Wisconsin ACLU Files Photo ID Case for Supreme Court Review

voterID_demo.jpegBecause Wisconsin will hold elections on February 17 (primaries) and April 7, many people want to know whether voters will be required to show a valid photo ID at the polls. The answer to that question depends on the procedures of the Supreme Court of the United States and their timing. Here's what's happening and how it is likely to play out.

On January 7, 2015, the American Civil Liberties Union of Wisconsin (ACLU), along with Arnold & Porter and the Advancement Project, filed a petition for a writ of certiorari with the Supreme Court.  The State has until February 9, 2015, to file a response. The petition and opposition will then be distributed to the Court for consideration 14 days after the response. The ACLU can file a reply brief in that 14-day window, but the reply does not affect the date of distribution. The case will likely be distributed on February 23, 2015.  Once the case is distributed, it is reviewed by a pool of the Justices' law clerks, one of whom drafts a pool memorandum (with brief analysis and a recommendation to grant or deny) that is distributed to the Justices’ individual chambers for further review by law clerks and the Justices. Most petitions are effectively denied at this point without further review or discussion. 

Potentially “cert-worthy” petitions are scheduled for discussion and a vote at one of the Court’s Friday conferences, usually two or three weeks after the case is distributed.  (Unless the briefing schedule changes, the ACLU’s case likely will be listed for the conference on March 20, 2015.) At least four of the nine Justices must vote in favor for certiorari to be granted.  Decisions to grant or deny certiorari are often announced in orders issued the following Monday.  (So this case could be granted or denied as soon as March 23, 2015.) However, some cases discussed at a conference are “relisted” for a subsequent conference to allow further review and/or discussion.  For the past two terms, it seems that most of the petitions that are granted review are relisted at least once, possibly to ensure that there are no undetected jurisdictional problems that would require dismissal later. 

Given this schedule, it is highly unlikely that the Supreme Court would take any action prior to the February primary elections, meaning the ID requirement will not be in effect for that election.  If the Supreme Court grants certiorari, argument will probably not be scheduled until the next term, starting in October 2015, and the ID requirement will be enjoined during the entire process of making a final decision on the case. However, if the Court denies certiorari, it is possible that the denial will come before the April elections. If that were to happen, it is possible that ID will be required for the April election.  So people should be encouraged to try to get an acceptable ID (drivers license and state ID cards are the most common) as soon as they can and let the ACLU know if they have problems getting one.

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