The plaintiffs in Wisconsin’s Voter ID case yesterday filed an emergency application with Justice Kagan, the Circuit Justice assigned to the Seventh Circuit, seeking an order vacating the Seventh Circuit’s September 12 stay of Judge Adelman’s injunction against enforcement of the law, 2011 Wis. Act 23. Justice Kagan has called for a response from the state by next Tuesday.
We have written several times already about the argument in the Seventh Circuit on the merits; that court’s stay of the injunction the same day (here); and the plaintiffs’ ultimately unsuccessful effort (for failure to get a sixth vote among the court’s ten active judges) to have the full court hear their motion for reconsideration of the stay (here). The plaintiffs have now turned to the last place from which they can hope for relief, to prevent the Voter ID law from taking effect for the November elections.
The application for stay, like the plaintiffs’ motion for en banc hearing in the Seventh Circuit, makes a strong case as to two of the traditional criteria for a stay—likelihood of success and irreparable harm. Other commentators, focusing on these elements, have gone so far as to predict success for the application before Justice Kagan or the full Court, to which she is likely to refer it.
We’re not in the prediction business, but we note the weakness of the application’s showing on what is always a key factor in obtaining emergency relief from a Circuit Justice or the entire Supreme Court while the case is still pending in the lower court (recall that the Seventh Circuit panel has not yet issued a decision on the merits of the case). In asking a Circuit Justice to vacate a stay entered before the court of appeals’ decision, it is necessary to show that the “case could and very likely would be reviewed [in the Supreme Court] upon final disposition in the court of appeals.” Coleman v. Paccar Inc., 424 U.S. 1301 (1976) (Rehnquist, J. in chambers).