                            In the

    United States Court of Appeals
               For the Seventh Circuit
                   ____________________

Nos. 14-2058 & 14-2059
RUTHELLE FRANK, et al.,
                                             Plaintiffs-Appellees,

                               v.

SCOTT WALKER, Governor of Wisconsin, et al.,
                                    Defendants-Appellants.
                   ____________________
LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC) OF
WISCONSIN, et al.,
                                    Plaintiffs-Appellees,

                               v.

DAVID G. DEININGER, Member, Government Accountability
Board, et al.,
                                 Defendants-Appellants.
                   ____________________

                 On Motion for Reconsideration.
                   ____________________

               DECIDED SEPTEMBER 26, 2014 —
            OPINIONS ISSUED SEPTEMBER 30, 2014
                  ____________________
2                                       Nos. 14-2058 & 14-2059

    Before EASTERBROOK, SYKES, and TINDER, Circuit Judges.
    PER CURIAM. Last April a district court enjoined the ap-
plication of 2011 Wis. Act 23, which requires a photo ID for
voting, even though Wisconsin’s law is comparable to Indi-
ana’s, which the Supreme Court upheld in Crawford v. Marion
County Election Board, 553 U.S. 181 (2008). After the district
court’s decision, the Supreme Court of Wisconsin reversed
two similar injunctions issued by state courts but ordered
state officials to make it easier for registered voters to obtain
documentation (such as birth certificates) that they may
need to obtain photo IDs, or to waive the documentation re-
quirement if obtaining birth certificates proves difficult or
expensive. League of Women Voters v. Walker, 2014 WI 97 (July
31, 2014); Milwaukee Branch of NAACP v. Walker, 2014 WI 98
(July 31, 2014). With the state injunctions lifted, Wisconsin
asked us to stay the federal injunction so that it could use the
photo ID requirement in this fall’s election. After receiving
briefs and hearing oral argument on the merits of the state’s
appeal, we granted the motion for a stay. Plaintiffs ask us to
reconsider that decision.
    When a court is asked to issue a stay, the first and most
important question is whether the applicant has made a
strong showing that it is likely to succeed on the merits. See,
e.g., Nken v. Holder, 556 U.S. 418, 434 (2009). We thought this
standard satisfied, given Crawford, League of Women Voters,
and Milwaukee Branch of NAACP. None of these decisions is
dispositive, because the district judge made findings of fact
different from those that the Supreme Court of the United
States and the Supreme Court of Wisconsin had before them.
But those decisions give Wisconsin a strong prospect of suc-
cess on appeal.
Nos. 14-2058 & 14-2059                                           3

    A second important consideration is the public interest in
using laws enacted through the democratic process, until the
laws’ validity has been finally determined. This is the view
the Supreme Court has taken in the same-sex-marriage cases
now before it. Even after federal courts held some states’
laws invalid, the Court issued stays so that the laws remain
in effect pending final resolution. See McQuigg v. Bostic, No.
14A196 (S. Ct. Aug. 20, 2014); Herbert v. Evans, No. 14A65 (S.
Ct. July 18, 2014). This court has followed the same approach
for Wisconsin’s and Indiana’s marriage laws. After holding
them unconstitutional, see Baskin v. Bogan, No. 14-2386 (7th
Cir. Sept. 4, 2014), we nonetheless issued stays so that they
could remain in force pending final decision by the Supreme
Court. Our panel concluded that Wisconsin’s photo ID law
should be handled in the same way. Indiana has required
photo ID at every election since 2005; it is hard to see why
Wisconsin cannot do the same, while the validity of its stat-
ute remains under review.
     Plaintiffs’ motion for reconsideration asserts that the stay
“imposes a radical, last-minute change” in election proce-
dures and “virtually guarantees substantial chaos”, contrary
to decisions such as Purcell v. Gonzalez, 549 U.S. 1 (2006).
Plaintiffs tell us that the state’s election officials will be una-
ble to prepare properly during the 53 days between the stay
(September 12, 2014) and the next election (November 4,
2014). This overlooks the fact that the state’s election officials
themselves asked for the stay. Whether 53 days (more than
seven weeks) is long enough to make changes is a question
of fact on which the record in this litigation is silent. Plain-
tiffs have offered their beliefs, which undoubtedly are sin-
cerely held, but not evidence.
4                                       Nos. 14-2058 & 14-2059

