Early-Voting Restrictions Passed in Wisconsin Lame-Duck Session Blocked by Judge

by | January 18, 2019 AT 7:15 AM

By Ed Treleven

Newly created restrictions on early voting and other election-related measures that were part of lame-duck legislation signed in December by outgoing Republican Gov. Scott Walker violate a federal court order issued in 2016 that voided similar restrictions, a federal judge ruled Thursday.

U.S. District Judge James Peterson, in a five-page ruling, agreed to issue an order enforcing injunctions against time limits for in-person absentee voting, restrictions on the use of student identification cards for voting and time limits on the validity of temporary identification cards issued under a process called the ID Petition Process.

"This is not a close question," Peterson wrote. "The three challenged provisions are clearly inconsistent with the injunctions that the court has issued in this case."

During the lame-duck session in December, the GOP-led Legislature approved the measures, and Walker signed them. Soon after, liberal groups Citizen Action of Wisconsin and One Wisconsin Institute went to court to ask Peterson to quash the newly approved restrictions, saying they directly conflicted with orders issued by Peterson in 2016 as he ruled in a case brought by the groups over the state Voter ID law.

The case was appealed to the U.S. Court of Appeals for the Seventh Circuit, which has not ruled. Peterson said he retains jurisdiction to enforce his orders while the appeal is pending.

In his order, Peterson wrote that arguments by the state about the dissimilarity between the newly passed law and the limits on in-person absentee voting that Peterson barred were not persuasive.

"If the court accepted defendants' argument, it would mean that a legislative body could evade an injunction simply by reenacting an identical law and giving it a new number," he wrote.

On the student ID issue, Peterson wrote that the state's lawyers argued that the amendments approved by the Legislature had nothing to do with the provisions that Peterson barred in 2016. Again, Peterson disagreed.

Scot Ross, One Wisconsin Institute executive director, applauded the ruling in a statement.

"(Assembly Speaker) Robin Vos and the Republicans have been told by the federal court in no uncertain terms that they are not above the law," Ross said. "The Republican attacks on voting rights were unconstitutional when they were passed, they were unconstitutional when the judge struck them down and they are unconstitutional now."

Democratic Gov. Tony Evers also applauded the ruling, writing on Twitter that he is "glad to see that a federal ct again struck down the GOP's unconstitutional attacks on our right to vote."

"We have to make sure folks have the opportunity to participate in our democracy," he wrote. "That's why I believe we should be making it easier for Wisconsinites to vote, not harder."

Gillian Drummond, spokeswoman for state Attorney General Josh Kaul, said the Department of Justice is reviewing the ruling. She said that Kaul, who was an attorney representing One Wisconsin Institute and Citizen Action in the case before his election as AG, has recused himself from the case and assigned it to Deputy Attorney General Eric Wilson.

Vos, R-Rochester, and Senate Majority Leader Scott Fitzgerald, R-Juneau, did not respond to a request for comment. In an interview with a WISC-TV reporter Thursday, Vos said of the ruling, "surprise, surprise" that a "liberal judge from Dane County" would strike down the law.

Peterson was appointed to the federal bench by former President Barack Obama, a Democrat.

The lame-duck law states that in-person absentee voting, or any early voting, can happen no earlier than 14 days before an election, and not after the Sunday before an election.

In his 2016 ruling, Peterson wrote, he barred "state-imposed limits on the time for in-person absentee voting, with the exception of the prohibition applicable to the Monday before election day."

Although the new law expands the early voting window slightly from the law Peterson struck down in 2016, it is still a state-imposed limit, so it violates the injunction, he wrote.

The state also argued that the new law eliminates some restrictions on in-person absentee voting that the court found to be unlawful, such as restrictions on hours or locations for voting.

"This argument ignores the fact that the court concluded that each restriction was independently unlawful and enjoined them separately," Peterson wrote. "Defendants do not point to any language in the court's opinion or injunction in which the court relied on the cumulative effect of the voting restrictions as justification for enjoining them. A party cannot avoid an injunction by complying with parts of it while disregarding others."

While the state admitted that provisions in the new law concerning the use of student IDs and temporary IDs are barred by the 2016 injunction, Peterson wrote, it claimed that it added limits prohibiting the use of expired student IDs or temporary IDs more than 60 days old in anticipation of the appeals court eventually upholding those limits.

Its argument -- that enjoining those provisions would be "redundant and unnecessary" while the appeal of Peterson's 2016 ruling is pending because election officials would obey the court's injunction -- may instead prove confusing for officials, he wrote, who might be unsure whether the provisions are or are not valid.

(c)2019 The Wisconsin State Journal (Madison, Wis.)