Jones et al v. Deininger et al

Filing 142

DECISION AND ORDER signed by Judge Lynn Adelman on 8/13/14 denying 133 Motion to Stay Pending Appeal. (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-CV-01128

SCOTT WALKER, in his official capacity as
Governor of the State of Wisconsin, et al.,
Defendants.

LEAGUE OF UNITED LATIN AMERICAN
CITIZENS (LULAC) OF WISCONSIN, et al.,
Plaintiffs,
v.

Case No. 12-CV-00185

JUDGE DAVID G. DEININGER, et al.,
Defendants.

DECISION AND ORDER
In this decision and order, I address the defendants’ motion for a stay pending
appeal of my order of April 29, 2014, in which I permanently enjoined the defendants from
conditioning a person’s access to a ballot on that person’s presenting a form of photo
identification. See Fed. R. Civ. P. 62(c) & Fed. R. App. P. 8(a)(1). The standard for
granting a stay pending appeal mirrors that for granting a preliminary injunction. In re A
& F Enterprises, Inc. II, 742 F.3d 763, 766 (7th Cir. 2014).

Stays, like preliminary

injunctions, are necessary to mitigate the damage that can be done during the interim
period before a legal issue is finally resolved on the merits. The goal is to minimize the
costs of error. Id. To determine whether to grant a stay, I must 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.
A.

Likelihood of Success on the Merits
On appeal, the defendants argue that I misinterpreted the law applicable to the

plaintiffs’ claims under the Fourteenth Amendment and Section 2 of the Voting Rights Act.
In general, the law applicable to such claims is unsettled, and thus I acknowledge that the
defendants have some likelihood of success on the merits. However, having considered
the specific arguments that the defendants raise in their motion for a stay, I conclude that
their likelihood of success on the merits is low. I discuss these arguments below, as well
as the defendants’ argument that the scope of the injunction is too broad.
1.

Fourteenth Amendment

In their motion for a stay pending appeal, the defendants initially argued that my
disposition of the plaintiffs’ Fourteenth Amendment claim is likely to be reversed because
I made three errors: (1) deciding the claim when my disposition of the plaintiffs’ claim under
the Voting Rights Act made it unnecessary to do so, Mot. to Stay at 7; (2) enjoining the law
as to all voters when I found that the law placed an unjustified burden on only a subgroup
of voters, id. at 8; and (3) giving insufficient weight to the state’s interest in preventing or
deterring voter-impersonation fraud, id. at 9–10.

In a recent letter, the defendants raise

a fourth argument: that the decision of the Wisconsin Supreme Court in Milwaukee Branch

2

of the NAACP v. Walker, 2014 WI 98, __ Wis. 2d __, indicates that “Act 23 is lawful.”
Letter of Aug. 1, 2014, at 1. I address each argument in turn.
First, in my original order, I acknowledged that, given my resolution of the plaintiffs’
claim under the Voting Rights Act, I could have declined to resolve the Fourteenth
Amendment claim. Dec. & Order at 2–3. But as I explained, the two claims overlap
substantially, in that many of the factual findings I made at the conclusion of a nearly twoweek trial were relevant to both claims, and therefore it would have been inefficient to
resolve the claim under the Voting Rights Act but not the claim under the Fourteenth
Amendment. Id. The defendants do not fully develop their argument that this approach
constituted reversible error; instead, they merely assert in conclusory fashion that the
decision to address the Fourteenth Amendment claim was error. Mot. to Stay at 7. Thus,
I see no reason to think that the defendants are likely to succeed on this argument on
appeal.
The defendants’ second argument is that I should not have enjoined the photo-ID
requirement in its entirety because I found that many Wisconsin voters already have a
qualifying ID and thus will not experience unjustified burdens. The defendants suggest that
I should have fashioned some other remedy that was limited to the voters who will
experience the unjustified burdens that I identified. Mot. to Stay at 8. But as I explained
in my original order, there is no practicable way to remove the unjustified burdens on the
voters who do not currently possess an ID without enjoining the photo ID requirement as
to all voters. Dec. & Order at 38–39. Indeed, the defendants did not, in their post-trial
brief, identify any practicable remedy short of enjoining Act 23 in its entirety, and they do

