LYNN ADELMAN, District Judge.
When the plaintiffs commenced this suit, they alleged that Wisconsin's law requiring voters to present photo identification at the polls, 2011 Wis. Act 23 ("Act 23"), violated the Constitution and Section 2 of the Voting Rights Act. Following a trial on the claims alleged in this and a companion case, I concluded that Act 23 placed an unjustified burden on the plaintiffs' voting rights and therefore violated the Fourteenth Amendment. I also concluded that Act 23 violated Section 2 of the Voting Rights Act. Having found these violations, I entered an injunction prohibiting the defendants from enforcing the photo ID requirement. Frank v. Walker, 17 F.Supp.3d 837 (E.D.Wis.2014). The defendants appealed, and the Seventh Circuit reversed. Frank v. Walker, 768 F.3d 744 (7th Cir.2014).
In my prior decision, I noted that I was leaving certain of the plaintiffs' constitutional claims unresolved. Frank, 17 F.Supp.3d at 842-43. Those claims involved Act 23's failure to include certain forms of photo ID, such as veteran's ID cards, on the list of acceptable IDs, and its allegedly placing a poll tax on persons who would be required to surrender their out-of-state driver's licenses in order to obtain
However, before I turn to the unresolved claims, I discuss the plaintiffs' request for class certification and for relief on behalf of persons they describe as "Class 1 voters," i.e., those voters "who lack photo ID and face systemic practical barriers to obtaining an ID." See Pls.' Br. at 16, ECF No. 223. The relief they seek in connection with this claim is an injunction allowing persons to vote at their polling place without presenting an ID but instead by signing an affidavit attesting to their identity and to the difficulties they would face in obtaining ID. Id. at 18. This "Class 1" claim is not a claim I left unresolved in my prior decision. It is the constitutional claim on which I granted relief: I found that Act 23 imposed unjustified burdens on voters who currently lack photo ID and will face heightened barriers to obtaining ID. Frank, 17 F.Supp.3d at 862-63. I specifically considered the plaintiffs' proposed affidavit procedure and determined that an injunction against the law's enforcement was a more appropriate remedy for the violation of the plaintiffs' rights. Id. The Seventh Circuit reversed my decision and did not remand for further proceedings in connection with this claim. It did not, for example, vacate the injunction and remand with instructions to consider granting some other remedy, such as the plaintiffs' proposed affidavit procedure. Rather, it held that the plaintiffs' claim was no different than the claim the Supreme Court considered and rejected in Crawford v. Marion County Election Board, 553 U.S. 181, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008). Frank, 768 F.3d at 751. I am not free to disregard this holding on remand. See, e.g., Kovacs v. United States, 739 F.3d 1020, 1024 (7th Cir.2014) ("The lower court is bound, through the mandate rule, to the resolution of any points that the higher court has addressed.").
For two reasons, the plaintiffs contend that the Class 1 claim they are now pursuing is different than the claim the Seventh Circuit considered and rejected: (1) they seek relief on behalf of a narrower class of voters,
Plaintiff Domonique Whitehurst seeks to represent a class of "Wisconsin technical college students who have photo ID otherwise acceptable under the student ID provisions of Act 23." Pls.' Br. at 10, ECF No. 223. Under the student ID provisions of Act 23, such an ID may be used for voting if it is issued by a university or college in Wisconsin that is "accredited" (as defined by Wis. Stat. § 39.90(1)(d)), and meets certain other requirements. See Wis. Stat. § 5.02(6m)(f). The plaintiff contends that any refusal to accept technical college IDs as acceptable forms of ID for complying with Act 23 would violate the Equal Protection Clause, and she seeks an injunction requiring the defendants to accept such IDs so long as they are otherwise indistinguishable from the types of student ID already accepted under Act 23.
Act 23 does not expressly state that technical college IDs may not be used for voting, and since November 2011, the Government Accountability Board (which is the state agency charged with implementing Act 23) has interpreted Act 23 to mean that technical college IDs are acceptable. However, when in September 2011 the GAB first considered whether technical college IDs are acceptable, it concluded that the legislature "did not intend for technical college ID cards to be treated as equivalent to those issued by other universities and colleges." Defs.' Ex. 1049 at p. 2. It reached this conclusion after noting that the legislature had rejected amendments to Act 23 that would have explicitly included technical college IDs in the list of acceptable IDs. Id. But then the GAB reconsidered this conclusion at its meeting on November 9, 2011, and it decided "to allow technical college ID cards for voting purposes." Defs.' Ex. 1050, fifth page. At the November meeting, the GAB determined that the ordinary meaning of the word "college," as used in the statute, included technical colleges. Id.
