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What Happens When Judges Don’t Look At A Calendar

A recent ruling by the 7th Circuit has thrown the Wisconsin gubernatorial race into chaos.

September 19, 2014

As America lurches back into a renewed war in Iraq, it is worth remembering that close elections like the 2000 presidential race can reverberate for decades. Or take the 1948 Texas Senate primary that Lyndon Johnson won…err…stole by 87 votes. Without LBJ in the Senate, someone like Senator Stuart Symington or Governor Orville Freeman would have been John Kennedy’s running mate in 1960. And, most likely, we would not be celebrating the 50th anniversaries of the 1964 Civil Rights Act this year and Medicare next year.

All this brings us to Wisconsin Governor Scott Walker, who always shows up towards the top of the smart-money lists of likely 2016 Republican nominees. Running for a second term, Walker (who also survived a 2012 recall election) is locked in a knife-edge race against Democrat Mary Burke. Over the last two months, there have been seven published polls on the Wisconsin gubernatorial campaign. Six have been within the margin of error—a symbol of a race that is essentially tied and will depend on turnout.

Last week the 7th Circuit Court of Appeals tied the knots of confusion even tighter in Wisconsin with a baffling decision. Just 52 days before the election, the federal appeals court said that Wisconsin had to abide by a 2011 voter ID law that had been blocked by judicial action since shortly after it was signed into law.

The three-member court of appeals panel appeared oblivious to the reality that Wisconsin had already received nearly 12,000 absentee ballot requests under the prior rules without photo ID. It obviously never occurred to the judges that the state board of elections does not have the money or the time to mount an advertising campaign to inform voters of the new ID requirements. And even though the 2011 law allows for student IDs to be used to prove eligibility to vote, the court of appeals almost certainly never realized that the major campuses of the University of Wisconsin have not issued identification cards that comply with the 2011 statute.

Voter identification laws—and the politically hyped hysteria over rare-as-unicorns election fraud—are bad enough. But, at least, they allow time for voters, political parties and good-government groups to develop work-arounds. Citizens without drivers’ licenses or passports can learn what alternative forms of identification are accepted at the polls—and how to get them.

But what is happening in Wisconsin is judicially ordered chaos. Consider the plight of those citizens—maybe a retired couple in Appleton planning to spend November in Florida—who dutifully requested an absentee ballot before the appeals court ruled on September 12. Technically, they are in violation of the law because they did not submit a copy of their identification with the absentee ballot request form—even though none was requested. So if they promptly returned the actual absentee ballot, their votes would not be counted.

Luckily, there is a sure-fire solution. According to Kevin Kennedy, Wisconsin’s top election official, county clerks will work extra hard to make sure these eager absentee voters are informed about the new ID requirements. Maybe that might be successful in a rural area where a dedicated county clerk might pick up the telephone or write a personal note. But anyone with any experience with under-funded election bureaucracies cannot have much faith that the remedy will work in Milwaukee or the heavily populated counties that surround it.

And that doesn’t even get into the larger problem of voters who only learn about the ID requirement when they show up at their polling place on Election Day. (Remember the state doesn’t have any money to advertise like they did when the law originally passed in 2011). Or students who only discover too late that their University of Wisconsin ID cards are not valid voting documents because they don’t have signatures on them and weren’t issued in the last two years, as the law requires.

The decision by the three-judge panel to apply the Wisconsin voter ID law to November’s election has been  appealed to the full 7th Circuit. But that appeal is being handled in languid fashion with the state of Wisconsin not being required to file their response until September 23, just six weeks before the election. The whole legally mandated mess serves as a reminder of what Sam Rayburn said about the experts who John Kennedy brought in as his White House advisers, “I’d feel a whole lot better about them if just one of them had run for sheriff once.”

So imagine Scott Walker as a formidable contender for the Republication presidential nomination if he ekes out a reelection victory in November. (Remember those disenfranchised University of Wisconsin students). Or imagine the end of Scott Walker’s career if he loses narrowly to Mary Burke. (Remember that disenfranchised retiree couple from Appleton).

Either outcome could shape American politics in 2016—and beyond. Unfortunately, Wisconsin’s verdict in November could well be determined by a heedless decision by a federal appeals court just seven weeks before the election.

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.

Walter Shapiro is an award-winning political columnist who has covered the last nine presidential campaigns. Along the way, he has worked for The Washington Post, Newsweek, Time, Esquire, USA Today and, most recently, Yahoo News. He is also a lecturer in political science at Yale UniversityHe can be reached by email at and followed on Twitter @MrWalterShapiro.

(Photo: Thinkstock)