3

not, in their motion for a stay pending appeal, identify any such remedy. Thus, I conclude
that the defendants are not likely to succeed on this argument.
The defendants’ third argument is that my “application of the Anderson/Burdick
balancing test was incorrect”1 because I “gave insufficient weight to the legitimate and
important state interests that the Supreme Court recognized in Crawford.”2 Mot. to Stay
at 9. Specifically, the defendants contend that I gave insufficient weight to the state’s
interest in preventing and deterring voter-impersonation fraud. They argue that Crawford
establishes that a state has a “legitimate and important interest” in preventing and deterring
voter-impersonation fraud even in the absence of evidence that such fraud has occurred.
Mot. to Stay at 9. I agree that Crawford generally establishes that a state has a legitimate
and important interest in preventing or deterring voter-impersonation fraud, even in the
absence of evidence that such fraud has occurred. But Crawford does not hold that a
court may not consider the evidence (or lack thereof) that such fraud has occurred when
deciding how much weight to assign to that particular interest under the Anderson/Burdick
balancing test. If the evidence shows that voter-impersonation fraud is prevalent, then the
state’s interest in preventing and deterring such fraud may be “sufficiently weighty to justify”
the burdens placed on the rights of individual voters. Crawford, 553 U.S. at 191 (quoting
Norman v. Reed, 502 U.S. 279, 288–89 (1992)). But if the evidence shows that voterimpersonation fraud is rare or nonexistent, then the state’s interest is assigned less weight.
In the present case, the evidence showed that virtually no voter-impersonation fraud occurs
1

Anderson v. Celebrezze, 460 U.S. 780 (1983); Burdick v. Takushi, 504 U.S. 428

(1992).
2

Crawford v. Marion County Elec. Bd., 553 U.S. 181 (2008).
4

in Wisconsin and that it is unlikely to become a problem in the foreseeable future. For
these reasons, I determined that the state’s interest in preventing or deterring voterimpersonation fraud was insufficiently weighty to justify the burdens Act 23 placed on a
substantial number of voters. The defendants have not shown that this application of the
Anderson/Burdick balancing test was erroneous.
The defendants remaining argument concerning the Fourteenth Amendment claim
is that the Wisconsin Supreme Court’s decision in Milwaukee Branch of the NAACP v.
Walker, establishes that Act 23 is lawful. In their letter to me, the defendants do not
expand on this argument, but in their appellate filings, they argue that the state supreme
court’s construction of an administrative regulation “will eliminate the potential financial
burden that many voters who lack a birth certificate might experience when obtaining a free
ID card from the DMV.” Consol. Reply Br. of Defendants-Appellants at 5. To explain the
defendants’ argument, I must first briefly discuss the relevant part of NAACP v. Walker.
The Wisconsin Supreme Court began its discussion of the administrative regulation
at issue here by noting that, at the state trial-court level, the plaintiffs provided evidence
that they were required to make payments to government agencies to obtain certain
primary documents, such as birth certificates, that the division of motor vehicles (“DMV”)
requires them to produce in order to obtain free state ID cards for voting. NAACP, 2014
WI 98, ¶¶ 50 & 52, __ Wis. 2d __. The court then determined that the DMV’s requiring a
person to produce a document that he or she cannot obtain without making a payment to
a government agency resulted in a severe burden on the right to vote. Id. ¶¶ 60–62. In
an effort to eliminate this severe burden, the court construed a regulation of the Wisconsin
Department of Transportation that granted the administrator of the DMV discretion to issue
5

state ID cards to persons who could not produce a birth certificate or other specifically
identified document as proof of name and date of birth. Id. ¶¶ 66–71. That regulation
states that if a person is “unable” to provide a birth certificate or other specifically identified
document, and such documents are “unavailable” to the person, the person may make a
written petition to the administrator of the DMV for an exception to the requirement to
produce a birth certificate or similar document. Wis. Admin. Code § Trans 102.15(3)(b)
& (c).3 Under the Wisconsin Supreme Court’s construction of this regulation, a person is
“unable” to provide a birth certificate or similar document, and such documents are
“unavailable” to the person, “so long as [the person] does not have the documents and
would be required to pay a government agency to obtain them.” NAACP, 2014 WI 98,
¶ 69.

