In the United States Court of Appeals For the Seventh Circuitmoritzlaw.osu.edu/electionlaw/litigation/documents/LULAC75.pdf · United States Court of Appeals . For the Seventh Circuit

1

Nos. 14-2058 & 14-2059

______________________________________________________________________________

In the

United States Court of Appeals

For the Seventh Circuit _____________________________________

RUTHELLE FRANK, et al.,

Plaintiffs-Appellees,

v.

SCOTT WALKER, et al.,

Defendants-Appellants.

______________________________________________________________________________

LEAGUE OF UNITED LATIN AMERICAN

CITIZENS OF WISCONSIN, et al.,

Plaintiffs-Appellees,

v.

DAVID G. DEININGER, et al.,

Defendants-Appellants.

_____________________________________

On Appeal from the United States District Court for the

Eastern District of Wisconsin, Nos. 2:11-CV-01128-LA & 2:12-CV-00185-LA.

The Honorable Lynn S. Adelman, Judge Presiding.

______________________________________________________________________________

PLAINTIFFS-APPELLEES’ EMERGENCY MOTION TO STAY

JUDGMENT AND MANDATE PENDING FURTHER REVIEW

______________________________________________________________________________

Plaintiffs-Appellees (“Plaintiffs”) respectfully move for an emergency stay of

this Court’s October 6, 2014 judgment (ECF No. 75), and the resulting mandate,

pending the timely filing and disposition of a petition for rehearing en banc and, if

necessary, a petition for a writ of certiorari to the United States Supreme Court.

2

First, there is a strong likelihood that Plaintiffs and other Wisconsin voters

“will suffer irreparable injury” in the upcoming November 4 general election if a

stay is not issued. United States ex rel. Chandler v. Cook Cty., 282 F.3d 448 (7th Cir.

2002) (Ripple, J., in chambers). Act 23 “was designed to have a rollout period of 8

months before a primary and 16 months before a general election—not mere

weeks.” ECF No. 73 at 12. The fact that a legislature has provided a lengthy period

for voter education and poll-worker training before new voter ID requirements take

effect “strongly suggest[s] that these steps cannot be adequately completed” in a

truncated time, especially just weeks before a major election. South Carolina v.

United States, 898 F. Supp. 2d 30, 49 (D.S.C. 2012).

The State’s eleventh-hour attempt to implement the law’s photo ID

requirement will cause chaos at the polls, confusion among voters and poll workers,

and widespread disenfranchisement. The Supreme Court has admonished lower

courts not to order last-minute changes to voting rules, since such changes “can

themselves result in voter confusion and consequent incentive to remain away from

the polls,” a risk that increases “[a]s an election draws closer.” Purcell v. Gonzalez,

549 U.S. 1, 4-5 (2006).

Some 300,000 Wisconsin registered voters lack the ID necessary to vote in

the upcoming election, and there is no realistic possibility that more than a handful

of these voters can secure the needed ID by November 4. See ECF No. 74, at 4.

Those without ID who do not learn about the recent change in voting requirements,

along with those who are unable to obtain an ID in the short time that is left, will

3

be unable to vote. The “right to vote freely for the candidate of one’s choice is of the

essence of a democratic society, and any restrictions on that right strike at the heart

of representative government.” Reynolds v. Sims, 377 U.S. 533, 555 (1964). “Other

rights, even the most basic, are illusory if the right to vote is undermined.” Wesberry

v. Sanders, 376 U.S. 1, 17 (1964). This Court should enter an immediate stay of the

judgment and resulting mandate to prevent thousands of Wisconsin residents being

deprived of the fundamental right to vote. See United States v. Classic, 313 U.S.

299, 315 (1941) (“within the right to choose, secured by the Constitution, is the right

of qualified voters within a state to cast their ballots and have them counted”).

Second, there is a fair prospect that the panel’s decision will be reversed. See

Chandler, 282 F.3d at 450. With respect to Plaintiffs’ constitutional claims, five

judges of this Court disapproved of the panel’s application of Crawford v. Marion

County Election Board, 553 U.S. 181 (2008), to the “record-heavy” facts of this case.

ECF No. 73 at 11. Act 23 is much more stringent than Indiana’s law at issue in

Crawford. For instance, Act 23 lacks Indiana’s affidavit option that allows indigent

voters without identification to vote provisionally. See Crawford, 553 U.S. at 199.

Also, unlike Wisconsin, Indiana law allows all voters over age 65 and all voters with

disabilities to vote absentee without photo ID or meeting any other requirements.

Ind. Code § 3-11-10-24(a)(4), (5); see also Crawford, 553 U.S. at 201 (“[Although it

may not be a completely acceptable alternative, the elderly in Indiana are able to

vote absentee without presenting photo identification.”).

4

Plaintiffs also are likely to obtain reversal of the panel’s decision rejecting

their claims under Section 2 of the Voting Rights Act. As the district court

undisputedly found, Act 23 disproportionately burdens racial minorities in

Wisconsin, who are less likely to have a qualifying ID and face greater obstacles to

obtaining one. The disparate burdens on minority voters, moreover, result from

undisputed social and historical circumstances inexorably tied to discrimination.

