Frank et al v. Walker et al

Filing 250

DECISION AND ORDER signed by Judge Lynn Adelman on 10/19/15 denying 222 Motion for Permanent Injunction, Motion to Certify Class and Motion for Judgment; denying 240 Motion to Strike. Further ordering that the claim of Domonique Whitehurst is dismissed as unripe. Further ordering that the claims of Samantha Meszaros and Matthew Dearing are dismissed as moot. Further ordering that the claims of Sam Bulmer, Carl Ellis, and Rickie Lamont Harmon are dismissed on the merits. (cc: all counsel) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RUTHELLE FRANK, et al.,
Plaintiffs,
v.

Case No. 11-C-01128

SCOTT WALKER, et al.,
Defendants.

DECISION AND ORDER
When the plaintiffs commenced this suit, they alleged that Wisconsin’s law requiring
voters to present photo identification at the polls, 2011 Wis. Act 23 (“Act 23"), violated the
Constitution and Section 2 of the Voting Rights Act. Following a trial on the claims alleged
in this and a companion case, I concluded that Act 23 placed an unjustified burden on the
plaintiffs’ voting rights and therefore violated the Fourteenth Amendment. I also concluded
that Act 23 violated Section 2 of the Voting Rights Act. Having found these violations, I
entered an injunction prohibiting the defendants from enforcing the photo ID requirement.
Frank v. Walker, 17 F. Supp. 3d 837 (E.D. Wis. 2014). The defendants appealed, and the
Seventh Circuit reversed. Frank v. Walker, 768 F.3d 744 (7th Cir. 2014).
In my prior decision, I noted that I was leaving certain of the plaintiffs’ constitutional
claims unresolved. Frank, 17 F. Supp. 3d at 842–43. Those claims involved Act 23's
failure to include certain forms of photo ID, such as veteran’s ID cards, on the list of
acceptable IDs, and its allegedly placing a poll tax on persons who would be required to
surrender their out-of-state driver’s licenses in order to obtain free ID cards to use for

voting. The plaintiffs now move for class certification and for relief on these unresolved
claims. I address those claims below.
However, before I turn to the unresolved claims, I discuss the plaintiffs’ request for
class certification and for relief on behalf of persons they describe as “Class 1 voters,” i.e.,
those voters “who lack photo ID and face systemic practical barriers to obtaining an ID.”
See Pls.’ Br. at 16, ECF No. 223. The relief they seek in connection with this claim is an
injunction allowing persons to vote at their polling place without presenting an ID but
instead by signing an affidavit attesting to their identity and to the difficulties they would
face in obtaining ID. Id. at 18. This “Class 1" claim is not a claim I left unresolved in my
prior decision. It is the constitutional claim on which I granted relief: I found that Act 23
imposed unjustified burdens on voters who currently lack photo ID and will face heightened
barriers to obtaining ID. Frank, 17 F. Supp. 3d at 862–63. I specifically considered the
plaintiffs’ proposed affidavit procedure and determined that an injunction against the law’s
enforcement was a more appropriate remedy for the violation of the plaintiffs’ rights. Id.
The Seventh Circuit reversed my decision and did not remand for further proceedings in
connection with this claim. It did not, for example, vacate the injunction and remand with
instructions to consider granting some other remedy, such as the plaintiffs’ proposed
affidavit procedure. Rather, it held that the plaintiffs’ claim was no different than the claim
the Supreme Court considered and rejected in Crawford v. Marion County Election Board,
553 U.S. 181 (2008). Frank, 768 F.3d at 751. I am not free to disregard this holding on
remand. See, e.g., Kovacs v. United States, 739 F.3d 1020, 1024 (7th Cir. 2014) (“The
lower court is bound, through the mandate rule, to the resolution of any points that the
higher court has addressed.”).
2

For two reasons, the plaintiffs contend that the Class 1 claim they are now pursuing
is different than the claim the Seventh Circuit considered and rejected: (1) they seek relief
on behalf of a narrower class of voters,1 and (2) they seek relief that is somewhat narrower
than the relief I previously granted.2 But these facts do not change the claim such that it
falls outside the Seventh Circuit’s holding on appeal. The Seventh Circuit characterized
the plaintiffs’ claim as a “facial” challenge that was indistinguishable from the claim in
Crawford because it was based on “predictions about the effects of requiring photo ID”
rather than on “results.” Frank, 768 F.3d at 747. The court implied that a constitutional
claim that is not foreclosed by Crawford would be one based on proof that “substantial
numbers of persons eligible to vote have tried to get a photo ID but been unable to do so,”
id. at 746, or on proof that the law has in fact significantly reduced voter turnout, id. at 747,
751. As I read the Seventh Circuit’s opinion, it holds that Crawford disposes of any
constitutional claim based on a “prediction” that barriers to obtaining photo ID will prevent

