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Foley & Lardner LLP: Wisconsin Voter ID: Plaintiffs' Emergency Application to Justice Kagan Lacks a Key Element

By Thomas L. Shriner Jr.

The plaintiffs in Wisconsin’s Voter ID case [on Oct. 2] filed an emergency application with Justice Kagan, the Circuit Justice assigned to the Seventh Circut, seeking an order vacating the Seventh Circuit’s September 12 stay of Judge Adelman’s injunction against enforcement of the law, 2011 Wis. Act 23. Justice Kagan has called for a response from the state by [Oct. 7].

We have written several times already about the argument in the Seventh Circuit on the merits; that court’s stay of the injunction the same day (here); and the plaintiffs’ ultimately unsuccessful effort (for failure to get a sixth vote among the court’s ten active judges) to have the full court hear their motion for reconsideration of the stay (here). The plaintiffs have now turned to the last place from which they can hope for relief, to prevent the Voter ID law from taking effect for the November elections.

The application for stay, like the plaintiffs’ motion for en banc hearing in the Seventh Circuit, makes a strong case as to two of the traditional criteria for a stay—likelihood of success and irreparable harm. Other commentators, focusing on these elements, have gone so far as to predict success for the application before Justice Kagan or the full Court, to which she is likely to refer it.

We’re not in the prediction business, but we note the weakness of the application’s showing on what is always a key factor in obtaining emergency relief from a Circuit Justice or the entire Supreme Court while the case is still pending in the lower court (recall that the Seventh Circuit panel has not yet issued a decision on the merits of the case). In asking a Circuit Justice to vacate a stay entered before the court of appeals’ decision, it is necessary to show that the “case could and very likely would be reviewed [in the Supreme Court] upon final disposition in the court of appeals.” Coleman v. Paccar Inc., 424 U.S. 1301 (1976) (Rehnquist, J. in chambers) [enhanced opinion available to subcribers].

Here, the plaintiffs can point to only two of what they call “conflicting decisions [that] are now or may shortly come before this Court.” (Appl., p. 19 n.4.) One of those cases, decided by a 2-1 vote of a panel of the Fourth Circuit on [Oct. 1, League of Women Voters of N.C. v. Duke [enhanced opinion], was an appeal from a district court’s denial of a preliminary injunction with respect to various changes made to voting laws in North Carolina in 2013. The Fourth Circuit reversed the denial as to only two of the challenged provisions, relating to same-day registration and out-of-precinct voting. The court affirmed the denial as to what it described as “the soft roll-out of voter identification requirements to go into effect in 2016.” (Slip op. p. 14.) So the case seems quite weak as a “conflicting” decision. Indeed, the Fourth Circuit opinion doesn’t even mention Crawford v. Marion Cnty. Elec. Bd., 553 U.S. 181 (2008) [enhanced opinion], the case that the Wisconsin plaintiffs insist the Seventh Circuit’s stay order misinterprets. The other “conflicting” decision on which they rely is a case in a district court in Texas that they describe as “pending decision following September 2014 bench trial.” Quite a stretch.

As Justice Rehnquist noted in his Paccar decision, instead of asking the Circuit Justice to vacate the court of appeals’ stay, the “losing litigant could . . . petition this Court for a writ of certiorari to review the stay order of the court of appeals.” 424 U.S. at 1308 n.*. But, as he also noted, “the exercise of such power by the Court is an extremely rare occurrence.” Id.

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