3

The full text of § Trans 102.15(3)(b) & (c) provides as follows:

(b) If a person is unable to provide documentation under [§ Trans
102.15(3)(a)], and the documents are unavailable to the person, the person
may make a written petition to the administrator of the division of motor
vehicles for an exception to the requirements of par. (a). The application
shall include supporting documentation required by sub. (4) and:
1. A certification of the person’s name, date of birth and current
residence street address on the department’s form;
2. An explanation of the circumstances by which the person is unable
to provide any of the documents described in par. (a); and
3. Whatever documentation is available which states the person’s
name and date of birth.
(c) The administrator may delegate to the administrator’s subordinates the
authority to accept or reject such extraordinary proof of name and date of
birth.
6

Under the Wisconsin Supreme Court’s construction of this regulation, then, a person
is entitled to petition for an exception to the birth-certificate requirement if the person
cannot obtain a birth certificate without paying a fee to a government agency. But this
does not mean that the person will be able to obtain a free state ID for voting without
producing a birth certificate. This is so because, under the regulation at issue, a person
must still provide “[w]hatever documentation is available which states the person’s name
and date of birth,” Wis. Admin. Code § Trans 102.15(3)(b)3., and then the administrator,
in his or her discretion, may accept or reject “such extraordinary proof of name and date
of birth,” id. § Trans 102.15(3)(c). There is no guidance in the regulation that indicates
what kind of documentation might constitute “extraordinary proof of name and date of birth”
or what factors the administrator should consider when exercising his or her discretion to
determine whether the documentation the person has produced constitutes extraordinary
proof. In NAACP, the Wisconsin Supreme Court did not provide any guidance to the
administrator concerning the meaning of “extraordinary proof” or set forth any standard that
might guide the exercise of the administrator’s discretion. Instead, the court offered this
cryptic instruction: “the administrator, or his or her designee, shall exercise his or her
discretion in a constitutionally sufficient manner.” 2014 WI 98, ¶ 70.
Another problem is that it is not clear how members of the public who need to obtain
a free state ID will learn that the DMV now has discretion to issue IDs to persons who
cannot obtain birth certificates without paying fees to government agencies. At the trial in
this case, the plaintiffs demonstrated that the DMV does not publicize its exception
procedure, which involves using Form MV3002, because the DMV wants to minimize
exceptions. Dec. & Order at 32–33 n. 17. In light of this evidence, I concluded that a
7

person who might need an exception is more likely to give up trying to get an ID than to be
granted an exception. Id. at 32–36 & n.17. Nothing in the supreme court’s decision
requires the DMV to do a better job of informing the public that the MV3002 procedure
exists.
Thus, from the mere fact that a person may petition for an exception to the birthcertificate requirement if the person cannot obtain a birth certificate without paying a fee
to a government agency, it does not follow that the person will actually obtain a free ID card
without producing a birth certificate, and so the defendants have not shown that the
Wisconsin Supreme Court’s construction of § Trans 102.15(3)(b) and (c) “will eliminate the
potential financial burden that many voters who lack a birth certificate might experience
when obtaining a free ID card from the DMV.” Consol. Reply Br. of Defendants-Appellants
at 5. In any event, having to pay a fee to obtain a birth certificate is only one of many
burdens that a person who needs to obtain an ID for voting purposes might experience.
See Dec. & Order at 29–36. So even if I assumed that the supreme court’s construction
of § Trans 102.15(3)(b) and (c) eliminates the burden of having to pay a fee to obtain a
birth certificate or similar document, I could not conclude that the burdens Act 23 places
on the right to vote have been lessened to such a degree that the state’s interests are now
sufficient to justify them. Accordingly, the state supreme court’s decision does not
significantly increase the defendants’ likelihood of success on the Fourteenth Amendment
claim.
2.

Section 2 of the Voting Rights Act

The defendants argue that my disposition of the plaintiffs’ Section 2 claim is likely
to be reversed for two reasons: (1) I incorrectly determined that the LULAC plaintiffs have
8

“statutory standing,” and (2) my interpretation of how Section 2 applies in a “vote denial”
case was erroneous. I have already addressed the statutory-standing argument twice and
will not discuss it further, except to note that even if the defendants prevail on this
argument on appeal, they will not succeed in reversing my disposition of the Section 2
claim, as the Frank plaintiffs unquestionably have statutory standing.4
With respect to my interpretation of Section 2, the defendants argue that I am likely
to be reversed because my interpretation “would potentially invalidate other laws not
reasonably subject to challenge, such as voter registration laws.” Mot. to Stay at 11. The
defendants argue that my interpretation has the potential to invalidate voting practices that
are unquestionably legitimate (or, in their words, “not reasonably subject to challenge”) if
they have disproportionate impacts on the poor, as a greater percentage of minorities than
whites are poor, and this is due to the history of discrimination against minorities. The
suggestion is that my interpretation will lead to an absurd result by invalidating laws that
Congress, in passing Section 2, could not have intended to invalidate.