1

In their reply brief, the plaintiffs contend that the members of Class 1 are limited to
individuals who will face one of three barriers to obtaining ID: (1) having to deal with name
mismatches or other errors in an underlying document needed to obtain ID; (2) having to
obtain an underlying document from an agency other than the DMV; and (3) the person’s
underlying document does not exist. Pls.’ Reply Br. at 10, ECF No. 237.
2

I say “somewhat” narrower because the relief is not limited to identified members
of the class. Under the plaintiffs’ proposed affidavit procedure, any person who appeared
at the polls would be allowed to vote without showing ID so long as he or she signed an
affidavit in the required form. Thus, a person willing to commit voter-impersonation fraud
could submit a false affidavit and then vote in someone else’s name. Since that would
undermine the law’s purpose, which is to assure the public that voter-impersonation fraud
will not occur, the proposed affidavit procedure seems little better than enjoining the law
in its entirety. Of course, in-person voter-impersonation fraud is virtually nonexistent, but
I am bound by the Seventh Circuit’s interpretation of Crawford, under which photo-ID laws
are deemed to confer “substantial benefits” because they promote “confidence in electoral
integrity.” Frank, 768 F.3d at 751.
3

a group of persons from voting. The plaintiffs’ reformulated Class 1 claim fits this
description. It seeks relief on behalf of a group of voters who have not yet tried to obtain
ID,3 based on the prediction that it will be hard for them to obtain ID, and that therefore they
“are likely to be deterred from voting in future elections.” Pls.’ Br. at 18. This is precisely
the claim that I previously resolved in the plaintiffs’ favor and was reversed on. I continue
to believe that my decision was correct and that the plaintiffs’ claim is not foreclosed by
Crawford, but the Seventh Circuit disagreed and I am bound by its decision. Therefore,
I cannot reconsider the “Class 1" claim.
I. TECHNICAL COLLEGE ID
Plaintiff Domonique Whitehurst seeks to represent a class of “Wisconsin technical
college students who have photo ID otherwise acceptable under the student ID provisions
of Act 23.” Pls.’ Br. at 10, ECF No. 223. Under the student ID provisions of Act 23, such
an ID may be used for voting if it is issued by a university or college in Wisconsin that is
“accredited” (as defined by Wis. Stat. § 39.90(1)(d)), and meets certain other requirements.
See Wis. Stat. § 5.02(6m)(f). The plaintiff contends that any refusal to accept technical
college IDs as acceptable forms of ID for complying with Act 23 would violate the Equal
Protection Clause, and she seeks an injunction requiring the defendants to accept such

3

To be sure, some members of the class, including class representatives Ruthelle
Frank and Eddie Lee Holloway, Jr., have tried and failed to obtain ID. However, the class
definition is not limited to those who have tried and failed to obtain ID. Nor is the proposed
relief tailored to those who have tried and failed to obtain ID. As noted, the plaintiffs’
proposed affidavit procedure would be available to any person who shows up at the polls
and is willing to sign an affidavit stating that it would be hard for him or her to obtain ID.
A true “as applied” remedy for a person who has made a reasonable effort to obtain ID but
been unable to do so would be an injunction requiring the state to issue that person an ID.
4

IDs so long as they are otherwise indistinguishable from the types of student ID already
accepted under Act 23.
Act 23 does not expressly state that technical college IDs may not be used for
voting, and since November 2011, the Government Accountability Board (which is the state
agency charged with implementing Act 23) has interpreted Act 23 to mean that technical
college IDs are acceptable. However, when in September 2011 the GAB first considered
whether technical college IDs are acceptable, it concluded that the legislature “did not
intend for technical college ID cards to be treated as equivalent to those issued by other
universities and colleges.” Defs.’ Ex. 1049 at p. 2. It reached this conclusion after noting
that the legislature had rejected amendments to Act 23 that would have explicitly included
technical college IDs in the list of acceptable IDs. Id. But then the GAB reconsidered this
conclusion at its meeting on November 9, 2011, and it decided “to allow technical college
ID cards for voting purposes.” Defs.’ Ex. 1050, fifth page. At the November meeting, the
GAB determined that the ordinary meaning of the word “college,” as used in the statute,
included technical colleges. Id.
A few days after the GAB interpreted Act 23 to allow the use of technical college
IDs, the Wisconsin Legislature’s Joint Committee for the Review of Administrative Rules
directed the GAB to embody its interpretation of Act 23 in an emergency administrative
rule. See Defs.’ Ex. 1050, seventh page; Wis. Stat. § 227.26(2)(b). The GAB then created
an emergency rule allowing the use of technical college IDs for voting. Shortly thereafter,
the state courts enjoined the implementation of Act 23, and the GAB suspended its
administrative rulemaking. See Decl. of Kevin Kennedy ¶ 8–9, ECF No. 230. In May 2015,
following the reversal of the state-court injunctions and the injunction I issued in this case,
5