The defendants contend that the GAB's interpretation of Act 23 and its rulemaking have rendered the plaintiff's equal-protection claim moot. However, although I agree that the plaintiff's claim is not justiciable at this time, I do so on the basis of ripeness rather than mootness. Mootness comes into play when it is too late to grant relief to the plaintiff; ripeness comes into play when it is too early to do so. See Capeheart v. Terrell, 695 F.3d 681, 684 (7th Cir.2012). By the time the plaintiffs filed this suit, the GAB had interpreted Act 23 to allow the use of technical college IDs for voting. The plaintiffs nonetheless included a claim on behalf of technical college students in their complaint because they feared that at some point in the future either the GAB, the governor, or the state legislature would take some action to prevent the use of technical college IDs for voting. See Am. Compl. ¶¶ 47-48, ECF No. 31. The plaintiff's claim thus relates to future events that may or may not occur, which raises a question of ripeness rather than mootness. See Wis. Right to Life v. Barland, 664 F.3d 139, 148 (7th Cir.2011) ("Ripeness concerns may arise when a case involves uncertain or contingent events that may not occur as anticipated, or not occur at all.").
Here, the plaintiff's claim is not ripe because too many contingent and unlikely events must occur before she and the proposed class members would be precluded from using technical college IDs at the polls. For nearly four years, the GAB has interpreted Act 23's student-ID provision as including technical college IDs, and it has issued both emergency and proposed permanent rules that embody its interpretation. To date, neither the governor nor the legislature has disagreed with the GAB's interpretation, and these branches of state government have taken no action to block the GAB's rules. Even if the GAB's rules do not become permanent, the GAB could continue to interpret Act 23 the way it has and continue to instruct local election officials to accept technical college IDs at the polls. See Defs.' Ex. 1050 at 7-8 (noting that GAB instructed local election officials to accept technical college IDs even before the emergency rules went into effect). The plaintiff suggests that the legislature could enact a new statute explicitly forbidding the use of technical college IDs for voting, Am. Compl. ¶ 48, and at oral argument her lawyer pointed out that the legislature is considering a bill to eliminate the GAB altogether, which might result in the creation of a new agency responsible for administering the election laws, which agency, in turn, might interpret Act 23 as excluding technical college IDs, see Tr. of Oral Argument at 7. But these are highly speculative future events, and the chance that they will occur is too small to justify constitutional adjudication.
Moreover, should the events the plaintiff fears come to pass, she (or another technical college student) may commence a new suit at that time and seek a preliminary injunction. The suit would present a relatively straightforward legal question that could be resolved quickly, and if the plaintiff's claim has merit an injunction could likely be issued between the time the defendants announce their decision to exclude technical college IDs and the date of an election. Thus, withholding judicial review until after that decision has been made would not impose a hardship on the plaintiff or the proposed class members. See Wis. Right to Life, 664 F.3d at 148 (explaining that case is unripe when plaintiff cannot show that delaying judicial review until feared events occur will cause hardship).
For these reasons, the plaintiff's motion for relief on behalf of technical college students will be denied, and her claim will be dismissed as unripe.
Plaintiffs Samantha Meszaros and Matthew Dearing seek to represent a class of "all Wisconsin voters who are residents of Wisconsin for voting purposes, who lack any accepted photo ID, and who would be forced to surrender an out-of-state driver's license in order to obtain a free Wisconsin ID card for voting purposes." ECF No. 194 at 101. These plaintiffs contend that the photo ID requirement, as applied to members of the proposed class, amounts to a poll tax that violates both the 24th Amendment to the Constitution and the Equal Protection Clause of the Fourteenth Amendment. Their argument is that persons who possess an out-of-state license are faced with an impermissible choice: they must either pay a fee to obtain another form of Act 23-compliant ID (such as a passport) or surrender their driving privileges to obtain a free Wisconsin state ID card.
An initial problem is that the claims of the class representatives are moot. Both Meszaros and Dearing testified at trial that they have obtained U.S. passports and that they did so for reasons other than to vote in Wisconsin. Tr. at 696, 977. Thus, assuming that they are otherwise qualified Wisconsin voters,
The plaintiffs contend that even if Meszaros and Dearing's claims are moot, another person, Brittney Frederick, is willing to serve as the class representative. Frederick filed a declaration stating that she is a student at Carthage College and does not currently possess any form of Act 23-compliant ID. See ECF No. 238-1. She does possess a student photo ID card issued by Carthage, but she is not sure whether that ID is acceptable for voting purposes. Frederick has an unexpired driver's license issued by Illinois, which is where she grew up and where her parents live. She states that she does not want to either pay for a Wisconsin driver's license or to surrender her Illinois driver's license.