    Act 23 was enacted in May 2011, and only persons with
photo ID were allowed to vote in the February 2012 primary
election. The procedures having been formulated, and voters
having had time to get qualifying IDs, the state would have
continued to enforce Act 23, but for two injunctions (since
reversed) issued by state judges after the February 2012 pri-
mary. Wisconsin therefore is not starting from scratch in Sep-
tember 2014. It would be extraordinary for a federal court to
tell state officials that they are forbidden to implement a state
law, just because federal judges predict that they will turn
out to be wrong in thinking that 7+ weeks, plus work done
between May 2011 and the district court’s injunction in April
2014, is enough.
    The stay this court has issued does not “impose” any
change. It lifts a federal prohibition and permits state offi-
cials to proceed as state law allows or requires. Our order of
September 12 was explicit: “The State of Wisconsin may, if it
wishes (and if it is appropriate under rules of state law), en-
force the photo ID requirement in this November’s elec-
tions.” If seven weeks is too short, then state officials need
not make any change; nothing has been “imposed” on them.
Whether to use the photo ID requirement, in the absence of a
federal injunction, is a matter of state law, for determination
by Wisconsin’s executive and judicial branches. Wisconsin
could decide, for example, that it would be too cumbersome
to implement the change with respect to this year’s absentee
ballots, but not with respect to live voting in November. Our
decision does not foreclose such a possibility.
   Purcell, on which plaintiffs rely, dealt with a judicial or-
der, issued less than five weeks before an election, forbid-
ding use of Arizona’s voter ID requirement. Without giving
Nos. 14-2058 & 14-2059                                         5

reasons, the Ninth Circuit required a state to depart from
procedures established by state law; the Supreme Court held
this to be improper. (The court of appeals later held that Ari-
zona’s ID requirement is valid, reinforcing the conclusion
that it had been a mistake to enjoin it. See Gonzalez v. Arizona,
677 F.3d 383, 404–10 (9th Cir. 2012) (en banc).) In this case, by
contrast, the court has not compelled the state to do any-
thing; instead it has permitted the state to enforce a statute
that the state tells us it wants (and is able) to enforce. There
is a profound difference between compelling a state to de-
part from its rules close to the election (Purcell) and allowing
a state to implement its own statutes (this case).
     According to plaintiffs, equitable considerations favor
leaving the injunction in force because many voters who to-
day lack acceptable photo IDs will be unable to get them be-
fore November’s election. Yet Act 23 was enacted in May
2011. Voters in Wisconsin who did not already have a docu-
ment that Wisconsin accepts (a driver’s license, for example)
have had more than three years to get one. The statute gave
voters eight months to acquire necessary documents before
Act 23’s first implementation (in the February 2012 primary);
a further two years and nine months will have passed by this
fall’s election.
   The district judge did not find that any particular num-
ber of registered voters in Wisconsin has tried, but been un-
able, to obtain one of the several kinds of photo ID that Wis-
consin will accept at the polls. The judge did observe that
eight persons testified that they had tried and failed but did
not decide whether their experience is representative, or
even whether their testimony was accurate. After the district
court’s decision, the Supreme Court of Wisconsin fixed the
6                                      Nos. 14-2058 & 14-2059

problems these eight said they had encountered. The num-
ber of registered voters without a qualifying photo ID
(which the judge estimated at 300,000, or 9% of the 3,318,000
total) thus appears to reflect how many persons have not
taken the necessary time, rather than a number of persons
who have been disfranchised. We do not apply the label
“disfranchised” to someone who has elected not to register,
even though that step also requires an investment of time. In
Wisconsin approximately 78% of those eligible have regis-
tered to vote, and approximately 74% of those who did reg-
ister cast votes in the last presidential election. Both figures
are lower than the 91% who already possess acceptable pho-
to IDs, yet no one infers from the 78% registration propor-
tion or the 74% voting proportion that Wisconsin has dis-
franchised anyone.
    Crawford concluded that requiring would-be voters to
spend time to obtain photographic identification does not
violate the Constitution. “For most voters who need them,
the inconvenience of making a trip to the [department of mo-
tor vehicles], gathering the required documents, and posing
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 burden of getting a photo ID in Wisconsin is not materi-
ally different from the burden that Crawford deemed ac-
ceptable.
     The motion for reconsideration is denied.
     A judge called for a vote on the request for a hearing en
banc. That request is denied by an equally divided court.
Chief Judge Wood and Judges Posner, Rovner, Williams, and
Hamilton voted to hear this matter en banc.
Nos. 14-2058 & 14-2059                                          7