the GAB reissued the emergency rule, and Governor Scott Walker approved it. See ECF
No. 235. The emergency rule has been in force ever since, and the GAB has taken steps
to make that rule permanent. Kennedy Decl. ¶¶ 13–23. However, as of the date of this
opinion, the permanent rule has not replaced the emergency rule.
The defendants contend that the GAB’s interpretation of Act 23 and its rulemaking
have rendered the plaintiff’s equal-protection claim moot. However, although I agree that
the plaintiff’s claim is not justiciable at this time, I do so on the basis of ripeness rather than
mootness. Mootness comes into play when it is too late to grant relief to the plaintiff;
ripeness comes into play when it is too early to do so. See Capeheart v. Terrell, 695 F.3d
681, 648 (7th Cir. 2012). By the time the plaintiffs filed this suit, the GAB had interpreted
Act 23 to allow the use of technical college IDs for voting. The plaintiffs nonetheless
included a claim on behalf of technical college students in their complaint because they
feared that at some point in the future either the GAB, the governor, or the state legislature
would take some action to prevent the use of technical college IDs for voting. See Am.
Compl. ¶¶ 47–48, ECF No. 31. The plaintiff’s claim thus relates to future events that may
or may not occur, which raises a question of ripeness rather than mootness. See Wis.
Right to Life v. Barland, 664 F.3d 139, 148 (7th Cir. 2011) (“Ripeness concerns may arise
when a case involves uncertain or contingent events that may not occur as anticipated, or
not occur at all.”).
Here, the plaintiff’s claim is not ripe because too many contingent and unlikely
events must occur before she and the proposed class members would be precluded from
using technical college IDs at the polls. For nearly four years, the GAB has interpreted Act
23's student-ID provision as including technical college IDs, and it has issued both
6

emergency and proposed permanent rules that embody its interpretation. To date, neither
the governor nor the legislature has disagreed with the GAB’s interpretation, and these
branches of state government have taken no action to block the GAB’s rules. Even if the
GAB’s rules do not become permanent, the GAB could continue to interpret Act 23 the way
it has and continue to instruct local election officials to accept technical college IDs at the
polls. See Defs.’ Ex. 1050 at 7–8 (noting that GAB instructed local election officials to
accept technical college IDs even before the emergency rules went into effect). The
plaintiff suggests that the legislature could enact a new statute explicitly forbidding the use
of technical college IDs for voting, Am. Compl. ¶ 48, and at oral argument her lawyer
pointed out that the legislature is considering a bill to eliminate the GAB altogether, which
might result in the creation of a new agency responsible for administering the election laws,
which agency, in turn, might interpret Act 23 as excluding technical college IDs, see Tr. of
Oral Argument at 7. But these are highly speculative future events, and the chance that
they will occur is too small to justify constitutional adjudication. See Bauer v. Shepard, 620
F.3d 704, 708–09 (7th Cir. 2010) (claim is unripe when it depends on the occurrence of
“too many unlikely steps”).
Moreover, should the events the plaintiff fears come to pass, she (or another
technical college student) may commence a new suit at that time and seek a preliminary
injunction. The suit would present a relatively straightforward legal question that could be
resolved quickly, and if the plaintiff’s claim has merit an injunction could likely be issued
between the time the defendants announce their decision to exclude technical college IDs
and the date of an election. Thus, withholding judicial review until after that decision has
been made would not impose a hardship on the plaintiff or the proposed class members.
7

