Frank et al v. Walker et al
Filing
325
DECISION AND ORDER signed by Judge Lynn Adelman on 11/10/16 that the plaintiffs motion for leave to file a supplemental complaint is GRANTED. Further ordering that the plaintiffs motion for a temporary restraining order is DENIED. (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
In this suit challenging Wisconsin’s photo identification law, 2011 Wis. Act 23, the
plaintiffs have moved for leave to file a supplemental complaint adding Andrew Voegele
as a plaintiff to this case, as well as for a temporary restraining order requiring the
defendants to count the provisional ballot that Voegele cast in Wisconsin on November
8, 2016.
According to Voegele’s declaration, he is a citizen of the United States, is 18
years of age or older, and resides in Prescott, Wisconsin, which is on the border
between Minnesota and Wisconsin. He moved to Prescott from Minneapolis in August
2016. Voegele continues to work in Minnesota, and he commutes to work by car every
weekday. He also visits Minnesota frequently and drives while there. On November 8,
2016, Voegele arrived at his polling place in Prescott, registered to vote, and attempted
to cast a ballot. However, he did not have a form of photo identification required by
Wisconsin’s photo ID law. Voegele then cast a provisional ballot. Under Wisconsin law,
for this ballot to be counted, he must present an acceptable form of photo ID to the
municipal clerk by 4 p.m. on Friday, November 11, 2016. See Wis. Stat. § 6.97(3)(b).
1
However, Voegele does not currently possess any form of acceptable ID. Although he
could obtain either a Wisconsin driver’s license or a free Wisconsin state identification
card, which are acceptable forms of ID under the photo ID law, he does not want to
obtain either of these forms of ID, because, under Wisconsin law, to obtain these forms
of ID, he would have to surrender his Minnesota driver’s license. Voegele states that he
does not want to surrender his Minnesota driver’s license because, although he intends
to reside in Wisconsin for the foreseeable future, he still drives in Minnesota and may
decide to return there some day.
Voegele contends that requiring him to surrender his Minnesota driver’s license
to obtain either a Wisconsin driver’s license or a Wisconsin state ID card imposes an
undue burden on his right to vote and thus violates the Constitution as it was
understood in decisions such as Anderson v. Celebrezze, 460 U.S. 780 (1983), and
Burdick v. Takushi, 504 U.S. 428 (1992)).
He seeks leave to file a supplemental
complaint and join this case, as well as a temporary restraining order requiring the
defendants to count his provisional ballot even if he does not present an acceptable
form of photo ID to the municipal clerk by 4p.m. on Friday. The defendants oppose
these motions.
First, I conclude that the motion to file a supplemental complaint should be
granted. Under Federal Rule of Civil Procedure 15(d), a court may permit a party to
serve a supplemental pleading setting out claims arising out of any transaction,
occurrence, or event that happened after the date of the pleading to be supplemented.
Here, Voegele’s claim relates to the overarching issues to be decided in this litigation,
namely, whether the photo ID law imposes undue burdens on the voting rights of
individuals facing certain specific barriers to obtaining ID. Further, it would conserve
2
judicial resources to fold Voegele’s claim into this suit rather than require him to file an
entirely separate suit. Accordingly, I will accept the supplemental complaint.
Next, I address Voegele’s motion for a temporary restraining order. A request for
a temporary restraining order is governed by Federal Rule of Civil Procedure 65, and
the standard for deciding whether to grant one is similar to that for granting a
preliminary injunction. Thus, to obtain relief, Voegele must demonstrate: (1) a likelihood
of success on the merits, (2) that he is likely to suffer irreparable harm in the absence of
preliminary relief, (3) that the balance of harms tips in his favor, and (4) that an
injunction is in the public interest. See, e.g., Korte v. Sebelius, 735 F.3d 654, 665 (7th
Cir. 2013). As explained below, Voegele has not shown a likelihood of success on the
merits. For this reason, I do not consider the other factors.
Voegele does not contend that, if he tried, he would be unable to obtain a free
Wisconsin state ID card or a Wisconsin driver’s license in time to validate his provisional
ballot by 4 p.m. on Friday. Thus, the only obstacle to Voegele’s obtaining acceptable ID
in time to validate his provisional ballot is his unwillingness to surrender his Minnesota
driver’s license. 1
However, Voegele states in his declaration that he resides in
Wisconsin and intends to do so indefinitely.
Decl. ¶ 7, ECF No. 321-1.
Under
Wisconsin law, a resident of the state cannot legally operate a motor vehicle in the state
unless he or she has been issued a Wisconsin driver’s license.
See Wis. Stat.
§ 343.05(3)(a) & (4)(b)1; see also Wis. Stat. § 343.01(2)(g) (defining “resident” for
1
Voegele states in is declaration that he does not wish to pay the $34 fee that
Wisconsin charges when it issues a Wisconsin driver’s license. However, as I explain in
the text, Voegele must pay that fee if he wishes to continue driving in Wisconsin
regardless of whether he also wishes to vote in Wisconsin. Thus, the fee is not a
burden on his voting rights.
3
purposes of motor-vehicle code as “an adult whose one home and customary and
principal residence, to which the person has the intention of returning whenever he or
she is absent, is in this state”). Thus, Voegele cannot legally drive in Wisconsin unless
he obtains a Wisconsin driver’s license and surrenders his Minnesota license. Although
Voegele wishes to drive in both Minnesota and Wisconsin, he does not contend that a
Wisconsin resident possessing a valid Wisconsin driver’s license cannot legally drive in
Minnesota without also possessing a Minnesota driver’s license. Thus, Voegele has no
valid reason to possess both a Wisconsin driver’s license and a Minnesota driver’s
license. If Voegele no longer wishes to drive in Wisconsin, he may obtain a free state
ID card. Although Voegele would have to surrender his Minnesota driver’s license in
order to obtain the free state ID card, he does not contend that he intends to drive in
Minnesota but not drive in Wisconsin. Nor does he contend that, if he surrendered his
Minnesota driver’s license and later decided to return to Minnesota and drive there, it
would be difficult to obtain a new Minnesota driver’s license. Thus, Voegele has no
valid reason to possess both a Wisconsin state ID card and a Minnesota driver’s
license.
In light of the above, I do not see any way in which requiring Voegele to
surrender his Minnesota driver’s license to obtain either a free Wisconsin state ID card
or a Wisconsin driver’s license could be thought to impose an undue burden on his right
to vote. Therefore, Voegele has not shown that he is likely to succeed on the merits of
his claim.
Accordingly, IT IS ORDERED that the plaintiffs’ motion for leave to file a
supplemental complaint is GRANTED.
4
IT IS FURTHER ORDERED that the plaintiffs’ motion for a temporary restraining
order is DENIED.
Dated at Milwaukee, Wisconsin, this 10th day of November, 2016.
s/ Lynn Adelman
______________________
LYNN ADELMAN
District Judge
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?