    WILLIAMS, Circuit Judge, with whom WOOD, Chief Judge,
and POSNER, ROVNER, and HAMILTON, Circuit Judges, join,
dissenting from the denial of rehearing en banc. After absen-
tee ballots had already been mailed and then returned with
ballots cast, and with this November’s elections fast ap-
proaching, the panel issued an order staying the district
court’s injunction and authorizing Wisconsin to require vot-
er identification in elections that are only weeks away. Our
court should not have altered the status quo in Wisconsin so
soon before its elections. And that is true whatever one’s
view on the merits of the case. Our stay order was improper,
and it should not stand.
    This stay will substantially injure numerous registered
voters in Wisconsin, and the public at large, with no appre-
ciable benefit to the state. Cf. Nken v. Holder, 556 U.S. 418, 434
(2009) (providing factors court is to consider when deciding
whether to issue stay: (1) whether the stay applicant has
made a strong showing that he is likely to succeed on the
merits; (2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will substan-
tially injure the other parties interested in the proceeding;
and (4) where the public interest lies). To alter the status quo
so soon before an election, and with the state’s “election ma-
chinery already in progress,” Reynolds v. Sims, 377 U.S. 533,
585 (U.S. 1964), will have significant impact. The district
court found that 300,000 registered voters—registered voters,
not just persons eligible to vote—lack the most common
form of identification needed to vote in the upcoming elec-
tions in Wisconsin. (To put this number in context, the 2010
governor’s race in Wisconsin was decided by 124,638 votes
and the election for United States Senator by 105,041 votes.)
And how does the state reply to the fact that numerous regis-
8                                         Nos. 14-2058 & 14-2059

tered voters do not have qualifying identification with elec-
tions so imminent? It brazenly responds that the district
court found that “more than 90% of Wisconsin’s registered
voters already have a qualifying ID” and can vote and that
“the voter ID law will have little impact on the vast majority
of voters.” But the right to vote is not the province of just the
majority. It is not just held by those who have cars and so
already have driver’s licenses and by those who travel and
so already have passports. The right to vote is also held, and
held equally, by all citizens of voting age. It simply cannot
be the answer to say that 90% of registered voters can still
vote. To say that is to accept the disenfranchisement of 10%
of a state’s registered voters; for the state to take this position
is shocking.
    It is simply impossible—as a matter of common sense
and of logistics—that hundreds of thousands of Wisconsin’s
voters will both learn about the need for photo identification
and obtain the requisite identification in the next 36 days (26
business days). Doing so would require the state to issue
around 6,000 photo identifications per day up to the election.
Yet obtaining the necessary identification can take months
for voters who were born outside Wisconsin and who lack
birth certificates. Make no mistake, that is no small number
of the registered voters at issue. See Frank v. Walker, 2014 WL
1775432, at *13 (E.D. Wis. 2014) (nearly 50% of eligible voters
in Milwaukee County who lack both accepted photo identi-
fication and valid birth certificate were born outside Wiscon-
sin). And for the registered voter in Wisconsin lucky enough
to already have all the documents who must then get identi-
fication through the Department of Motor Vehicles, most
DMV offices in Wisconsin are only open two days a week
(and these are weekdays, not weekends).
Nos. 14-2058 & 14-2059                                         9