See Wis. Right to Life, 664 F.3d at 148 (explaining that case is unripe when plaintiff cannot
show that delaying judicial review until feared events occur will cause hardship).
For these reasons, the plaintiff’s motion for relief on behalf of technical college
students will be denied, and her claim will be dismissed as unripe.
II. OUT-OF-STATE DRIVER’S LICENSES
Plaintiffs Samantha Meszaros and Matthew Dearing seek to represent a class of “all
Wisconsin voters who are residents of Wisconsin for voting purposes, who lack any
accepted photo ID, and who would be forced to surrender an out-of-state driver’s license
in order to obtain a free Wisconsin ID card for voting purposes.” ECF No. 194 at 101.
These plaintiffs contend that the photo ID requirement, as applied to members of the
proposed class, amounts to a poll tax that violates both the 24th Amendment to the
Constitution and the Equal Protection Clause of the Fourteenth Amendment. Their
argument is that persons who possess an out-of-state license are faced with an
impermissible choice: they must either pay a fee to obtain another form of Act 23-compliant
ID (such as a passport) or surrender their driving privileges to obtain a free Wisconsin state
ID card.4 See Harper v. Va. Bd. of Elections, 383 U.S. 663 (1966); Harman v. Forssenius,
380 U.S. 528 (1965).
An initial problem is that the claims of the class representatives are moot. Both
Meszaros and Dearing testified at trial that they have obtained U.S. passports and that they
did so for reasons other than to vote in Wisconsin. Tr. at 696, 977. Thus, assuming that

4

Under Wisconsin law, a person may be issued a state ID card only if he or she
surrenders any driver’s license issued to that person by another jurisdiction. See Wis. Stat.
§ 343.50(1)(b); Wis. Admin. Code § Trans 102.14(2).
8

they are otherwise qualified Wisconsin voters,5 Meszaros and Dearing may now vote in
Wisconsin without obtaining a free Wisconsin state ID or surrendering their out-of-state
driver’s licenses. They therefore are no longer subject to the claimed poll tax, and their
individual claims must be dismissed as moot.6 It follows that I cannot certify a class in
which Meszaros and Dearing are the class representatives. Weismueller v. Kosobocki,
513 F.3d 784, 786 (7th Cir. 2008) (“If . . . the named plaintiff's claim becomes moot before
the class is certified, the suit must be dismissed because no one besides the plaintiff has
a legally protected interest in the litigation.”).
The plaintiffs contend that even if Meszaros and Dearing’s claims are moot, another
person, Brittney Frederick, is willing to serve as the class representative. Frederick filed
a declaration stating that she is a student at Carthage College and does not currently
possess any form of Act 23-compliant ID. See ECF No. 238-1. She does possess a
student photo ID card issued by Carthage, but she is not sure whether that ID is acceptable
for voting purposes. Frederick has an unexpired driver’s license issued by Illinois, which
is where she grew up and where her parents live. She states that she does not want to
either pay for a Wisconsin driver’s license or to surrender her Illinois driver’s license.

5

At the time of trial, Dearing was not a Wisconsin resident and for that reason was
not eligible to vote in Wisconsin. Tr. at 980. However, he stated that he hoped to return
to Wisconsin. Id.
6

Meszaros and Dearing contend that their claims are not moot because they are still
prohibited from using their out-of-state driver’s licenses to comply with Act 23. Reply Br.
at 17–18, ECF No. 237. However, the plaintiffs’ injuries were caused not by their inability
to use their out-of-state licenses at the polls, but by their inability to obtain Act 23-compliant
ID without choosing between either paying fees or surrendering their out-of-state driver’s
licenses. Now that the plaintiffs have obtained Act 23-compliant ID, they no longer face
this allegedly impermissible choice. Thus, their claims are moot.
9

Frederick is not identified in the plaintiffs’ most recent complaint, did not participate
in discovery, and did not testify at the trial. The defendants have not conceded that the
facts as alleged in her declaration are true.7 Thus, before Frederick could represent a
class, the plaintiffs would have to file a complaint identifying her as a plaintiff. The
defendants would then be entitled to take discovery with respect to her claim, and a second
trial might be required.
Moreover, the plaintiffs have not convinced me that there are a large number of
persons in Wisconsin who do not possess Act 23-qualifying ID and who could not obtain
such an ID without having to surrender an out-of-state driver’s license. See Fed. R. Civ.
P. 23(a)(1) (class may not be certified unless “the class is so numerous that joinder of all
members is impractical”). In moving for class certification, the plaintiffs identified college
students and “snowbirds”—individuals who live in Wisconsin during warmer months and
who live in other states during the winter—as the types of individuals who will likely
possess an out-of-state driver’s license yet be eligible to vote in Wisconsin. However, most
college students will possess student photo ID cards issued by their colleges, and the
evidence presented does not convince me that student ID cards issued by colleges or
universities in Wisconsin will fail to meet Act 23's requirements. Thus, at this point, I have
no reason to think that college students in Wisconsin must surrender any out-of-state IDs
in their possession in order to vote. As for snowbirds, none testified at trial. The only
evidence in the record pertaining to them is the testimony of a GAB employee who stated

