Will Judge Peterson Allow Voting Restrictions?

Among the over 30 changes to state law stemming from the Wisconsin legislature’s lame duck session are three that would overturn parts of an injunction issued by U.S. District Court Judge James Peterson in One Wisconsin Institute v. Thomsen. These would restore some of the barriers to voting that Peterson removed in his 2016 injunction.

In 2013, shortly after Scott Walker became governor and Republicans took control of both houses of the Legislature, the legislature passed, and Walker signed, Act 146, which made several changes to Wisconsin election law. The general effect of these changes was to make voting more difficult, particularly for poor people who lacked documentation or found it difficult to take time off from work.

Several organizations and individuals challenged Act 146 in federal court. While the plaintiffs did not win all their claims, Judge Peterson ruled in their favor on several issues. These included the ID Petition Process, the use of expired student IDs, and restrictions on early voting.

1.  The ID Petition Process (IDPP)

The IDPP aims to offer an alternative process for qualified voters who are unable to obtain a birth certificate or other document needed for a Wisconsin voter ID. In theory, the voter would bring in whatever information was available and be issued a receipt which would be valid for voting.

Concluding that the existing process was unnecessarily cumbersome, Judge Peterson asked the two sides to meet and come up with a joint report on steps to improve it. One recommendation from the joint report was to increase the time the receipt would be valid from 60 to 180 days. This recommendation was incorporated into the judge’s injunction.

The new lame duck provision would shrink the validity period from the agreed-upon 180 days back down to 60 days, a clear violation of Judge Peterson’s injunction.

2. Expired student IDs

The existing law allowed the use of student IDs in conjunction with a current enrollment form. Judge Peterson noted that the enrollment form made redundant the requirement that the ID be unexpired and declared unconstitutional the prohibition on using expired, but otherwise qualifying, student IDs.

Despite this, the new law re-institutes the requirement that university and college IDs must be unexpired, also violating the injunction.

3. Restrictions on early voting

In his 2016 decision Judge Peterson ruled that the legislature showed intentional discrimination when it voted to reduce the hours allowed for in-person absentee voting to the week before the election. He concluded that it was done specifically “to curtail voting in Milwaukee, and, secondarily, in Madison.”

In support, Judge Peterson quoted statements from several legislators to support this conclusion. He reported that state senator (now congressman) “(Glenn) Grothman made repeated statements objecting to the extended hours for in-person absentee voting in Milwaukee and Madison, indicating that hours for voting needed to be ‘reined in.’ On the floor of the senate, he said, ‘I want to nip this in the bud before too many other cities get on board.’”

Judge Peterson also quoted Senate Majority Leader Scott Fitzgerald, “But the question of where this is coming from and why are we doing this and why are we trying to disenfranchise people, I mean, I say it’s because the people I represent in the 13th district continue to ask me, ‘What is going on in Milwaukee?’” Peterson concluded that the law, in:

restricting hours for in-person absentee voting, intentionally discriminates on the basis of race. I reach this conclusion because I am persuaded that this law was specifically targeted to curtail voting in Milwaukee without any other legitimate purpose. The legislature’s immediate goal was to achieve a partisan objective, but the means of achieving that objective was to suppress the reliably Democratic vote of Milwaukee’s African Americans.

Concluding that these limitations on early voting violated the Voting Rights Act and the First and Fourteenth Amendments, he ordered that:

The state-imposed limits on the time for in-person absentee voting, with the exception of the prohibition applicable to the Monday before election day, are unconstitutional under the First and Fourteenth Amendments to the United States Constitution;

Thus, his injunction allowed local governments to decide when they would schedule in-person absentee voting. He added that “The court retains jurisdiction to oversee compliance with the injunction.”

The lame duck legislative package restores the previous law’s restriction on early voting to two weeks before the election. However, unlike the law struck down by Peterson, it would allow evening and weekend hours.

Judge Peterson issued his opinion in August 2016, well over two years ago. It was appealed to the Seventh Court of Appeals, along with a request to stay the injunction. A three-judge denied the stay request, allowing the injunction to continue in effect. All three of the panel members were appointed by Republican presidents and are considered conservatives.

The full appeals court panel held oral arguments on the appeal on February 24 of 2017. Since then, there has been no word from the panel on a possible decision.

In December, the plaintiffs asked Judge Peterson for an order enforcing his injunction by prohibiting the defendants from implementing the sections of the lame duck acts that violated the injunction. Briefs regarding this motion are due in early January.

What happens next? Opponents of the restrictions have already moved to enforce the injunction. The brief opposing this motion is due January 3 and the response brief on January 10. Coming in the middle of a transition, this schedule raises the question of who speaks for Wisconsin. In the past it has been the Solicitor General. But another part of the lame duck laws eliminates that position effective January 1. Josh Kaul, the new attorney general takes office on January 7. During his campaign, Kaul said he felt obligated to defend most state laws, even ones he disagreed with. Where does this law fit?

The need by election administrators across Wisconsin for clear rules puts pressure on the judge to act quickly, particularly on early voting. The spring election campaign is about to begin. He will certainly rule against Wisconsin on the first two issues—the ID Petition Process and student IDs–each a clear violation of his injunction.

That leaves the early voting restrictions. The same considerations that applied to its earlier cousin seem to apply to the latest restrictions. The prime motivation for the restriction continues to be hostility towards Milwaukee and Madison voters and a desire to curb their influence in elections. If the judge wonders whether this hostility has abated since the election, he has only to read recent comments from Fitzgerald, Assembly Speaker Robin Vos, and other Republican legislators showing their hostility to Milwaukee and Madison voters. Also, the addition of evening and weekend hours further undermines the ostensible justification for the restrictions—the desire for statewide uniformity. Most small towns are likely to find evening voting unaffordable.

Having waited this long to issue a decision, it is unlikely the appeals court panel will jump in to alter the rules. This means that whatever Peterson decides will determine how Wisconsin’s spring election is run.

In a recent Urban Milwaukee op ed, Rick Esenberg of the Wisconsin Institute for Law and Liberty makes a number of dubious claims in defending the lame duck laws in general and the revised restrictions on early voting in particular.

One is that by going to Judge Peterson, advocates of a less restrictive early voting are “judge shopping.” This argument makes no sense. Normally, the primary responsibility for enforcing an injunction rests with the judge issuing the injunction.

The second argument is that the new law “fixes” the previous law. But the new law stems from the same motivation as the previous law, the desire to “rein in” Milwaukee and discourage its voters, a majority of Wisconsin’s minority population, from voting.

The third argument is that Judge Peterson should await the decision of the appeals court. This gets the usual practice backwards. Usually when a law is amended while an appeal is pending, the appeals court will ask a circuit court to reconsider its decision in light of the changes. Reversing that sequence may be a red flag of a court with a political agenda.

More broadly, we are currently seeing a global threat to democracy, both internationally and in the US. Nations previously on track to full democracy are sliding backwards, often with the encouragement of our current president. Domestically, Wisconsin has become something of a case study of a party that attempts to permanently entrench itself in power. It is ironic that a group that incorporates the language of democracy, such as “laws” and “liberty,” in its name has enlisted in the anti-democracy movement.