    Those thousands of absentee ballots that were mailed to
voters before the panel’s order? They do not count when re-
turned in the manner their instructions direct, for they do
not comply with the Wisconsin voter identification law. That
is true for the absentee ballots that voters had already sent
back in before the panel’s order, and any returned from here
until the election. Cf. Nader v. Blackwell, 230 F.3d 833, 834-35
(6th Cir. 2000) (improper to change party-identification pro-
cedures after absentee ballots already mailed); Perry v. Judd,
471 Fed. Appx. 219, 227 (4th Cir. Jan. 17, 2012) (unpublished)
(changing rules after absentee ballots printed would be im-
proper).
    Changing the rules so soon before the election is contrary
not just to the practical realities of an impending election,
but it is inconsistent with the Supreme Court’s approach to
such cases. In Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curi-
am), for example, the district court had declined to enjoin a
voter ID law, but then the Ninth Circuit issued an emergen-
cy stay. The Supreme Court unanimously reversed the ap-
pellate court’s last-minute reversal of the district court. It
cautioned that court orders affecting elections can lead to
“voter confusion and consequent incentive to remain away
from the polls,” and it said that this risk increases as an elec-
tion draws closer. Id. at 4-5. Purcell was not the first time the
Court recognized these realities. See, e.g., Williams v. Rhodes,
393 U.S. 23, 34-35 (1968) (denying requested relief, despite
unconstitutionality of statute, because “the confusion that
would attend such a last-minute change poses a risk of inter-
ference with the rights of other Ohio citizens” and “relief
cannot be granted without serious disruption of election
process”); Reynolds, 377 U.S. at 585 (“where an impending
election is imminent and a State’s election machinery is al-
10                                      Nos. 14-2058 & 14-2059

ready in process, equitable considerations might justify a
court in withholding the granting of immediately effective
relief”); see also Westermann v. Nelson, 409 U.S. 1236, 1236-37
(1972) (Douglas, J., in chambers) (denying request to have
candidate’s name printed on ballot where absentee ballots
had already been sent and returned even though “[t]he
complaint may have merit” because “the time element is
short,” the “election machinery is already underway,” and
“orderly election processes would likely be disrupted by so
late an action”). Here, too, the status quo before the panel’s
order should be restored—the status quo that all in Wiscon-
sin had been operating under, and the status quo that if not
restored will irreparably harm registered voters in Wiscon-
sin. We, as “the Court of Appeals,” are “required to weigh
… considerations specific to election cases,” and to “give
deference to the discretion of the District Court,” and we
must do this because the Supreme Court tells us to. Purcell,
549 U.S. at 4. Weighing those considerations properly here
would mean the stay would not stand.
    A full discussion on the merits will wait for another day,
but a likelihood of success on the merits is one factor in the
stay decision, see Nken, 556 U.S. at 434, and the panel’s grant
of the stay seems premised on a conclusion that the state is
likely to succeed on the merits in light of Crawford v. Marion
County Election Board, 553 U.S. 181 (2008). That premise is
dead wrong. The Supreme Court opinion in Crawford made
very clear that its decision was specific to the evidence in the
record in that case. Or, to be more precise, to the complete
and utter lack of evidence. The Court pointed out that the
district court there found that the petitioners “had ‘not in-
troduced evidence of a single, individual Indiana resident
who will be unable to vote as a result of [Indiana’s voter
Nos. 14-2058 & 14-2059                                        11

identification law] or who will have his or her right to vote
unduly burdened by its requirements.’” Id. at 187 (plurality
opinion of Stevens, J.) (quoting Ind. Democratic Party v.
Rokita, 458 F. Supp. 2d 775, 783 (S.D. Ind. 2006)). It noted the
district court’s emphatic rejection of the plaintiffs’ expert re-
port, id., and stated that the record did not even contain the
number of registered voters in Indiana without voter identi-
fication, id. at 200. The Court found that “the deposition evi-
dence presented in the District Court does not provide any
concrete evidence of the burden imposed on voters who cur-
rently lack photo identification,” id. at 201, and stated that
“[t]he record says virtually nothing about the difficulties
faced by either indigent voters or voters with religious objec-
tions to being photographed,” id. The single affidavit of one
woman who was denied photo identification because she
did not have an address, said the Court, “gives no indication
of how common the problem is.” Id. at 202. And so it was no
surprise that the Court concluded that “the evidence in the
record is not sufficient to support a facial attack on the valid-
ity of the entire statute.” Id. at 189. The Court reiterated that
it was deciding the case based on the record before it at the
end of its analysis, too, stating, “In sum, on the basis of the
record that has been made in this litigation, we cannot con-
clude that the statute imposes ‘excessively burdensome re-
quirements’ on any one class of voters.” Id. at 202.
    The record that has been made in this litigation is entirely
different from that made in Crawford. In every way. The
plaintiffs put on detailed evidence of the substantial burdens
Wisconsin’s voter identification law imposes on numerous
voters. They put on multiple witnesses. They put on quali-
fied experts. They made this a record-heavy case. And after
hearing the voluminous evidence presented to the federal
12                                      Nos. 14-2058 & 14-2059