7

The defendants have moved to strike Frederick’s declaration on the ground that it
was filed with the plaintiffs’ reply brief. See ECF No. 240. Although I will not strike the
declaration, neither will I assume that Frederick’s statements are true.
10

that he had heard from approximately ten individuals who complained about having to
surrender their out-of-state driver’s licenses to obtain Wisconsin ID cards. Tr. at 1687–88.
This testimony does not demonstrate that the number of individuals who cannot vote
without surrendering an out-of-state driver’s license is “so numerous that joinder of all the
members is impractical.” Fed. R. Civ. P. 23(a)(1). No details with respect to these ten
individuals were offered at trial, and it is possible that they possess some form of qualifying
ID. Even assuming that these individuals lack Act 23-qualifying ID and could not obtain
such ID without surrendering an out-of-state driver’s license, it is not impractical to join ten
individuals to a suit.
More generally, I doubt that there are a large number of qualified Wisconsin voters
who may legally drive in Wisconsin without possessing a valid Wisconsin driver’s license.
To vote in Wisconsin, a person must reside in Wisconsin.

Wis. Stat. § 6.02(1).

“Residence” is defined as “the place where the person's habitation is fixed, without any
present intent to move, and to which, when absent, the person intends to return.” Wis.
Stat. § 6.10(1).8 It is illegal for a Wisconsin resident to operate a motor vehicle in this state
unless that person possesses a valid operator’s license issued by the Wisconsin
Department of Transportation. Wis. Stat. § 343.05(3)(a). Nonresidents, however, may
operate a motor vehicle in Wisconsin so long as they are at least 16 years old and have
a valid license issued by the person’s home jurisdiction. Wis. Stat. § 343.05(4)(b)1. Under
the motor-vehicle code, a “resident” is defined as “an adult whose one home and
8

Other subsections of Wis. Stat. § 6.02 provide additional standards for determining
residence, but those standards do not alter the basic requirement that residence is the
place where the person’s habitation is fixed, without any present intent to move, and to
which, when absent, the person intends to return.
11

customary and principal residence, to which the person has the intention of returning
whenever he or she is absent, is in this state.” Wis. Stat. § 343.01(2)(g). This definition
has the same meaning as “residence” under the voting laws—both definitions define
residence as meaning, essentially, a person’s “domicile.” See Black’s Law Dictionary (10th
ed. 2014) (defining “domicile” as “[t]he place at which a person has been physically present
and that the person regards as home; a person's true, fixed, principal, and permanent
home, to which that person intends to return and remain even though currently residing
elsewhere.”). It is thus difficult to envision a scenario in which an adult could be a resident
of Wisconsin for purposes of the voting laws and not also be a resident of Wisconsin for
purposes of the motor-vehicle code, such that the person could legally drive in Wisconsin
without surrendering his or her out-of-state license. The plaintiffs have not offered an
interpretation of these statutes that would permit such a result.
If a person who is qualified to vote in Wisconsin must be a resident of Wisconsin for
driving purposes, then the only persons who could claim that having to surrender an out-ofstate driver’s license is a poll tax are persons who (a) are qualified to vote in Wisconsin,
(b) never drive in Wisconsin, (c) possess a driver’s license issued by another state, (d)
occasionally drive in that other state, and (e) do not already possess a form of Act 23qualifying ID. All other persons who are qualified to vote in Wisconsin and who wish to
retain their driving privileges would be required to obtain a Wisconsin driver’s license and
surrender their out-of-state driver’s license regardless of whether they intended to vote in
Wisconsin. I doubt that there are many persons who would fit criteria (a) through (e), and
the plaintiffs have not submitted evidence indicating that such persons exist. The students
who testified at the trial admitted to driving in Wisconsin, and thus if they are residents for
12