But what

unquestionably legitimate voting practice is likely to have a disproportionate impact on the
poor? In their motion to stay, the defendants point to voter registration, but they do not
explain how voter registration is likely to have a disproportionate impact on the poor. In
their appellate filings, the defendants point to “all existing voting practices that require inperson voting” by giving the following example:

4

The defendants suggest that if it is determined on appeal that the LULAC plaintiffs
lack statutory standing, then any evidence presented by the LULAC plaintiffs will need to
be “subtracted” from the evidence at trial. Mot. to Stay at 16. However, at trial, the
defendants stipulated that any evidence offered by the LULAC plaintiffs would also be
considered evidence offered by the Frank plaintiffs, and vice versa. Tr. at 7.
9

[A]ssume that a plaintiff could prove that minority voters are less likely to own
automobiles than white voters. Further assume that this is because
minorities are more likely to be poor and that the higher rate of poverty
among minorities is the result of historical or current societal discrimination.
Under the district court’s analysis, all existing voting practices that require inperson voting may constitute a violation of Section 2 because in-person
voting is more difficult without an automobile.
Consol. Reply Br. at 18.

Here, however, the final premise of the defendants

argument—that in-person voting is more difficult without an automobile—is likely false.
Based on the evidence presented at trial, I can conclude that lower-income minorities,
especially those who do not own automobiles, are likely to live in urban areas, where it is
easier to walk to a polling place than to drive. So it is very difficult to envision a plaintiff
using disparities in rates of automobile ownership as a basis for challenging an existing
voting practice that requires a person’s presence at the polls.
In any event, even if it could be shown that an unquestionably legitimate voting
practice would have a disproportionate impact on the poor, and therefore on minorities,
that practice would not necessarily be invalidated under my interpretation of Section 2. As
I noted in my original decision, if the voting practice was clearly necessary to protect an
important state interest—an interest that is not “tenuous”—that voting practice could be
sustained even if it has a disproportionate impact on minorities. Dec. & Order at 67–68.
Any voting practice that could be described as “unquestionably legitimate” or “not
reasonably subject to challenge” will almost certainly be clearly necessary to protect an
important state interest. Consequently, I conclude that there is no merit to the defendants’
argument that my interpretation of Section 2 will lead to results that Congress did not
intend.

10

The defendants also argue that it was error for me to cite Justice Scalia’s dissenting
opinion in Chisom v. Roemer, 501 U.S. 380 (1991), in the course of interpreting Section 2.
The defendants make the obvious point that a dissent has no precedential value. But I did
not cite Justice Scalia’s dissent for its precedential value. I cited it because it illuminates
the plain meaning of Section 2: it shows that I am not the only jurist to have read the text
of Section 2 and come to the conclusion that it means that a state may not adopt a voting
practice that makes it more difficult for minorities to vote than whites. The defendants also
note that Justice Scalia’s dissent was part of a “vote dilution” case, not a vote-denial case.
But even though that is true, it does not alter the fact that the example Justice Scalia
gave—a county’s making it more difficult for Blacks to register to vote than
whites—involved vote denial rather than vote dilution. Indeed, Justice Scalia himself
described his example as involving a “nondilution § 2 violation[].” Chisom, 501 U.S. at 408
(emphasis in original). So the dissent is instructive on the meaning of Section 2 as applied
to a vote-denial claim.
The defendants also argue that I should have upheld Act 23 under Section 2
because Act 23 does not cause any of the racial disparities I identified, such as the
disparity in poverty rates for whites and minorities and the resulting disparity in IDpossession rates. But although Act 23 does not cause these disparities, it clearly interacts
with them in a way that makes it harder for minorities to vote. And it is this interaction with
the effects of discrimination that produces a discriminatory result.5 Thornburg v. Gingles,
5

Some of the classic practices used to prevent minorities from voting—literacy tests
and poll taxes—did not, by themselves, cause the underlying disparities that allowed the
practices to effectively suppress minority voting. Literacy tests did not cause illiteracy; they
exploited the fact that, because of the effects of discrimination, Blacks were less likely to
11

