ACLU would provide the information to others.

“DOT does not provide a reason to believe that this type of careless or inadvertent disclosure might occur, much less is likely to occur,” Lundsten wrote.

Schimel and his aides wrote in court filings last year that the DOT wants to protect the personal information it has about more than 5 million people.

"Identity theft and the financial loss that follows is a real and plausible threat when DOT data is compromised," Assistant Attorney General S. Michael Murphy wrote in one filing.

ACLU attorney Karyn Rotker said the group wasn't looking to share anyone's sensitive information and wanted to talk to just a small number of voters.

“We want to talk to these people to investigate what’s actually going on to make sure their rights are being protected,” Rotker said.

“We’re really concerned because we have a primary in less than three months and a general election in less than six months. … We want to be able to talk to voters who have problems.”