Frank et al v. Walker et al

Filing 311

DECISION AND ORDER signed by Judge Lynn Adelman on 7/29/16 denying 297 Defendants' Motion to Stay. (cc: all counsel) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________
RUTHELLE FRANK, et al., on behalf of
themselves and all others similarly situated,
Plaintiffs,
v.

Case No. 11-C-1128

SCOTT WALKER, in his official capacity as
Governor of the State of Wisconsin, et al.,
Defendants.
______________________________________________________________________
DECISION AND ORDER
Before me now is the defendants’ motion to stay, pending appeal, my order
granting the plaintiffs’ motion for a preliminary injunction. See Fed. R. Civ. P. 62(c);
Fed. R. App. P. 8(a)(1). The preliminary injunction requires Wisconsin’s governor and
its election-administration officials to implement a procedure in which voters are
excused from having to present photo ID if they execute an affidavit stating that they
have been unable to obtain an ID with reasonable effort.
The standard for granting a stay pending appeal mirrors that for granting a
preliminary injunction. In re A&F Enters., Inc. II, 742 F.3d 763, 766 (7th Cir. 2014). To
determine whether to grant a stay, I consider the moving party’s likelihood of success
on the merits, the irreparable harm that will result to each side if the stay is either
granted or denied in error, and whether the public interest favors one side or the other.
Id. As with a motion for a preliminary injunction, a “sliding scale” approach applies; the
greater the moving party’s likelihood of success on the merits, the less heavily the
balance of harms must weigh in its favor, and vice versa. Id.

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Because the legal standard for granting a stay pending appeal mirrors that for
granting a preliminary injunction, and because I have already determined that the
plaintiffs are entitled to a preliminary injunction, I conclude that the defendants are not
entitled to a stay pending appeal. I will largely rest on the reasoning set out in my
decision on the motion for a preliminary injunction. In this decision, I will address only
those arguments that the defendants make in support of their motion to stay that they
did not also make in opposition to the plaintiffs’ motion for a preliminary injunction.
First, the defendants argue that a few of the examples I relied on when finding
that some plaintiffs will be unable to obtain ID with reasonable effort arose under “old
law,” i.e., before the Department of Transportation adopted the emergency rules that
became effective on May 13, 2016.

See Emergency Rule 1618.

The defendants

contend that these examples might have turned out differently had the emergency rules
been in effect when the individuals in the examples applied for a free state ID card.
However, the emergency rules did not create a brand new procedure for issuing free
state ID cards. Rather, as the defendants represented in their original brief, the rules
merely “codifie[d] the best practices that have evolved through DMV’s experience.”
Defs. Br. at 3, ECF No. 285.

Kristina Boardman, the Administrator of the DMV,

confirmed that the emergency rules merely codified the DMV’s existing practices and
added deadlines for processing an ID application. Boardman Decl. ¶ 39, ECF No. 287.
She stated that the “ID petition process,” which is codified in the emergency rules and
used to assist applicants who do not have documents that prove name, date of birth,
and citizenship, “was created in September of 2014.” Boardman Decl. ¶ 12; see also
¶ 21 (stating that Compliance, Audit, and Fraud Unit “became involved in the ID [petition
process] in September of 2014”). Further, the procedures relating to the DMV’s name2

change affidavit were already in place before they were codified in the emergency rule
on May 13, 2016. One DMV report reflects use of this procedure on October 9, 2015.
Decl. of Sean Young Ex. 42 at pp.4–5, ECF No. 280. Another report reflects use of this
procedure on December 10, 2015. Id. Ex. 41 at p.2. The only significant change made
by the emergency rules is the requirement that the DMV issue temporary ID card
receipts to those who apply for an ID and enter the ID petition process. The emergency
rules do not appear to have significantly altered the practices that the DMV has been
following since September 2014 for issuing permanent ID cards.
To illustrate this point, I address the three examples that the defendants describe
as outdated in their motion for a stay. First, the defendants point to a case report
reflecting that, in June 2015, the DMV denied an ID to a person after an investigator
with the DMV’s Compliance, Audit, and Fraud Unit (“CAFU”) failed to locate her birth
records.

Young Decl. Ex. 59.

The defendants note that this occurred before the

emergency rules went into effect in May 2016. However, it is clear that at the time of
this denial the DMV was already employing the procedures that would later be codified
in the emergency rules. Specifically, the ID applicant’s case was referred to a CAFU
investigator under the ID petition process, just as it would have been under the
emergency rules. The investigator then attempted to track down the applicant’s birth
records, just as he or she would have under the emergency rules, but was
unsuccessful.

The applicant was unable to produce any other documentation that

would allow the DMV to verify her name, date of birth, and citizenship, and thus the
DMV denied her application for an ID. Nothing in the emergency rules would have
changed this outcome. Under those rules, an applicant must still produce, or a CAFU
investigator must be able to find, some documentation to verify the applicant’s name,
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date of birth, and citizenship. See Emergency Rule 1618, § 8. In cases where this is
not possible, such as the case reflected in Exhibit 59, the applicant will not receive a
permanent ID, will not receive any further temporary ID card receipts, and will be
precluded from voting in any future elections. A safety net is needed to preserve the
voting rights of individuals who find themselves in this situation.
The other two examples that the defendants describe as outdated involved
applicants with name mismatches. In one case, I noted that the DMV had erred by
failing to inform an applicant, in December 2015, that the DMV could notarize his namechange affidavit for free. Young Decl. Ex. 41. The defendants now contend that this
was not an error because at that time the DMV’s free notarization process had not been
established. See Defs.’ Mot. to Stay at 10, ECF No. 297. However, the defendants do
not cite evidence to support the proposition that the free notary service did not exist in
December 2015. See id. And clearly some procedures relating to the name-change
affidavit were in place at that time, as the DMV recorded in its report that it provided a
name-change affidavit to the applicant on December 10, 2015. See Young Decl. Ex. 41
at p.2.