voting purposes they are required to have Wisconsin driver’s licenses regardless of
whether they wish to vote. Tr. at 698, 980–81. As noted, no snowbirds testified at trial, but
in any event I doubt that a person who lives in Wisconsin during its warmer months never
drives while in Wisconsin but drives in the state in which that person lives for the remainder
of the year. Thus, the plaintiffs have not demonstrated that their proposed class satisfies
the numerosity requirement of Rule 23(a)(1).
For these reasons, the claims of the named class members, Meszaros and Dearing,
will be dismissed as moot, and the plaintiffs’ motion to certify a class in connection with
their poll-tax claim will be denied.
III. VETERAN’S ID
Plaintiffs Sam Bulmer, Carl Ellis, and Rickie Lamont Harmon seek to represent a
class of veterans who possess photo identification cards issued by U.S. Department of
Veterans Affairs.9 The specific ID card at issue is the Veteran Health Identification Card,
which veterans use to obtain treatment at VA health facilities. See Young Decl. Ex. 17,
ECF No. 238-14. Act 23 does not include such ID cards among the kinds of photo ID
cards that may be used for voting. See Wis. Stat. § 5.02(6m). The plaintiffs contend that
the exclusion of veteran’s ID from the list of acceptable kinds of photo ID is arbitrary and
therefore violates the Equal Protection Clause as applied to any person who possesses
a veteran’s ID.

9

When the plaintiffs originally moved for class certification, they defined the class
in a way that limited it to persons who possessed veteran’s ID and no form of Act 23qualifying ID. See ECF No. 64 at 21. However, they have since expanded the proposed
class definition to include all persons who possess veteran’s ID, regardless of whether they
also possess Act 23-qualifying ID. See ECF No. 223 at 9; ECF No. 237 at 17–18.
13

The defendants argue that the claims of the proposed class representatives are
moot because, during the pendency of this case, all of them were able to obtain a form of
photo ID that is already accepted under Act 23. However, the injury for which the plaintiffs
seek redress is their inability to use their veteran’s ID for voting purposes. The plaintiffs’
having obtained other IDs that they can use for voting purposes does not redress that
injury. Although the inability to use a veteran’s ID for voting purposes may seem like a
minor injury in light of the plaintiffs’ possession of another form of ID, it nonetheless is
sufficient to give the plaintiffs “a direct stake in the outcome of the litigation.” See United
States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 689 n.14
(1973). The plaintiffs wish to use their veteran’s ID for voting purposes, but the defendants
will not allow them to. An injunction requiring the defendants to accept the plaintiffs’
veteran’s IDs would redress their injuries. Thus, the named plaintiffs continue to have
standing, and their claims are not moot.10
The defendants next argue that I may not certify the proposed class of veterans
because the class would not satisfy the numerosity requirement of Rule 23(a)(1), because
the claims of the named plaintiffs are not typical of the claims of the class, see Rule

10

My conclusion that the claims of veterans who possess acceptable ID are not moot
is consistent with my conclusion that the claims of those who possess both out-of-state ID
and Act 23-qualifying ID are moot. This is because the claims of those with out-of-state
ID relate to the process of obtaining acceptable ID—they claim they are injured because
they cannot obtain Act 23-qualifying ID without paying a poll tax. If the plaintiffs have
obtained Act 23-qualifying ID without paying a poll tax, then they are no longer suffering
the claimed injury. In contrast, the veterans do not challenge the process of obtaining ID;
they challenge what is, in their view, the arbitrary exclusion of veteran’s ID from the list of
Act 23-qualifying ID. Thus, the named plaintiffs who are veterans may challenge the
continued refusal to accept veteran’s ID even though they have obtained acceptable forms
of photo ID.
14

23(a)(3), and because the named plaintiffs are not adequate class representatives, see
Rule 23(a)(4). However, rather than addressing these issues, I will proceed to address the
merits of the named plaintiffs’ claims. I do this because, as I will discuss, those claims fail
on the merits. Thus, certifying a class of veterans would not benefit the plaintiffs. Rather,
it would benefit only the defendants by precluding unnamed veterans from bringing their
own, separate claims. See Myrick v. WellPoint, Inc., 764 F.3d 662 (7th Cir. 2014). But the
defendants oppose class certification and thus seem content to waive this benefit.
Therefore, I will proceed to the merits. See Cowen v. Bank United of Tex., 70 F.3d 937,
941–42 (7th Cir. 1995).
The plaintiffs argue that it is arbitrary to exclude veteran’s ID from the list of
acceptable forms of ID when a veteran’s ID is “just as secure” (i.e., just as likely to ensure
that the person presenting it is who he or she claims to be) as other forms of Act 23qualifying ID—namely, ID cards issued by a U.S. uniformed service (“military ID cards”)
and ID cards issued by federally recognized Indian tribes in Wisconsin (“tribal ID cards”).11
Wis. Stat. § 5.02(6m)(a)3 & (e). Therefore, argue the plaintiffs, Act 23 cannot survive
rational-basis scrutiny.12 Under such scrutiny, a statutory classification must be upheld “if

