In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-‐‑3582
RUTHELLE FRANK, et al.,
Plaintiffs-‐‑Appellants,
v.
SCOTT WALKER, Governor of Wisconsin, et al.,
Defendants-‐‑Appellees.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 11-‐‑C-‐‑01128 — Lynn Adelman, Judge.
____________________
ARGUED APRIL 7, 2016 — DECIDED APRIL 12, 2016
____________________
Before EASTERBROOK, KANNE, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. In 2011 Wisconsin enacted a
statute requiring voters to present photographic identifica-‐‑
tion. 2011 Wis. Act 23. A federal district judge found that the
statute violates the Constitution as well as the Voting Rights
Act and enjoined its application across the board. 17 F. Supp.
3d 837 (E.D. Wis. 2014). We reversed that decision. 768 F.3d
744 (7th Cir. 2014).
2 No. 15-‐‑3582
After the Supreme Court declined to accept the case, 135
S. Ct. 1551 (2015), one of the two sets of plaintiffs asked the
district court to take up some issues that it had not previous-‐‑
ly resolved. The judge then rejected on the merits plaintiffs’
contention that Wisconsin violated the Equal Protection
Clause by declining to accept veterans’ identification cards.
See 2015 U.S. Dist. LEXIS 141805 (E.D. Wis. Oct. 19, 2015) at
*23–34. The state legislature soon amended Act 23 to require
election officials to accept veterans’ IDs. 2015 Wis. Act 261
§2. The parties agree that this makes that slice of the litiga-‐‑
tion moot, and we vacate the district court’s decision on that
subject and remand with instructions to dismiss this aspect
of the complaint as moot. See United States v. Munsingwear,
Inc., 340 U.S. 36 (1950).
The district court dispatched two other challenges as
well, see 2015 U.S. Dist. LEXIS 141805 at *9–23, and plaintiffs
have not contested those portions of the decision on appeal.
But the district court declined to address plaintiffs’ principal
argument—that some persons qualified to vote are entitled
to relief because they face daunting obstacles to obtaining
acceptable photo ID. The court ruled that all arguments re-‐‑
lating to the difficulty of obtaining photo ID were before this
court in 2014 and that our mandate leaves no room for fur-‐‑
ther debate. Id. at *5–9. Plaintiffs appeal this part of the dis-‐‑
trict court’s decision, contending that the judge misunder-‐‑
stood the scope of our mandate.
Plaintiffs want relief for three classes of persons: (1) eligi-‐‑
ble voters unable to obtain acceptable photo ID with reason-‐‑
able expense and effort because of name mismatches or oth-‐‑
er errors in birth certificates or other necessary documents;
(2) eligible voters who need a credential from some other
No. 15-‐‑3582 3
agency (such as the Social Security Administration) that will
not issue the credential unless Wisconsin’s Department of
Motor Vehicles first issues a photo ID, which the DMV won’t
do until the other credential has been obtained; (3) eligible
voters who need a document that no longer exists (such as a
birth certificate issued by an agency whose records have
been lost in a fire). We refer to these three categories collec-‐‑
tively as inability to obtain a qualifying photo ID with rea-‐‑
sonable effort, though the gastonette in category (2) and the
loss of documents in category (3) may amount to impossibil-‐‑
ity rather than just difficulty. Plaintiffs maintain that pre-‐‑
venting persons in these categories from voting for the rest
of their lives would violate the Constitution, as understood
in decisions such as Anderson v. Celebrezze, 460 U.S. 780
(1983), and Burdick v. Takushi, 504 U.S. 428 (1992).
The scope of an appellate mandate depends on what the
court decided—and we did not decide that persons unable
to get a photo ID with reasonable effort lack a serious griev-‐‑
ance. The district court had held in 2014 that, because some
voters face undue difficulties in obtaining acceptable photo
IDs, Wisconsin could not require any voter to present a pho-‐‑
to ID. And the district judge had included in the set of peo-‐‑
ple encountering undue difficulty many who could get a
state-‐‑issued photo ID but disliked the hassle. For example,
the judge thought that persons who lack birth certificates but
could get them on request, and those who have birth certifi-‐‑
cates but have not used them to get a state-‐‑issued photo ID,
were among those facing undue difficulties.
We reversed that injunction as incompatible with Craw-‐‑
ford v. Marion County Election Board, 553 U.S. 181 (2008), in
which the Supreme Court held that Indiana’s voter-‐‑ID stat-‐‑
4 No. 15-‐‑3582
ute is valid notwithstanding the same sort of critiques the
district court leveled against Wisconsin’s. In Crawford the
lead opinion concluded: “For most voters who need them,
the inconvenience of making a trip to the [department of
motor vehicles], gathering the required documents, and pos-‐‑
ing for a photograph surely does not qualify as a substantial
burden on the right to vote, or even represent a significant
increase over the usual burdens of voting.” 553 U.S. at 198.
The Court added that an across-‐‑the-‐‑board injunction would
be improper because “[t]he application of the statute to the
vast majority of Indiana voters is amply justified” (id. at 204).
That is equally true in Wisconsin, we held. It followed that
the burden some voters faced could not prevent the state
from applying the law generally.
The argument plaintiffs now present is different. Instead
of saying that inconvenience for some voters means that no
one needs photo ID, plaintiffs contend that high hurdles for
some persons eligible to vote entitle those particular persons
to relief. Plaintiffs’ approach is potentially sound if even a
single person eligible to vote is unable to get acceptable pho-‐‑
to ID with reasonable effort. The right to vote is personal
and is not defeated by the fact that 99% of other people can
secure the necessary credentials easily. Plaintiffs now accept
the propriety of requiring photo ID from persons who al-‐‑
ready have or can get it with reasonable effort, while en-‐‑
deavoring to protect the voting rights of those who encoun-‐‑
ter high hurdles. This is compatible with our opinion and
mandate, just as it is compatible with Crawford.
