Common Cause et al v. Thomsen, Mark et al
Filing
51
ORDER staying a decision on the parties' motions for summary judgment until after the November 3, 2020 presidential election; and canceling the oral argument scheduled for September 24, 2020. Signed by District Judge James D. Peterson on 9/23/2020. (jls)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
COMMON CAUSE, COMMON CAUSE
WISCONSIN, and BENJAMIN R. QUINTERO,
Plaintiffs,
v.
MARK L. THOMSEN, ANN S. JACOBS,
BEVERLY R. GILL, JULIE M. GLANCEY,
DEAN KNUDSON, MARGE BOSTELMANN,
ROBERT F. SPINDELL, JR., in their
official capacities as Commissioners of the
Wisconsin Elections Commission, and
MEAGAN WOLFE, in her official capacity
as the Administrator of the
Wisconsin Elections Commission,
OPINION and ORDER
19-cv-323-jdp
Defendants.
Plaintiffs Common Cause, Common Cause Wisconsin, and Benjamin Quintero
challenge state-law restrictions on the use of college student IDs for voting. Under Wisconsin
law, college IDs can be used for voting only if they display: (1) an issuance date, (2) an
expiration date, (3) an expiration date not more than two years after the issuance date, and (4)
a signature. Wis. Stat. § 5.02(6m)(f). Plaintiffs seek a permanent injunction that would, in
essence, allow any Wisconsin college photo ID to be accepted at the polls. Both sides move for
summary judgment. Dkt. 45 and Dkt. 47.
The matter of student IDs was also addressed in One Wisconsin Inst., Inc. v. Thomsen, 198
F. Supp. 3d 896 (W.D. Wis. 2016). For that reason, this case was stayed while One Wisconsin
was on appeal. Once the court of appeals issued Luft v. Evers, 963 F.3d 665 (7th Cir. 2020), I
set this case, and the consolidated remand of One Wisconsin and Luft, for expedited
consideration so I could consider whether to grant relief before the November 3, 2020, general
election.
In One Wisconsin I held that the state-law student ID provision was unconstitutional.
That decision was upheld on appeal, though on somewhat different reasoning. Under Luft, a
student with an unexpired state-law compliant student ID is eligible to vote, even without
separate proof of current enrollment. And a student with an expired but otherwise compliant
ID is eligible to vote if the student also presents proof of current enrollment. I decline to order
any further relief from Wis. Stat. § 5.02(6m)(f) before the general election. The court will
cancel tomorrow’s oral argument and stay a decision on the parties’ motions until after the
election.
“The Supreme Court has instructed that federal courts should refrain from changing
state election rules as an election approaches.” Libertarian Party of Illinois v. Cadigan, No. 201961, — Fed. Appx. —, 2020 WL 5104251, at *4 (7th Cir. Aug. 20, 2020) (citing Republican
Nat’l Comm. v. Democratic Nat’l Comm., ––– U.S. ––––, 140 S. Ct. 1205, 1207 (2020), and Purcell
v. Gonzalez, 549 U.S. 1, 4–5 (2006)). Granting further relief now would conflict with the socalled Purcell principle.
The parties completed briefing on their summary judgment motions on September 22,
2020, only six weeks before the presidential election, well within the sensitive time frame. See
Veasey v. Perry, 769 F.3d 890, 895 (5th Cir. 2014) (compiling cases in which the Supreme
Court stayed injunctions on voting requirements that were issued fifty-two, forty, and thirtythree days before the election, and observing “[w]hile the Supreme Court has not explained its
reasons for issuing these stays, the common thread is clearly that the decision of the Court of
Appeals would change the rules of the election too soon before the election date”). Voting is
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already underway in Wisconsin. And the Commission has already issued its Election Day
Manual for municipal clerks, explaining the requirements for voting with a student ID as they
stand after Luft. 1
If the court were to issue an order changing the status quo now, it would leave the
Commission and municipal clerks with little time to issue new guidance and retrain staff. The
nearly inevitable appeal would mean weeks of uncertainty as the case was reviewed by the court
of appeals and possibly the Supreme Court. Any order from this court in favor of the plaintiffs
could lull student voters into complacency, believing that they now held an ID valid for voting,
only to find out on the eve of the election that an appellate court had reached a different
conclusion. This would leave both students and universities scrambling at the last minute to
obtain compliant IDs. That is exactly the chaos and confusion that the Purcell principle is meant
to avoid.
Plaintiffs contend that the Purcell principle doesn’t apply “when voters rights would be
vindicated” by a change in the law. Dkt. 50, at 31. But plaintiffs cite no authority for that view,
and it is inconsistent with Republican Nat’l Comm., 140 S. Ct. at 1207, which relied on the
Purcell principle to reverse a decision extending the deadline for mailing absentee ballots. The
important question under Purcell isn’t whether a decision would favor plaintiffs or defendants;
it is whether a decision could lead to confusion before an election. I conclude that Purcell
counsels in favor of staying the decision on the merits of plaintiffs’ case.
Purcell is not the only consideration. Before granting injunctive relief, the court must
consider the balance of harms. See Diginet, Inc. v. W. Union ATS, Inc., 958 F.2d 1388, 1394
1
https://elections.wi.gov/sites/elections.wi.gov/files/2020-09/Election%20Day%20Manual
%20%282020-09%29_0.pdf.
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(7th Cir. 1992). All of the two and four-year colleges in the University of Wisconsin system
offer students an ID that complies with Wis. Stat. § 5.02(6m)(f). Dkt. 43, ¶¶ 57–58. Plaintiffs
have identified only six private colleges and universities and two technical and community
colleges that don’t offer a compliant ID. Id., ¶¶ 59–60. Of the relatively small number of
students going to institutions that don’t offer a compliant ID, plaintiffs haven’t identified any
student who will be unable to obtain a compliant ID before the November 3 election. Plaintiffs
acknowledge that the Milwaukee School of Engineering, where plaintiff Quintero is a student,
offers a compliant ID upon request. Id., ¶ 75. Even though that process can take up to 48
hours, id., Quintero has ample time to get an ID that will allow him to vote. Students at colleges
that do not offer compliant IDs have time to get voting IDs through the avenues available to
voters generally. Purcell would not inhibit my granting immediate relief if qualified student
voters would actually be disenfranchised, but plaintiffs haven’t made that showing.
Under the circumstances, the balance of harms and the public interest favors delaying
a decision on the merits of this case until after the election.
ORDER
IT IS ORDERED that a decision on the parties’ motions for summary judgment is
STAYED until after the November 3, 2020 presidential election. The oral argument scheduled
for September 24, 2020, is CANCELED.
Entered September 23, 2020.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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