11

The parties do not identify a comprehensive standard for judging the degree of
“security” offered by a given form of ID. However, some forms of military and tribal ID
cards apparently do not bear expiration dates. Tr. at 1965. At the time Act 23 was passed,
veteran’s ID cards did not bear expiration dates. See Def. Post-trial Br. at 123, ECF No.
176. (However, newly issued cards have expiration dates. See Young Decl. Exs. 4 & 8.)
It is apparently the lack of expiration dates that makes some military ID cards, tribal ID
cards, and veteran’s ID cards “less secure” than other forms of ID, such as driver’s licenses
and passports.
12

In a footnote, the plaintiffs suggest that the Anderson/Burdick balancing test, see
Burdick v. Takushi, 504 U.S. 428 (1992); Anderson v. Celebrezze, 460 U.S. 780 (1983),
rather than rational-basis scrutiny, might apply to the question of whether the defendants
15

there is any reasonably conceivable state of facts that could provide a rational basis for the
classification.” FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993).
There is no dispute that veteran’s ID is “just as secure” as some forms of military
and tribal ID that are acceptable under Act 23. However, this does not make Wisconsin’s
decision to exclude veteran’s ID arbitrary or irrational. The plaintiffs’ argument implies that
the state must accept all forms of photo ID that are “just as secure” as the least secure
form of ID that is already on the list of accepted IDs. That would produce a very long list.
The federal judiciary, for example, issues ID cards to its employees that contain the
employee’s name and photograph, as well as the date of issuance and an expiration date.
Presumably, this card would be “just as secure” as a veteran’s ID, tribal ID, or military ID.
Moreover, many other federal, state, and local governmental agencies likely issue photo
IDs to their employees that could be deemed “just as secure” as military IDs or tribal IDs.
Under the plaintiffs’ argument, those IDs would have to be accepted as well. Undoubtedly,
many other forms of photo ID could be identified that are “just as secure” as the forms of
ID already accepted under Act 23.
It is rational for Wisconsin to limit the number of acceptable IDs to a manageable
amount, while at the same time accepting enough forms of ID to make it likely that most
voters will already possess one of the accepted forms. If the state could not limit the
number of IDs to a manageable amount, state officials would be required to compile a list

may exclude veteran’s ID. See Reply Br. at 3 n.2, ECF No. 237. However, the plaintiffs
do not develop this argument, and it was raised for the first time in their reply brief. For
these reasons, I will not consider the argument. See Bank of America, N.A. v. Veluchamy,
643 F.3d 185, 189–90 (7th Cir. 2011) (court is not required to consider undeveloped
arguments); Gonzales v. Mize, 565 F.3d 373, 382 (7th Cir. 2009) (argument raised for the
first time in a reply brief is waived).
16

of all forms of accepted ID that a Wisconsin voter might possess, make sure that the list
was updated regularly, and identify all the forms of ID that are “just as secure” as the least
secure form of ID that is already on the list of acceptable IDs. Act 23 would need to be
periodically amended to include any new forms of ID that are “just as secure” as the IDs
that are already accepted. And poll workers would need frequent training on which IDs are
acceptable. All of this would make it harder for the state to administer the law, and it is
rational for the state to want to minimize this burden.
To be sure, Wisconsin probably could have included veteran’s ID on the list of Act
23-qualifying ID without significantly increasing its administrative burden. However, for the
reasons just discussed, the state had to draw the line between acceptable and
unacceptable forms of ID somewhere. Drawing such a line “inevitably requires that some
persons who have an almost equally strong claim to favored treatment be placed on
different sides of the line, and the fact [that] the line might have been drawn differently at
some points is a matter for legislative, rather than judicial, consideration.”

Beach

Communications, 508 U.S. at 315–16 (internal quotation marks omitted).