Frederick is not identified in the plaintiffs' most recent complaint, did not participate in discovery, and did not testify at the trial. The defendants have not conceded that the facts as alleged in her declaration are true.
Moreover, the plaintiffs have not convinced me that there are a large number of persons in Wisconsin who do not possess Act 23-qualifying ID and who could not obtain such an ID without having to surrender an out-of-state driver's license. See Fed.R.Civ.P. 23(a)(1) (class may not be certified unless "the class is so numerous that joinder of all members is impractical"). In moving for class certification, the plaintiffs identified college students and "snowbirds" — individuals who live in Wisconsin during warmer months and who live in other states during the winter — as the types of individuals who will likely possess an out-of-state driver's license yet be eligible to vote in Wisconsin. However, most college students will possess student photo ID cards issued by their colleges, and the evidence presented does not convince me that student ID cards issued by colleges or universities in Wisconsin will fail to meet Act 23's requirements. Thus, at this point, I have no reason to think that college students in Wisconsin must surrender any out-of-state IDs in their possession in order to vote. As for snowbirds, none testified at trial. The only evidence in the record pertaining to them is the testimony of a GAB employee who stated that he had heard from approximately ten individuals who complained about having to surrender their out-of-state driver's licenses to obtain Wisconsin ID cards. Tr. at 1687-88. This testimony does not demonstrate that the number of individuals who cannot vote without surrendering an out-of-state driver's license is "so numerous that joinder of all the members is impractical." Fed. R.Civ.P. 23(a)(1). No details with respect to these ten individuals were offered at trial, and it is possible that they possess some form of qualifying ID. Even assuming that these individuals lack Act 23-qualifying ID and could not obtain such ID without surrendering an out-of-state driver's license, it is not impractical to join ten individuals to a suit.
If a person who is qualified to vote in Wisconsin must be a resident of Wisconsin for driving purposes, then the only persons who could claim that having to surrender an out-of-state driver's license is a poll tax are persons who (a) are qualified to vote in Wisconsin, (b) never drive in Wisconsin, (c) possess a driver's license issued by another state, (d) occasionally drive in that other state, and (e) do not already possess a form of Act 23-qualifying ID. All other persons who are qualified to vote in Wisconsin and who wish to retain their driving privileges would be required to obtain a Wisconsin driver's license and surrender their out-of-state driver's license regardless of whether they intended to vote in Wisconsin. I doubt that there are many persons who would fit criteria (a) through (e), and the plaintiffs have not submitted evidence indicating that such persons exist. The students who testified at the trial admitted to driving in Wisconsin, and thus if they are residents for voting purposes they are required to have Wisconsin driver's licenses regardless of whether they wish to vote. Tr. at 698, 980-81. As noted, no snowbirds testified at trial, but in any event I doubt that a person who lives in Wisconsin during its warmer months never drives while in Wisconsin but drives in the state in which that person lives for the remainder of the year. Thus, the plaintiffs have not demonstrated that their proposed class satisfies the numerosity requirement of Rule 23(a)(1).
Plaintiffs Sam Bulmer, Carl Ellis, and Rickie Lamont Harmon seek to represent a class of veterans who possess photo identification cards issued by U.S. Department of Veterans Affairs.
The defendants argue that the claims of the proposed class representatives are moot because, during the pendency of this case, all of them were able to obtain a form of photo ID that is already accepted under Act 23. However, the injury for which the plaintiffs seek redress is their inability to use their veteran's ID for voting purposes. The plaintiffs' having obtained other IDs that they can use for voting purposes does not redress that injury. Although the inability to use a veteran's ID for voting purposes may seem like a minor injury in light of the plaintiffs' possession of another form of ID, it nonetheless is sufficient to give the plaintiffs "a direct stake in the outcome of the litigation." See United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 689 n. 14, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). The plaintiffs wish to use their veteran's ID for voting purposes, but the defendants will not allow them to. An injunction requiring the defendants to accept the plaintiffs' veteran's IDs would redress their injuries. Thus, the named plaintiffs continue to have standing, and their claims are not moot.