478 U.S. 30, 47 (1986) (“The essence of a § 2 claim is that a certain electoral law, practice,
or structure interacts with social and historical conditions to cause an inequality in the
opportunities enjoyed by black and white voters to elect their preferred representatives.”
(Emphasis added)).6 The Ninth Circuit has specifically rejected the idea that a voting
practice that produces a disproportionate racial impact may survive scrutiny under
Section 2 so long as the voting practice, by itself, is not responsible for any underlying
racial disparities. See Farrakhan v. Washington, 338 F.3d 1009, 1016–20 (9th Cir. 2003).
As the court stated, “demanding ‘by itself’ causation would defeat the interactive and
contextual totality of the circumstances analysis repeatedly applied by [other] circuits in
Section 2 cases, as they also require a broad, functionally-focused review of the evidence
to determine whether a challenged voting practice interacts with surrounding racial
discrimination in a meaningful way or whether the practice's disparate impact ‘is better
explained by other factors independent of race.’” Id. at 1018 (quoting Smith v. Salt River
Agric. Improvement & Power Dist., 109 F.3d 586, 591 (9th Cir. 1997)). The court
continued:
Certainly, plaintiffs must prove that the challenged voter qualification denies
or abridges their right to vote on account of race, but the 1982 Amendments
and subsequent case law make clear that factors outside the election system
can contribute to a particular voting practice's disparate impact when those

be able to read than whites. Likewise, poll taxes did not cause poverty; they exploited the
fact that, because of the effects of discrimination, Blacks were more likely to be poor than
whites.
6

Although Thornburg was a vote-dilution case, not a vote-denial case, the Court did
not limit the language I have quoted to vote-dilution cases. Rather, the Court made clear
that Section 2 applies to vote-denial cases as well as vote-dilution cases, id. at 478 U.S.
at 45 n.10, and the quoted language identifies “the essence of a Section 2 claim,” not the
essence of a vote-dilution claim.
12

factors involve race discrimination. Therefore, under Salt River and
consistent with both Congressional intent and well-established judicial
precedent, a causal connection may be shown where the discriminatory
impact of a challenged voting practice is attributable to racial discrimination
in the surrounding social and historical circumstances.
Id. at 1019 (emphasis added).7 In other words, the question in a Section 2 case is whether
the challenged practice magnifies or exacerbates an existing racial disparity caused by
discrimination in other areas, thereby importing the effects of that discrimination into the
electoral process. In the present case, the evidence showed that discrimination in areas
such as employment, housing, and education caused higher poverty rates for minorities
than for whites, with the result that a greater percentage of the minority population lacks
a photo ID and will have more difficulty obtaining an ID. Act 23 thus imports the effects of
discrimination in these areas into the electoral process and produces a discriminatory
result.
The defendants also contend that my interpretation of Section 2 is incorrect because
my interpretation “focuses not on causation but on mere likelihood.” Mot. to Stay at 12.
This is in reference to the following language in my opinion: “Section 2 protects against a
voting practice that creates a barrier to voting that is more likely to appear in the path of a
voter if that voter is a member of a minority group than if he or she is not.” Dec. & Order
at 52. The defendants argue that my interpretation focuses on whether a voting practice
“could potentially create more difficulty for minorities to vote than non-minorities,” rather

7

In Farrakhan v. Gregoire, 623 F.3d 990 (9th Cir. 2010), the en banc court found that
the voting practice at issue in the Farrakhan case I cited in the text—a felon
disenfranchisement law—did not violate Section 2. However, the court did not disturb the
holding that a Section 2 analysis requires consideration of factors external to the
challenged voting mechanism itself. See 623 F.3d at 995 (Thomas, J., concurring).
13