Thus,

Wisconsin’s decision to exclude veteran’s ID from the list of acceptable forms of ID is
“virtually unreviewable.” Id. at 316.
Moreover, one can conceive of reasons for wanting to expand the list of acceptable
forms of ID to include military ID and tribal ID, even if they may be deemed “less secure”
than some of the other forms of acceptable ID, but not expand the list to include veteran’s
ID. Military ID cards are issued to active-duty personnel and their family members (among
others). These individuals tend to relocate more frequently than voters generally and for
that reason may not reside in Wisconsin for long enough to find themselves in need of a
17

Wisconsin driver’s license or state ID card. Thus, the state could rationally conclude that
military voters should be able to use their military ID cards at the polls, even though they
may be “less secure” than other forms of ID.13 The same rationale would not apply to
veterans, who are no more likely to relocate frequently than voters generally. Thus, the
state had a rational basis for expanding the list of acceptable ID to include military ID but
not veteran’s ID.
As for tribal ID cards, they are issued by quasi-sovereign Indian tribes to their
members. The state could rationally conclude that tribal ID cards hold the same status
within the tribal community as Wisconsin state ID cards hold outside of it, and that
therefore they should be treated the same as Wisconsin state ID cards for voting purposes,
even if they could be deemed somewhat “less secure” than Wisconsin state ID cards
because they do not have expiration dates. This rationale would not apply to veteran’s ID
cards, as obviously veterans do not comprise a quasi-sovereign community that issues its
own form of citizen ID. Thus, the state had a rational basis for expanding the list of
acceptable ID to include tribal ID cards but not veteran’s ID cards.

13

The plaintiffs note that military ID cards are issued not just to active-duty
personnel, but also to retirees and others who might not relocate as frequently as activeduty personnel. Although that may be true, it does not render the state’s decision to accept
military ID cards irrational. The plaintiffs have not shown that there is a form of military ID
that is possessed only by active-duty personnel who are likely to relocate, such that the
state could have limited its acceptance of military IDs to that form. But more importantly,
under rational-basis scrutiny, the state is not required to draw its lines with precision. See
Wis. Educ. Ass'n Council v. Walker, 705 F.3d 640, 655–56 (7th Cir. 2013). Thus, even if
the state could have limited its acceptance of military IDs to a form that it possessed only
by active-duty personnel, the Equal Protection Clause would not have required it to do so.
Id. at 656 (noting that court will not interfere with legislative line-drawing even when the
lines drawn are overinclusive or underinclusive).
18

In their briefs and at oral argument, the plaintiffs relied heavily on Center for Inquiry,
Inc. v. Marion Circuit Court Clerk, 758 F.3d 869 (7th Cir 2014). In that case, a group of
secular humanists alleged that Indiana’s marriage-solemnization statute violated the
Religion Clauses of the First Amendment because it allowed solemnization by religious
officials of certain religious groups but disallowed solemnization by equivalent officials of
secular groups. The Seventh Circuit held that the statute violated the First Amendment by
favoring religious groups over secular groups. But it also stated that the statute violated
the Equal Protection Clause because it made irrational and absurd distinctions. Id. at
874–75. The plaintiffs contend that this case stands for the proposition that a state’s
desire for a finite list does not justify its exclusion of items from that list that otherwise could
have been included. But that’s not what the case says. Indiana did not defend its
exclusion of secular humanists from its list of approved marriage celebrants on the ground
that including them would open the door to an unmanageably long list. Indiana gave other
reasons for excluding them. See id. at 874. Moreover, the reason the exclusion of
humanists was irrational was that the statute “discriminated arbitrarily among religious and
ethical beliefs.” Id. at 875. The statute, for example, permitted officials of the Church of
Satan, “whose high priestess avows that her powers derive from having sex with Satan,”
to solemnize marriages, yet precluded Buddhists, “who emphasize love an peace,” from
doing so. Id. As explained above, nothing like that is going on here. Wisconsin had a
rational basis for including tribal and military IDs on the list of acceptable IDs yet excluding
veteran’s IDs.

19

Accordingly, the named plaintiffs are not entitled to an injunction requiring the state
to accept veteran’s ID cards for voting purposes. Their claims will be dismissed on the
merits.
IV. CONCLUSION
For the reasons stated, IT IS ORDERED that the plaintiffs’ motion for permanent
injunction, class certification, and judgment on remaining as-applied claims is DENIED.
IT IS FURTHER ORDERED that the defendants’ motion to strike portions of the
plaintiffs’ reply brief and supporting materials is DENIED.
IT IS FURTHER ORDERED that the claim of Domonique Whitehurst is dismissed
as unripe.
IT IS FURTHER ORDERED that the claims of Samantha Meszaros and Matthew
Dearing are dismissed as moot.
IT IS FURTHER ORDERED that the claims of Sam Bulmer, Carl Ellis, and Rickie
Lamont Harmon are dismissed on the merits.
Dated at Milwaukee, Wisconsin, this 19th day of October 2015.
s/ Lynn Adelman
_______________________
LYNN ADELMAN
District Judge

20