Wisconsin's Voter-ID Case Provides a Lesson in Interim Relief

16 September 2014 Wisconsin Appellate Law Blog

In recent weeks, several high-profile cases involving Wisconsin public policy have come before the Seventh Circuit.  In many instances, these cases have provided not only insights on the federal judicial system for the general public, but also reminders for appellate practitioners of the nature of judicial powers.

Last Friday offered another example. The Seventh Circuit in Frank v. Walker, stayed the permanent injunction of Wisconsin’s voter-ID law (Act 23), which the Eastern District of Wisconsin had issued back in April. The appellate panel, composed of Judges Easterbrook, Sykes, and Tinder, took the step just hours after it heard oral argument in the consolidated cases weighing the law’s validity under the Voting Rights Act and under the Constitution.

It is worth emphasizing that the Court of Appeals always has the authority to enter this sort of interim relief. Unless impracticable, a party must move first in the district court. Fed. R. App. P. 8(a). If, however, the district court denies the motion, or fails to grant the requested relief (the situation here), the party may seek a stay of the district court’s judgment or order, or an order “suspending, modifying, restoring, or granting an injunction” pending appeal, from the Court of Appeals. Fed. R. App. P. 8(a)(2)(A).

Here, the court stayed the injunction, stating that “[t]he State of Wisconsin may, if it wishes (and if it is appropriate under rules of state law), enforce the photo ID requirement in this November’s elections.” As an initial matter, the court had grave doubts about the plaintiffs’ likelihood of success on the merits and called the state’s probability of success “sufficiently great” to warrant  the stay. The court noted that Wisconsin’s law was “materially identical” to Indiana’s photo-ID law, which the Supreme Court of the United States upheld in Crawford v. Marion County Election Board, 553 U.S. 181 (2008). But the Seventh Circuit also stressed that the Supreme Court of Wisconsin’s July 31 opinion in Milwaukee Branch of NAACP v. Walker, 2014 WI 98, which had made it easier to obtain the necessary documentation under the law, had “reduce[d] the likelihood of irreparable injury” and “change[d] the balance of equities and thus the propriety of federal injunctive relief.”

The end result: The court stayed an injunction that it evidently thinks never should have been entered in the first place. The wheels of justice need not be slow.

A full opinion from the Seventh Circuit on the case’s merits is yet to come.

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