than on whether it actually creates more difficulty for minorities to vote than non-minorities.
Mot. to Stay at 13 (emphasis in original). This is wrong. Under my interpretation, a voting
practice violates Section 2 only when it actually creates more difficulty for minorities to
vote. And I found that Act 23 actually creates more difficulty for minorities to vote than
non-minorities, in that Act 23 will prevent or deter a greater percentage of minorities from
voting than whites. Dec. & Order at 61–63. The phrase “more likely than whites” (and
related phrases) refers to the fact that although not every minority will be deterred or
prevented from voting, a greater percentage of minorities will be deterred or prevented
from voting than whites. Perhaps what the defendants mean to argue is that a voting
practice does not violate Section 2 unless it prevents or deters every member of a racial
group from voting. But there is no support for this narrow view of Section 2. The text
states that a violation of Section 2 occurs when the political process is not “equally open
to participation” by members of a minority group in that its members “have less opportunity
than other members of the electorate to participate in the political process and to elect
representatives of their choice.” 42 U.S.C. § 1973(b). If a voting practice will prevent or
deter a greater percentage of minorities from voting than whites, the political process is not
“equally open to participation” by minorities, in that they will not have the same opportunity
as whites to participate in the political process and to elect representatives of their choice.
Finally, the defendants argue that because my conclusion that Act 23 violates
Section 2 depends on the premise that a greater percentage of minorities than whites are
poor, I have turned income or wealth into a protected class. That is incorrect. I concluded
that Act 23 produces a discriminatory result because it interacts with the effects of racial
discrimination, including higher poverty rates for minorities than for whites. If the reason
14

a greater percentage of minorities than whites in Wisconsin are poor were unrelated to
racial discrimination, then showing that minorities are more likely than whites to be poor
would not have been sufficient to show that Act 23 produces a discriminatory result. Thus,
the root cause of Act 23's disproportionate impact is discrimination on account of race, not
income or wealth.
3.

Scope of Injunction

The defendants’ final argument is that I issued a permanent injunction that is
impermissibly broad, in that I enjoined the defendants from enforcing any requirement to
produce a photo ID to gain access to a ballot, not simply the photo-ID requirement
embodied in Act 23. Importantly, however, I stated that if the State of Wisconsin enacted
a new photo-ID law, the defendants could file a motion for relief from the permanent
injunction, and that I would schedule expedited proceedings on any such motion, if
necessary. Dec. & Order at 69. The defendants contend that I would have no jurisdiction
to hear such a motion while an appeal from the order granting the original injunction was
pending, because ordinarily a district court loses jurisdiction over a case between the time
a notice of appeal is filed and the time the mandate issues. However, Federal Rule of Civil
Procedure 62(c) states that while an appeal from an order granting an injunction is
pending, the district court may modify the injunction. Moreover, to the extent there were
any doubt over whether I would have jurisdiction to consider a motion to modify the
injunction, the procedure outlined in Federal Rule of Civil Procedure 62.1 and Federal Rule
of Appellate Procedure 12.1 would apply. These rules provide that if a timely motion is
made in the district court for relief that the district court lacks authority to grant because an
appeal is pending, the district court may inform the court of appeals that it would grant the
15

motion (or that the motion raises a substantial issue), and then the court of appeals may
remand the case to the district court for a ruling on the motion. Thus, if the State of
Wisconsin enacts a new photo-ID law, the defendants are not precluded from seeking relief
from the present injunction.
With respect to the question of whether I erred in enjoining the defendants from
enforcing any photo-ID requirement, not just Act 23, I first note that even if this were error,
it would not be grounds for staying my order pending appeal. If the court of appeals
concludes that the injunction is impermissibly broad, the court will not reverse my order in
its entirety. Rather, the court will vacate the injunction and remand with instructions to
enter an injunction limited to Act 23. See PepsiCo, Inc. v. Redmond, 54 F.3d 1262, 1272
(7th Cir. 1995) (stating that court of appeals will “restrict the breadth” of an overbroad
injunction). Thus, the argument that the injunction is too broad does not support the
defendants’ motion for a stay pending appeal. At best, it is an argument that supports
modifying the injunction pending appeal, which the defendants have not asked me to do.
In any event, the defendants have not shown that I erred in enjoining them from
enforcing any photo-ID requirement, not just Act 23. An injunction “must . . . be broad
enough to be effective, and the appropriate scope of the injunction is left to the district
court's sound discretion.” Russian Media Group. LLC v. Cable America, Inc., 598 F.3d
302, 307 (7th Cir. 2010). To make an injunction effective, a district court may enjoin
“similar conduct reasonably related to” the violation established in the litigation. EEOC v.
AutoZone, Inc., 707 F.3d 824, 841 (7th Cir. 2013). In the present case, I concluded that
to render the injunction effective, it was necessary to enjoin similar conduct reasonably
related to the enforcement of Act 23. While the present case was under consideration, the
16

