UPDATE 4:21 p.m. Justice Elena Kagan has called for a response from Wisconsin to this application. It is due by 5 p.m. next Tuesday.
FURTHER UPDATE 4:51 p.m. Meanwhile, state officials in North Carolina asked the Court to reinstate two voting measures that it had dropped but that were reinstated by the U.S. Court of Appeals for the Fourth Circuit — same-day registration and voting, and counting of ballots that voters had cast in the wrong precinct polling place. That application (North Carolina v. League of Women Voters of North Carolina, docket 14A358) was filed with Chief Justice John G. Roberts, Jr., as Circuit Justice. The Chief Justice has called for a response by 5 p.m. this Sunday.
Arguing that one in ten voters already registered in Wisconsin may not actually get to cast their ballots this year, civil rights and citizens’ advocacy groups asked the Supreme Court on Thursday to bar a new requirement to produce a photo ID before voting.
By a vote of five to five, a federal appeals court has permitted enforcement for this year’s general election, already underway with absentee voting. The plea for the Supreme Court to step in now was filed with Justice Elena Kagan, who handles emergency filings from the geographic area that includes Wisconsin. She can act on her own, or share the issue with her colleagues.
The filing was the second in recent days seeking to draw the Supreme Court into the spreading controversy over state legislatures’ new restrictions on voting rights — adopted on the argument that they are necessary to prevent voter fraud or reduce election costs, and opposed on the argument that they mainly shut out voting by minorities and the poor and discriminate in violation of the Constitution and federal voting rights guarantees.
Wisconsin’s new voter ID law — Act 23 — was passed more than three years ago, but it has so far been used in only one state primary election because of challenges to its validity. A series of lawsuits have been pursued in state and federal courts, with mixed results.
In asking the Supreme Court to stop enforcement of the law, the new application (Frank v. Walker, 14A352) contended that the state law “is one of the strictest in the country.” The law provides a list of nine kinds of photo IDs that must be shown to obtain a ballot, either as an absentee voter or at the polling place. But a federal judge who found it invalid last month said that some 300,000 Wisconsin residents, already registered to vote, do not have those kinds of IDs, and many of them will be unable to get or afford either those IDs or a substitute ID card that the state offers.
Because absentee balloting has already started without the voter ID requirement, the new application argued, the evenly split decision by the U.S. Court of Appeals for the Seventh Circuit allowing it to be enforced “guarantees chaos at the polls and irreparable disenfranchisement of many thousands of registered Wisconsin voters.”
The groups contended that, before the Seventh Circuit had cleared the way for the requirement, the state “had taken virtually no steps to implement Act 23 for the upcoming election.”
If the Supreme Court does not act now to permit voting without the photo ID requirement, the application asserted, the lower court’s action “will sow confusion at the polls and discourage voting in the November 4 general election….Chaos in an election — especially when entirely preventable — is undemocratic.”
Presumably, state officials will be given a chance to respond to the challenge before Justice Kagan or the full Court acts on it.
On Monday, the Court split five to four in blocking voters in Ohio from beginning to cast their ballots on Tuesday of this week. Early voting in Ohio is now set to begin next Monday.