Changing Voting Rules After Ballots Are Cast


Edward B. Foley

- Moritz College of Law
Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law; Director, Election Law @ Moritz
Posted on October 2, 2014, 11:41 am

                Wisconsin’s voter ID litigation is now in the U.S. Supreme Court, on an emergency application to vacate a stay granted by the Seventh Circuit.  The application presents powerful arguments on the “equities” of the current Wisconsin situation, as did the five-judge dissent in the Seventh Circuit (one short of the number necessary to overturn the circuit panel’s ruling).  It is worth noting also that the five dissenters were a bipartisan group in terms of their appointments to the bench.  Judge Rovner, one of the dissenters was appointed by President George H.W. Bush, and Judge Posner, another dissenter, appointed by President Reagan; the other three dissenters were appointed by Democrats.

                The main “equity” present in the Wisconsin case, which was absent in the recent Ohio case—where the Supreme Court itself stayed a preliminary injunction that barred a state’s enforcement of voting rules—is the serious risk of actual disenfranchisement.  Wisconsin voters who lack the required ID quite likely will be unable to obtain one before Election Day, and prior to the Seventh Circuit’s stay had been told by the state’s election officials that they would not need one for the upcoming November election.  The evidence indicates that Wisconsin’s administrative infrastructure lacks the capacity in just one month to provide the necessary ID for all the registered voters without one.  Those facts present a strong reason not to reinstate the previously blocked ID requirement at this point.    Why the Seventh Circuit waited until September to stay an injunction entered in April is not adequately explained or justified and, in my judgment, affects the balance of the equities in the case.

                By contrast, in Ohio, for reasons I’ve discussed previously, eligible voters did not face a serious risk of actual disenfranchisement as a result of that state’s legislative changes in its voting rules.  True, Ohio voters faced more inconvenience as a result of those changes (fewer days and hours for early voting, as well as the loss of the so-called “Golden Week,” when it was possible to register and vote at the same time).  But not the kind of outright disenfranchisement that Wisconsin voters without the required ID face.  (Rick Hasen also makes this point.)  The court-ordered September alteration of voting procedures in Ohio was not warranted by the balance of relevant considerations.  Thus, the same “equitable” considerations that called for letting Ohio implement its new rules without judicial interference in September calls for keeping in place the April injunction applicable to Wisconsin without September unsettling by the Seventh Circuit. 

                There is one more crucial point about the Wisconsin case that has not yet been fully developed.  As a factual matter, the emergency stay application observes that absentee ballots have been already been cast based on a rule in place (per the April injunction) that the new voter ID requirement did not apply.  The Seventh Circuit’s reinstatement of the ID requirement now makes those absentee ballots void and uncountable unless the voters come forth with the required ID—a requirement not in effect at the time when they cast those ballots.  Indeed, the instructions that these absentee voters received with their ballot did not alert them to the need to provide the required ID.  The stay application says that to disenfranchise these absentee voters “after the fact” based on a change in the rules since they cast those ballots would be “unconscionable” (page 14)—unconscionability being a potent “equitable” factor. 

                But it would be more than unconscionable.  It would be unconstitutional.  The Due Process Clause of the Fourteenth Amendment has been properly interpreted to bar changes in the rules for counting ballots after they have been cast.  The leading case, from the First Circuit, is Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978).  It, too, involved absentee ballots.  Rhode Island election officials had made absentee ballots available to voters.  After the ballots had been cast, the state supreme court ruled that these voters should not have received those ballots.  (It was a primary election, and the state court said absentee ballots were available only in general elections.) Too late, said the First Circuit.  It violates Due Process to give voters ballots telling them they will count if cast and then, after they are cast, say “surprise” they won’t count after all. 

                This principle, which has been applied in subsequent cases—see, for example, Roe v. Alabama, 43 F.3d 574 (11th Cir. 1995)—seems directly applicable to the current Wisconsin situation.  The affected Wisconsin absentee voters cast their ballots with one set of rules in force at the time.    These voters had a reasonable expectation that their ballots would count as cast if they complied with those rules then in force.  To change the rules for counting ballots after they have been cast seems to be one of the most dangerous practices in the administration of an electoral democracy—which is precisely why such a rule-change has been held to violate Due Process. 

                I did not see a citation to these Due Process precedents in the Wisconsin emergency stay application, or an explicit reference to Due Process or the Constitution.  Only to the idea of unconscionability.  But an even stronger reason to vacate the stay granted by the Seventh Circuit is that this stay, given the specific facts applicable to the absentee voters, would itself violate the Due Process principle articulated in Griffin v. Burns and similar cases.


Edward B. Foley is Director of the Election Law at Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law at Moritz. View Complete Profile

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