Wisconsin Assembly adopted an amendment to Act 23, and the state’s governor
announced that he would call a special session of the legislature to modify Act 23 in the
event that the courts did not uphold it. Now, it is possible that the state could make
changes to Act 23 that result in its surviving scrutiny under the Voting Rights Act and the
Fourteenth Amendment. However, given the evidence presented during the trial, it
seemed doubtful that the kind of changes being discussed at the time would have had that
result. Thus, to prevent the defendants from circumventing the injunction by enforcing a
new photo-ID requirement that continued to place unjustified burdens on a substantial
number of voters and that produced a discriminatory result, I enjoined the defendants from
enforcing any photo-ID requirement, not just Act 23 as it then existed, until such time as
it could be determined whether the new law removed the unjustified burdens and
discriminatory result. In my discretion, I determined that an injunction of this breadth was
necessary to render the relief afforded to the plaintiffs effective.
The defendants contend that, although a district court has authority to enjoin a
defendant from engaging in conduct that is similar to the conduct found to be unlawful in
the litigation, I abused my discretion by imposing a remedy that could be likened to the
preclearance requirement of Section 5 of the Voting Rights Act, which the Supreme Court
addressed in Shelby County v. Holder, __ U.S. __, 133 S. Ct. 2612 (2013). But the
preclearance requirement of Section 5 prevents a covered jurisdiction from enforcing any
changes to state election law until they have been precleared by the federal government.
Id. at 2624. The injunction I issued allows the State of Wisconsin to enforce any changes
to its election law that it wants, so long as the law at issue does not require a person to
present a photo ID as a condition to receiving a ballot. Nothing in Shelby County suggests
17

that once a specific voting practice has been shown to be unlawful under Section 2, a court
may not enjoin a state from adopting a similar voting practice without first seeking relief
from the injunction. Thus, the defendants’ reliance on Shelby County is misplaced.
B.

Irreparable Harm and the Public Interest
The other factors that I must consider when deciding whether to stay an injunction

pending appeal are 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.
The irreparable harm that will result to the defendants if the stay is denied in error is tied
to the interests the defendants put forward to justify Act 23 in the first place: preventing inperson voter-impersonation fraud and promoting public confidence in the integrity of the
electoral process. But as I found in deciding this case on the merits, there is virtually no
in-person voter-impersonation fraud in Wisconsin, and there is no evidence that laws such
as Act 23 promote public confidence in the integrity of the electoral process. Thus, if a stay
pending appeal is denied in error, the defendants would suffer very little irreparable
harm—almost certainly no in-person voter-impersonation fraud will have occurred during
the time that the appeal was pending, and the public’s confidence in the integrity of the
electoral process will not have declined.
On the other side of the balance, the irreparable harm that the plaintiffs would suffer
if a stay were granted in error would be significant. To begin with, some of the named
individual plaintiffs, including Shirley Brown and Eddie Lee Holloway, Jr., would be unable
to vote during any election that occurred while the stay was in effect, as they lack a photo
ID and have been unable to obtain a photo ID. Similarly, many members and individuals
represented by the organizational plaintiffs in the LULAC case would be prevented or
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deterred from voting because of Act 23. Finally, under the public-interest factor, I take into
account the fact that a large number of individuals who are not parties to this case and who
might not be represented by any of the LULAC organizations would also be prevented or
deterred from voting if Act 23 were reinstated pending appeal.
In short, in balancing the potential for irreparable harm to each party, I reiterate my
finding that “it is absolutely clear that Act 23 will prevent more legitimate votes from being
cast than fraudulent votes.” Dec. & Order at 38. Thus, the balance of the harms weighs
against a stay pending appeal.
C.

Sliding Scale
Having found that the defendants’ likelihood of success on appeal is low, that the

defendants would suffer very little irreparable harm if a stay pending appeal were denied
in error, and that the plaintiffs and members of the public would suffer significant
irreparable harm if a stay pending appeal were granted in error, I conclude that, under the
sliding-scale approach, I should not stay the permanent injunction pending appeal.
CONCLUSION
For the reasons stated, IT IS ORDERED that the defendants’ motion for a stay
pending appeal is DENIED.
Dated at Milwaukee, Wisconsin, this 13th day of August 2014.
s/ Lynn Adelman
_______________________
LYNN ADELMAN
District Judge

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