7th Circuit reinstates Wisconsin voter ID law.

The Milwaukee Journal Sentinel reports.

After blogging this morning about the impending oral argument — here — I listened to it — here — all the way to the end where the state asks the court to reinstate the law today, and I look and see that, in fact, has already happened.

The MJS reports that the court issued an order allowing Wisconsin to enforce the law for the upcoming elections. The court noted the way the Wisconsin Supreme Court's decision "reduces the likelihood of irreparable injury, and...  changes the balance of equities and thus the propriety of federal injunctive relief, and... the state's probability of success on the merits."

The judges on the panel were former Wisconsin Supreme Court Justice Diane Sykes along with Frank Easterbrook and John Tinder. At the oral argument today, they were quite skeptical of the power of the district judge to reject the importance of preventing in-person voter fraud.

In the 2008 case upholding the Indiana voter ID law, Crawford, the U.S. Supreme Court had accepted that the state had an important interest in preventing fraud and in promoting public confidence. In the current case, the district judge, Lynn Adelman, held a trial and listened to an expert witness who opined that it's unlikely that anyone would engage in this kind of fraud. Those who are challenging the Wisconsin law want the appeals court to defer to his factfinding, but Sykes and Easterbrook resisted the notion that hearing opinion witnesses could enable a trial judge to supersede the opinion of the U.S. Supreme Court.

Go to 43:15 in the audio for this discussion. Sykes says she's not sure that Adelman's findings were "classic factual findings," and Judge Easterbrook then says:

"Judge Sykes just asked a question that bugged me, and maybe we should discuss it more completely, but some of what's going on here seems to be: The Supreme Court said particular things in Crawford. The district judge then holds a trial and says: I find this a fact: that the Supreme Court of the United States is wrong and I enjoin this statute. Is that a proper relation between the Supreme Court and what the Constitution calls 'the inferior courts'?"

The lawyer tried to say the district judge wasn't calling the Supreme Court wrong in finding a state interest, but was finding as a fact that the state has no interest, but that's exactly what was bugging Judge Easterbrook. He said:

"Right: The district judge takes testimony from people who disagree with the Supreme Court and says: I credit their testimony, and I therefore find that there isn't an important interest in deterring fraud and public confidence isn't something we should worry about and so on...."

The panel is not inclined to defer to Judge Adelman just because he held a trial and found facts. These are not "classic factual findings," and Crawford will dictate the outcome, I predict.