Federal appeals court could reinstate Wisconsin's early voting limits

CHICAGO – Three federal judges expressed deep skepticism Friday over claims that Wisconsin Republicans had deliberately made it harder for minorities to vote, raising the prospect they would reinstate limits on early voting.

Judge Frank Easterbrook of the U.S. 7th Circuit Court of Appeals said those challenging Wisconsin’s voting laws were contending that Democrats can expand voting rules to help their party at the polls but Republicans can’t tighten them to their advantage.

“That can’t be right,” he said during arguments in a pair of Wisconsin cases.

His colleagues on the panel — Judges Michael Kanne and Diane Sykes — showed they had just as many doubts about lower court rulings that struck down voting rules set by GOP Gov. Scott Walker and Republican lawmakers.

Since 2011, Republicans in Wisconsin have approved the voter ID law, eliminated early voting on weekends and tightened other voting regulations. A string of lawsuits followed.

RELATED: UW researchers to study voter ID effect

Last year, U.S. District Judge James Peterson in Madison struck down the restrictions on early voting and a prohibition on allowing early voting in more than one place in each municipality. He found those laws discriminated against minorities.

His ruling allowed local officials to decide when and where to allow early voting. Milwaukee and Madison — the state’s Democratic strongholds — conducted early voting at multiple locations, but the results in November were good for Republicans nonetheless. Donald Trump became the first Republican presidential candidate to win Wisconsin since Ronald Reagan in 1984.

The early voting law got little discussion Friday during an hour of arguments, but the judges raised numerous questions about other voting laws Peterson had struck down.

One law Peterson blocked said voters must live in a voting ward for 28 days before an election to be able to cast a ballot there. Easterbrook noted the U.S. Supreme Court upheld an Arizona law in 1973 that required voters to live in their wards for 50 days before an election.

"How can a 50-day requirement be valid but a 28-day requirement cannot?” he said. “The judge is just saying, ‘I’m taking this out of politics. I’m deciding this.’ District judges aren’t supposed to disagree with the Supreme Court of the United States.”

The panel's ruling in the coming months will shape what voting rules are in place next year, when Republican Gov. Scott Walker and Democratic U.S. Sen. Tammy Baldwin face re-election.

(Its ruling is not expected to impact the April 4 general election.)

The lower court judge found Republicans had intentionally discriminated against African-Americans and Latinos with their voting restrictions. He based that in part on statements by then-state Sen. Mary Lazich (R-New Berlin) that Republicans needed to pass the voter ID law because of how it would affect Milwaukee neighborhoods and college campuses.

Bruce Spiva, an attorney for the groups challenging the voting laws, called her statement "extraordinary" and an explicit sign Republicans meant to make it difficult to vote for minorities and other Democratic-leaning voters. The appeals judges were skeptical.

“You say explicit statements, but they’re not as explicit as you describe them,” Kanne said.

The lower court ruling — issued in response to a lawsuit by the liberal groups One Wisconsin Institute and Citizen Action of Wisconsin Education Fund — also addressed Wisconsin's voter ID law.

The ID law is at the center of a separate lawsuit, brought by the American Civil Liberties Union, that was also considered Friday.

The 7th Circuit Court of Appeals upheld the heart of the voter ID law in 2014 in the ACLU case. But that litigation has continued over how the Wisconsin Division of Motor Vehicles has handled those who have trouble getting IDs because they don’t have birth certificates or have other challenges in proving their identity.

“We’re here today because the DMV has failed as our gatekeeper of democracy," ACLU attorney Sean Young argued.

But Wisconsin Deputy Solicitor General Ryan Walsh told the judges the Badger State has “one of the most generous, voter-friendly systems in the nation.”

Those who have trouble getting IDs can get temporary voting credentials while state officials check their identities so they can give them IDs, attorneys for the state contended. Opponents of the voter ID law said the system is not as convenient as the state claims and subjects people to the whims of DMV workers.

The ACLU wants those who can’t get IDs to be able to vote if they sign affidavits saying they are who they claim to be. That’s an idea the appeals court has rejected so far.

In the One Wisconsin case, Peterson ruled the state had to restructure its system for providing voting credentials to people who can’t easily get IDs, many of whom are minorities.

Scot Ross, executive director of One Wisconsin, issued a statement Friday saying:  “The real fraud in Wisconsin elections has been exposed and our hope is that the court will find that the GOP efforts to manipulate the rules for their partisan advantage are inconsistent with a well-functioning democracy and are impermissible under the Constitution.”

The judges who heard the arguments were appointed by Republican presidents. Easterbrook and Kanne were appointed by Reagan. Sykes, a former Wisconsin Supreme Court justice, was appointed to the federal bench by President George W. Bush.

Whichever side loses this appeal can try to get the panel’s ruling reviewed by the full appeals court or the U.S. Supreme Court.

The full appeals court split 5-5 in 2014 on whether to strike down Wisconsin's voter ID law. Since then, one judge has retired, leaving a 5-4 majority that has expressed skepticism of the voter ID law.

The outlook for voter ID supporters is better before the U.S. Supreme Court. In 2008, the high court ruled 6-3 to uphold Indiana’s voter ID law. (Litigation over voter ID has continued because Indiana's law differs in key respects from the ones in Wisconsin and some other states.)

The Supreme Court is now split 4-4 between conservatives and liberals. The U.S. Senate is now considering confirming Trump nominee Neil Gorsuch, a conservative.

Patrick Marley can be reached at patrick.marley@jrn.com and twitter.com/patrickdmarley.