See Thornburg v. Gingles, 478 U.S. 30, 35 (1986) (“[T]he 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.”).

Lastly, this Court should “balance the equities of granting a stay by assessing

the harm to each party if a stay is granted.” Books v. City of Elkhart, 239 F.3d 826,

829 (7th Cir. 2001). Here, the equities weigh strongly in favor of Plaintiffs. To date,

Defendants-Appellees (“Defendants”) have been unable to point to any concrete

harm that they will suffer from maintaining the status quo until after the upcoming

election, to allow the en banc Court and the Supreme Court to review this case. In

particular, Defendants have not identified any examples of in-person voter fraud,

the particular harm against which Act 23 purports to guard.

For these reasons, this Court should grant Plaintiffs’ emergency motion for a

stay pending the timely filing and disposition of a petition for rehearing en banc

and, if necessary, a petition for a writ of certiorari.

5

Dated: October 7, 2014

CHARLES G. CURTIS, JR.

Arnold & Porter LLP

Suite 620

16 North Carroll Street

Madison, Wisconsin 53703

(608) 257-1922

[email protected]

s/ John C. Ulin

JOHN C. ULIN (Counsel of Record )

MARCO J. MARTEMUCCI

Arnold & Porter LLP

44th Floor

777 South Figueroa Street

Los Angeles, California 90017

(213) 243-4000

[email protected]

[email protected]

CARL S. NADLER

ETHAN J. CORSON

Arnold & Porter LLP

555 Twelfth Street, N.W.

Washington, D.C. 20004

(202) 942-6130

[email protected]

[email protected]

PENDA D. HAIR

KATHERINE CULLITON-GONZÁLEZ

LEIGH M. CHAPMAN

Advancement Project

Suite 850

1220 L Street, N.W.

Washington, D.C. 20005

(202) 728-9557

[email protected]

[email protected]

[email protected]

Respectfully submitted,

s/ Karyn L. Rotker

KARYN L. ROTKER (Counsel of Record)

LAURENCE J. DUPUIS

American Civil Liberties Union of

Wisconsin Foundation

207 East Buffalo Street, Suite 325

Milwaukee, WI 53202

(414) 272-4032

[email protected]

[email protected]

DALE E. HO

SEAN J. YOUNG

American Civil Liberties Union

Foundation, Inc.

125 Broad Street, 18th Floor

New York, NY 10004

(212) 549-2693

[email protected]

[email protected]

NEIL A. STEINER

Dechert LLP

1095 Avenue of the Americas

New York, NY 10036

(212) 698-3822

[email protected]

CRAIG G. FALLS

Dechert LLP

1900 K Street NW

Washington, DC 20006

(202) 261-3373

[email protected]

ANGELA M. LIU

Dechert LLP

77 West Wacker Drive, Suite 3200

Chicago, IL 60601

(312) 646-5816

[email protected]

6

NATHAN D. FOSTER

Arnold & Porter LLP

370 17th Street, Suite 4400

Denver, Colorado 80202

(303) 863-1000

[email protected]

DANIEL OSTROW

Arnold & Porter LLP

399 Park Avenue

New York, New York 10022

(212) 715-1000

[email protected]

Attorneys for LULAC Plaintiffs-Appellees

JEREMY ROSEN

National Law Center on

Homelessness & Poverty

2000 M Street NW, Suite 210

Washington, DC 20036

(202) 347-3124

[email protected]

Attorneys for Frank Plaintiffs-Appellees

7

CERTIFICATE OF SERVICE

I hereby certify that on October 7, 2014, I electronically filed the foregoing

Emergency Motion to Stay Judgment and Mandate Pending Further Review with

the Clerk of the Court for the United States Court of Appeals for the Seventh

Circuit by using the CM/ECF system. I certify that all participants in the case are

registered CM/ECF users and that service will be accomplished by the CM/ECF

system.

Dated this 7th day of October, 2014.

s/ Karyn L. Rotker s/ John C. Ulin

KARYN L. ROTKER (Counsel of Record)

American Civil Liberties Union of

Wisconsin Foundation

207 East Buffalo Street, Suite 325

Milwaukee, WI 53202

(414) 272-4032

[email protected]

Attorney for Frank Plaintiffs-Appellees

JOHN C. ULIN (Counsel of Record)

Arnold & Porter LLP

777 S. Figueroa Street, Suite 4400

Los Angeles, CA 90017

(213) 243-4000

[email protected]

Attorney for LULAC Plaintiffs-Appellees

Case: 14-2058 Document: 65-1 Filed: 09/16/2014 Pages: 62




































In the United States Court of Appeals For the Seventh Circuitmoritzlaw.osu.edu/electionlaw/litigation/documents/LULAC75.pdf · United States Court of Appeals . For the Seventh Circuit

Documents