Indeed, one may understand plaintiffs as seeking for
Wisconsin the sort of safety net that Indiana has had from
the outset. A person seeking to vote in Indiana who con-‐‑
No. 15-‐‑3582 5
tends that despite effort he has been unable to obtain a com-‐‑
plying photo ID for financial or religious reasons may file an
affidavit to that effect and have his vote provisionally count-‐‑
ed. See 553 U.S. at 186 & n.2, 199. No one contended in this
court in 2014 that such an accommodation was essential to
the validity of Indiana’s law, and neither our opinion nor the
Supreme Court’s decision in Crawford forecloses such an ar-‐‑
gument. Wisconsin’s rules for casting provisional ballots,
unlike those of Indiana, require a voter who does not present
an acceptable photo ID at the polling place to present such
an ID by the end of the week. Wis. Stat. §6.97. Under Wis-‐‑
consin’s current law, people who do not have qualifying
photo ID thus cannot vote, even if it is impossible for them
to get such an ID. Plaintiffs want relief from that prohibition,
not from the general application of Act 23 to the millions of
persons who have or readily can get qualifying photo ID.
Wisconsin contends that, although our decision did not
consider (let alone reject) any contention for relief on behalf
of persons who just can’t get acceptable photo ID with rea-‐‑
sonable effort, plaintiffs forfeited their arguments by not ad-‐‑
vancing them as alternative grounds for affirming the dis-‐‑
trict court’s injunction. The Supreme Court has held that an
appellee may defend its judgment with any properly pre-‐‑
served argument, even if the district court bypassed or re-‐‑
jected that argument. See, e.g., Massachusetts Mutual Life In-‐‑
surance Co. v. Ludwig, 426 U.S. 479 (1976). That’s what plain-‐‑
tiffs had to do, Wisconsin insists.
There are two problems with the state’s position, one fac-‐‑
tual and the other legal. The factual problem is that the sort
of argument plaintiffs now present would not have justified
affirmance: recall that the injunction forbade the state to re-‐‑
6 No. 15-‐‑3582
quire any voter to present photo ID. The predicament of
people who cannot get acceptable photo ID with reasonable
effort would not have supported the sweeping injunction the
district court entered. The legal problem is that the ability to
make an alternative argument in defense of the district
court’s judgment is a privilege, not an obligation.
Transamerica Insurance Co. v. South, 125 F.3d 392, 399 (7th Cir.
1997); Schering Corp. v. Illinois Antibiotics Co., 89 F.3d 357, 358
(7th Cir. 1996). “[F]orcing appellees to put forth every con-‐‑
ceivable alternative ground for affirmance might increase
the complexity and scope of appeals more than it would
streamline the progress of the litigation.” Okoro v. Callaghan,
324 F.3d 488, 489–90 (7th Cir. 2003), quoting Crocker v. Pied-‐‑
mont Aviation, Inc., 49 F.3d 735, 740 (D.C. Cir. 1995). A theory
left open in both the district court and the court of appeals
remains open in the district court.
Wisconsin also maintains that plaintiffs forfeited their
current argument by not pleading it as a separate count in
their complaint. The district judge did not reject plaintiffs’
claim for that reason, however, and would not have been
justified in doing so. Defendants suppose that complaints
must contain as many counts as plaintiffs have legal theo-‐‑
ries—one count per theory. Some plaintiffs structure their
complaints that way, but Fed. R. Civ. P. 8 does not require
them to do so. Complaints are supposed to be “short and
plain”, in the language of Rule 8(a)(2). A complaint must
narrate a plausible grievance; it need not set out a legal theo-‐‑
ry or cite authority. See, e.g., Johnson v. Shelby, 135 S. Ct. 346
(2014); Bartholet v. Reishauer A.G. (Zürich), 953 F.2d 1073 (7th
Cir. 1992). Nor need plaintiffs put each kind of relief in a
separate count. Although Rule 8(a)(3) says that a complaint
must include “a demand for the relief sought, which may
No. 15-‐‑3582 7
include relief in the alternative or different types of relief”
(which can be done in a single count), Rule 54(c) adds that
the district court “should grant the relief to which each party
is entitled, even if the party has not demanded that relief in
its pleadings.” If plaintiffs are entitled to relief for those of
their number who cannot obtain qualifying photo ID with
reasonable effort, nothing in the way they structured their
complaint poses an obstacle.
Because the district court did not address the substance
of plaintiffs’ argument, we do not do so either. After the rec-‐‑
ord closed in the district court, the Supreme Court of Wis-‐‑
consin instructed state officials not to condition issuance of
voting identification on any person’s failure to obtain docu-‐‑
ments for which a governmental agency requires a fee. See
Milwaukee Branch of NAACP v. Walker, 2014 WI 98 ¶¶ 66–71,
79. The state’s administrative agencies may have made other
adjustments since the end of discovery. The district court
should permit the parties to explore how the state’s system
works today before taking up plaintiffs’ remaining substan-‐‑
tive contentions.
The portions of the district court’s decision that have not
been appealed stand. The portion that concerns veterans’ ID
is vacated, and the case is remanded with instructions to
dismiss that aspect of the litigation as moot. The remainder
of the decision is vacated, and the case is remanded for pro-‐‑
ceedings consistent with this opinion.