The defendants next argue that I may not certify the proposed class of veterans because the class would not satisfy the numerosity requirement of Rule 23(a)(1), because the claims of the named plaintiffs are not typical of the claims of the class, see Rule 23(a)(3), and because the named plaintiffs are not adequate class representatives, see Rule 23(a)(4). However, rather than addressing these issues, I will proceed to address the merits of the named plaintiffs' claims. I do this because,
The plaintiffs argue that it is arbitrary to exclude veteran's ID from the list of acceptable forms of ID when a veteran's ID is "just as secure" (i.e., just as likely to ensure that the person presenting it is who he or she claims to be) as other forms of Act 23-qualifying ID — namely, ID cards issued by a U.S. uniformed service ("military ID cards") and ID cards issued by federally recognized Indian tribes in Wisconsin ("tribal ID cards").
There is no dispute that veteran's ID is "just as secure" as some forms of military and tribal ID that are acceptable under Act 23. However, this does not make Wisconsin's decision to exclude veteran's ID arbitrary or irrational. The plaintiffs' argument implies that the state must accept all forms of photo ID that are "just as secure" as the least secure form of ID that is already on the list of accepted IDs. That would produce a very long list. The federal judiciary, for example, issues ID cards to its employees that contain the employee's name and photograph, as well as the date of issuance and an expiration date. Presumably, this card would be "just as secure" as a veteran's ID, tribal ID, or military ID. Moreover, many other federal, state, and local governmental agencies likely issue photo IDs to their employees that could be deemed "just as secure" as military IDs or tribal IDs. Under the plaintiffs' argument, those IDs would have to be accepted as well. Undoubtedly, many other forms of photo ID could be identified that are "just as secure" as the forms of ID already accepted under Act 23.
To be sure, Wisconsin probably could have included veteran's ID on the list of Act 23-qualifying ID without significantly increasing its administrative burden. However, for the reasons just discussed, the state had to draw the line between acceptable and unacceptable forms of ID somewhere. Drawing such a line "inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line, and the fact [that] the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration." Beach Communications, 508 U.S. at 315-16, 113 S.Ct. 2096 (internal quotation marks omitted). Thus, Wisconsin's decision to exclude veteran's ID from the list of acceptable forms of ID is "virtually unreviewable." Id. at 316, 113 S.Ct. 2096.
Moreover, one can conceive of reasons for wanting to expand the list of acceptable forms of ID to include military ID and tribal ID, even if they may be deemed "less secure" than some of the other forms of acceptable ID, but not expand the list to include veteran's ID. Military ID cards are issued to active-duty personnel and their family members (among others). These individuals tend to relocate more frequently than voters generally and for that reason may not reside in Wisconsin for long enough to find themselves in need of a Wisconsin driver's license or state ID card. Thus, the state could rationally conclude that military voters should be able to use their military ID cards at the polls, even though they may be "less secure" than other forms of ID.
As for tribal ID cards, they are issued by quasi-sovereign Indian tribes to their members. The state could rationally conclude that tribal ID cards hold the same
In their briefs and at oral argument, the plaintiffs relied heavily on Center for Inquiry, Inc. v. Marion Circuit Court Clerk, 758 F.3d 869 (7th Cir.2014). In that case, a group of secular humanists alleged that Indiana's marriage-solemnization statute violated the Religion Clauses of the First Amendment because it allowed solemnization by religious officials of certain religious groups but disallowed solemnization by equivalent officials of secular groups. The Seventh Circuit held that the statute violated the First Amendment by favoring religious groups over secular groups. But it also stated that the statute violated the Equal Protection Clause because it made irrational and absurd distinctions. Id. at 874-75. The plaintiffs contend that this case stands for the proposition that a state's desire for a finite list does not justify its exclusion of items from that list that otherwise could have been included. But that's not what the case says. Indiana did not defend its exclusion of secular humanists from its list of approved marriage celebrants on the ground that including them would open the door to an unmanageably long list. Indiana gave other reasons for excluding them. See id. at 874. Moreover, the reason the exclusion of humanists was irrational was that the statute "discriminated arbitrarily among religious and ethical beliefs." Id. at 875. The statute, for example, permitted officials of the Church of Satan, "whose high priestess avows that her powers derive from having sex with Satan," to solemnize marriages, yet precluded Buddhists, "who emphasize love an peace," from doing so. Id. As explained above, nothing like that is going on here. Wisconsin had a rational basis for including tribal and military IDs on the list of acceptable IDs yet excluding veteran's IDs.
Accordingly, the named plaintiffs are not entitled to an injunction requiring the state to accept veteran's ID cards for voting purposes. Their claims will be dismissed on the merits.
For the reasons stated,