district court in Wisconsin, the experienced judge concluded
that Wisconsin’s voter identification law had a dispropor-
tionate impact on African Americans and Latinos, was un-
constitutional, and violated the Voting Rights Act. (Note also
that while the panel’s order called the Wisconsin and Indi-
ana laws “materially identical,” the Wisconsin law does not
have an affidavit option that allows indigent voters without
identification to vote provisionally as the Indiana law at is-
sue in Crawford did. Cf. Crawford, 553 U.S. at 185-86 (“The se-
verity of that burden is, of course, mitigated by the fact that,
if eligible, voters without photo identification may cast pro-
visional ballots that will ultimately be counted” if affidavit
executed at clerk’s office within ten days); see Ind. Code § 3-
11.75-5-2.5(c).) Crawford simply does not direct a victory to
the state in this case.
    Nor will the state be irreparably injured absent a stay.
The Supreme Court has said that irreparable harm to the
party seeking the stay is one of the two “most critical” fac-
tors in deciding whether to issue a stay, Nken, 556 U.S. at
434, yet it is very hard to see any irreparable harm to the
state. The state has conducted hundreds of elections without
a voter identification requirement. It had been preparing for
months to do the same again. (Indeed, the voter identifica-
tion law was designed to have a rollout period of 8 months
before a primary and 16 months before a general election—
not mere weeks.) The state has not pointed to a single in-
stance of an in-person impersonation at the polling place in
any of these elections. Waiting until the 2016 election for the
state to implement whatever law is in place on the merits
will give it plenty of time to properly implement that law.
Nos. 14-2058 & 14-2059                                                  13

     Moreover, that stays were issued in same-sex marriage
cases means nothing for this eve-of-election case. The uncer-
tainty, confusion, and long-term harm that would result
from allowing thousands of marriages that are valid for a
time but might later be wiped away led to stays in those cas-
es. 1 (And of course there is no presumption against enjoin-
ing unconstitutional state laws pending appeals, lest the
panel opinion leave a contrary impression.) The scale balanc-
ing the harms here, on the other hand, is firmly weighted
down by the harm to the plaintiffs. Should Wisconsin citi-
zens not have their votes heard, the harm done is irreversi-
ble. And as the district court found, for many voters without
qualifying identification, the burdens associated with obtain-
ing such identification “will be anything but minor” and will
deter a substantial number of eligible voters from voting. On
the other side of the scale is the state’s interest in guarding
against a problem it does not have and has never had. The
state can wait one more election to implement its law if it is
found to be constitutional.
    Our court should not accept, as the state is willing to do,
the disenfranchisement of up to 10% of Wisconsin’s regis-
tered voters. We certainly should not do so when there is no
evidence in Wisconsin whatsoever of the type of fraud the

    1  Take Utah’s experience, for example, where the Tenth Circuit did
not initially issue a stay. Over 1,000 same-sex couples obtained marriage
licenses after the district court enjoined the state’s law. Jessica Miller,
10th Circuit Court: Utah’s Same-Sex Marriage Ban Is Unconstitutional, June
26, 2014, available at http://www.sltrib.com/sltrib/news/58114139-
78/marriage-court-utah-sex.html.csp. The Supreme Court stayed the dis-
trict court’s injunction, the law against same-sex marriage went back into
effect, and now those couples are in limbo as to the validity of their mar-
riage licenses. See Herbert v. Evans, No. 14A65 (S. Ct. July 18, 2014).
14                                    Nos. 14-2058 & 14-2059

law is designed to prevent against. Our court should not
have altered the status quo in Wisconsin so soon before its
elections. The district court’s injunction against the imple-
mentation of the Wisconsin law should remain in place, and
the panel’s order lifting that injunction should be revoked.
