Monday, August 15, 2016

I doubt very much that I will get around to doing even a first draft of an amicus to the 7th circuit in the current round of Frank v Walker, where plaintiffs have moved to have the court en banc reconsider the stay of the affidavit type relief from voter ID.

But if I were to outline something like that, .. here goes a bit of thinking out loud so to type.

The full court en banc should reconsider the panel's decision to stay the relief ordered by the district court. The case is of great importance. Twice before, the circuit en banc has split 5-5 in voter ID cases, first Crawford then Frank. Both times the Supreme Court took action. In Crawford, the Court split 3-3-3. In Frank I, the Court granted a stay for the 2014 general election.
Fair elections, and public perception of fair elections, are at stake.
The public should not be left with the feeling that the case was determined by the luck of the draw off the panel selection.

The court en banc has several options before it.

A. It could of course uphold the panel decision.
B. It could modify the relief, with perhaps a more narrow population having access to the affidavit option.
C. It could reinstate the relief granted below. Extrapolating from past voting patterns, there are likely to be 5 votes for this option.
D. It could use the opportunity to entirely temporarily enjoin the  voter ID program, effectively reversing Frank I.

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