In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 16‐3003 & 16‐3052
RUTHELLE FRANK, et al.,
Plaintiffs‐Appellees, Cross‐Appellants,
v.
SCOTT WALKER, in his official capacity as
Governor of the State of Wisconsin, et al.,
Defendants‐Appellants, Cross‐Appellees.
____________________
Nos. 16‐3083 & 16‐3091
ONE WISCONSIN INSTITUTE, INC., et al.,
Plaintiffs‐Appellees, Cross‐Appellants,
v.
MARK L. THOMSEN, et al.,
Defendants‐Appellants, Cross‐Appellees.
____________________
On Petitions for Initial Hearing En Banc
____________________
AMENDED AUGUST 29, 2016
____________________
2 Nos. 16‐3003, 16‐3052, 16‐3083 & 16‐3091
Before WOOD, Chief Judge, and POSNER, FLAUM,
EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, and
HAMILTON, Circuit Judges.
PER CURIAM. Before us are two sets of appeals and cross‐
appeals, each of which concerns Wisconsin’s law requiring
voters to have qualifying photo identification. In each matter,
one originating in the Eastern District of Wisconsin and the
other in the Western District of Wisconsin, the plaintiffs have
petitioned for initial review en banc. We have consolidated
their petitions for the purposes of this order. The plaintiffs ar‐
gue that only initial en banc treatment will permit a decision
in time for the court’s conclusions to be put into effect for the
election upcoming in November 2016. It is questionable
whether action on that schedule is feasible, given that Wis‐
consin will start printing absentee ballots at the end of this
month. We will assume for the sake of argument, however,
that this obstacle alone is not enough to deny the petitions.
There is a more important concern, however, which has to
do with the regularity of the judicial process. Whether this
court should try to resolve the parties’ disputes on such a
short schedule depends in part on whether qualified electors
will be unable to vote under Wisconsin’s current procedures.
In evaluating that question, we must take account of the con‐
clusions reached by the district court in the Western District
of Wisconsin in One Wisconsin Institute, Inc. v. Thomsen, No.
15‐CV‐324‐JDP, 2016 U.S. Dist. LEXIS 100178 (W.D. Wis. July
29, 2016). The Eastern District of Wisconsin, in the decision
under review in Nos. 16‐3003 and 16‐3052, concluded that
every registered voter should be allowed to vote if he or she
signs an affidavit stating that obtaining a qualifying photo ID
would be unreasonably hard. A panel of this court has stayed
Nos 16‐3003, 16‐3052, 16‐3083 & 16‐3091 3
that order. See Order, Frank v. Walker, Nos. 16‐3003 & 16‐3052
(7th Cir. Aug. 10, 2016). The Western District, by contrast, de‐
clined to adopt the affidavit procedure but required Wiscon‐
sin to reform its ID Petition Process (IDPP), revised in May in
response to this court’s decision in Frank v. Walker, 819 F.3d
384 (7th Cir. 2016) (Frank II).
Frank II held that “[t]he right to vote is personal and is not
defeated by the fact that 99% of other people can secure the
necessary credentials easily”, and that the state may not frus‐
trate this right for any eligible person by making it unreason‐
ably difficult to obtain a qualifying photo ID. Id. at 386. The
district court in One Wisconsin Institute concluded from this
that an eligible voter who submits materials sufficient to ini‐
tiate the IDPP is entitled to a credential valid for voting, un‐
less readily available information shows that the petitioner is
not a qualified elector. The court in One Wisconsin Insti‐
tute also held that the state must inform the general public
that those who enter the IDPP will promptly receive a creden‐
tial valid for voting, unless readily available information
shows that the petitioner is not a qualified elector entitled to
such a credential. 2016 U.S. Dist. LEXIS 100178 at *181–82.
This court denied the State’s motion to stay the Western Dis‐
trict’s injunction pending appeal. See Order, One Wis. Inst.,
Inc. v. Thomsen, Nos. 16‐3083 & 16‐3091 (7th Cir. Aug. 22,
2016).
The State assures us that the temporary credentials re‐
quired in the One Wisconsin Institute decision will indeed be
available to all qualified persons who seek them. In its re‐
sponse to the petition for initial hearing en banc in Nos. 16‐
3003 and 16‐3052, it said this: ʺ[T]he State has already volun‐
tarily accommodated any concerns relating to the November
4 Nos. 16‐3003, 16‐3052, 16‐3083 & 16‐3091
2016 election. Specifically, Wisconsin has enacted a rule that
requires the Division of Motor Vehicles (‘DMV’) to mail auto‐
matically a free photo ID to anyone who comes to DMV one
time and initiates the free ID process. See Wis. EmR1618, § 10.
No one must present documents, that, for some, have proved
challenging to acquire; no one must show a birth certificate,
proof of citizenship, and the like. Id. § 6.” Resp. to Pet. For
Initial Hr’g En Banc at 1, Frank v. Walker, Nos. 16‐3052 & 16‐
3003 (7th Cir. Aug. 8, 2016) (emphasis in original).
Given the State’s representation that “initiation” of the
IDPP means only that the voter must show up at a DMV with
as much as he or she has, and that the State will not refuse to
recognize the “initiation” of the process because a birth certif‐
icate, proof of citizenship, Social Security card, or other par‐
ticular document is missing, we conclude that the urgency
needed to justify an initial en banc hearing has not been
shown. Our conclusion depends also on the State’s compli‐
ance with the district court’s second criterion, namely, that the
State adequately inform the general public that those who en‐
ter the IDPP will promptly receive a credential for voting, un‐
less it is plain that they are not qualified. The Western District
has the authority to monitor compliance with its injunction,
and we trust that it will do so conscientiously between now
and the November 2016 election.
On these understandings, the petitions for initial hearing
en banc are DENIED.