Boardman in her declaration does not suggest that the DMV’s free notary

service was adopted at a different time than when the general name-change affidavit
procedures were adopted. See Boardman Decl. ¶¶ 35–38. Thus, from the evidence
submitted at this point in the case, I find that free notary services were available at the
DMV in December 2015. I also note that the emergency rules do not say anything
about notary services, and thus those rules did not change any of the DMV’s practices
relating to such services.
The remaining example involves a case in which the DMV denied, in January
2016, an ID to an applicant after the applicant’s daughter tried for months to obtain an
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ID for him and eventually gave up after the DMV rejected the name-change affidavit she
had completed on his behalf. Young Decl. Ex. 42. The defendants again note that this
occurred before the emergency rules went into effect. But they do not explain how the
result would have been different under the emergency rules. The applicant used the ID
petition process and the name-change affidavit process, both of which would later be
codified in the emergency rules, and still failed to obtain an ID. The defendants do not
identify any way in which the processing of this ID application would have been different
had it been filed after the effective date of the new rules.
I also note that the plaintiffs’ likelihood of success on the merits would be high
even if some of the specific examples I discussed in my opinion might be handled
differently today. Even under current law, an ID application will be denied unless the
DMV finds “secondary documentation or other corroborating information” establishing
that it is more likely than not that the person’s name, date of birth, and citizenship, as
stated on the person’s application for an ID, is correct. See Emergency Rule 1618, § 8.
Obviously there will be cases in which the DMV is unable to find sufficient
documentation or information on behalf of an applicant. Moreover, as I explained at
length in my original opinion, inevitably other obstacles will arise that prevent individuals
who exercise reasonable effort from obtaining ID. Again, some safety net must be
available to protect the voting rights of these individuals.
In their motion to stay, the defendants also contend that the safety net I created
has the effect of “abrogat[ing]” the elector-challenge procedures established by
Wisconsin law. They refer specifically to Wisconsin Statute § 6.92(1), which provides
that “each inspector shall challenge for cause any person offering to vote whom the
inspector knows or suspects is not a qualified elector or who does not adhere to any
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voting requirement under this chapter,” and to Wisconsin Statute § 6.925, which
provides that “[a]ny elector may challenge for cause any person offering to vote whom
the elector knows or suspects is not a qualified elector.” However, the injunction does
not interfere with these challenge procedures insofar as the procedures allow inspectors
and electors to challenge a voter’s qualifications.

That is, the injunction does not

prohibit anyone from challenging a voter on the ground that he or she is not a U.S.
citizen residing in Wisconsin who is age 18 or older, or on the ground that he or she is
disqualified from voting. See Wis. Stat. §§ 6.02, 6.03 (establishing qualifications for
electors and grounds for disqualification). The injunction thus does not interfere with
§ 6.925 at all, and it interferes with § 6.92(1) only to the extent that it prevents
inspectors from challenging a person who submits an affidavit in lieu of an ID on the
ground that he or she did not produce an ID. Moreover, nothing in my order prevents
an inspector or another elector from challenging a voter on the ground that the voter is
not the person he or she claims to be. Under the order, only the sufficiency of the
reason given by the voter for being unable to obtain ID is not subject to challenge.
Accordingly, the injunction interferes with Wisconsin’s challenge procedures only as
much as is necessary to provide the plaintiffs with effective relief.
Finally, I address the defendants’ argument under Purcell v. Gonzalez, 549 U.S.
1 (2006). That case is generally cited for the proposition that courts should be reluctant
to issue orders affecting a state’s election procedures when an election is imminent.
The rationale underlying this proposition is that orders issued very close to an election
may “result in voter confusion and consequent incentive to remain away from the polls.”
Id. at 4–5. However, the November election is more than three months away, and as I
explained in my opinion granting the injunction, it will not be difficult for the defendants
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to implement the affidavit option in time for that election. Indeed, the defendants have
already begun to implement the affidavit option. See Wis. Elec. Comm’n Mem. re:
Photo ID Litigation (July 20, 2016), available at http://goo.gl/yJdEGp (viewed July 29,
2016). Thus, the risk of voter confusion is very low. That low risk does not outweigh
the risk of irreparable harm to the plaintiffs that would arise if the affidavit option were
not available for the November election, especially once the plaintiffs’ strong likelihood
of success on the merits is factored into the balance, as it must be. See In re A&F
Enters., Inc. II, 742 F.3d at 766.
For these reasons, IT IS ORDERED that the defendants’ motion for a stay
pending appeal is DENIED.
Dated at Milwaukee, Wisconsin, this 29th day of July, 2016.
s/ Lynn Adelman
______________________
LYNN ADELMAN
District Judge

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