7th Circuit appeals judges lift injunction blocking Illinois Election Day voter registration program

By Jonathan Bilyk | Oct 4, 2016

A federal appeals panel has granted requests from Illinois Attorney General Lisa Madigan and Cook County Clerk David Orr to lift a federal judge's injunction blocking the ability of election authorities in Cook and other Illinois counties with large populations to register voters at polling places on Election Day.

The order from judges Diane Wood, Kenneth Ripple and Ilana Diamond Rover of the U.S. Seventh Circuit Court of Appeals came just days after Madigan and Orr had requested the stay of the injunction.

Madigan argued the law establishing Illinois' Election Day voter registration program - which is available only to people living in Illinois' more heavily populated counties - was constitutional, and imposed only a “minimal inconvenience" on voters living in low population counties, particularly when compared to the benefits of expanding voting opportunities in counties with more people. 

Madigan filed her arguments on Sept. 30 in a brief to the Seventh Circuit, in which she asked the federal appellate judges to put a stay on an injunction put in place by U.S. District Court Judge Samuel Der-Yeghiayan, which had blocked all election authorities throughout the state from registering voters on Election Day at precinct polling places.

 “Plaintiffs have not provided any evidence showing that this arrangement imposes any burden, much less a severe one, on residents of low-population counties,” Madigan argued.

Rather, she said, the injunction imposed by Der-Yeghiayan would effectively disenfranchise potentially hundreds of thousands of voters in Cook County and other large population counties, which she noted repeatedly account for more than 83 percent of the state’s voting population.

Cook County Clerk David Orr, through Cook County State’s Attorney Anita Alvarez, joined Madigan on Oct. 3 in requesting the stay, also arguing the effect of Der-Yeghiayan’s injunction would be to harm voters in relatively large counties who have come to “rely” on the state’s Election Day voter registration process in just the two years since it was first implemented.

In late September, Der-Yeghiayan ruled in favor of plaintiffs Patrick Harlan, a Republican congressional candidate in Illinois’ 17th Congressional District, in the state’s northwest corner, and the Crawford County Republican Party, finding the law grants greater access to the ballot box for residents of Cook County and other Illinois counties with larger populations, effectively diluting the votes of residents of lower population counties who do not have Election Day registration available at precinct polling places. This effectively disenfranchises those voters, Der-Yeghiayan said, meaning the law and Election Day registration program violates those voters’ rights to equal protection under the law, as guaranteed by the U.S. Constitution.

“Illinois is made up of more than the Chicago metropolitan area and other high population areas,” Der-Yeghiayan said in his opinion. “Equality under the law does not end at the city limits. The Constitution guarantees equal voting rights to all United States citizens in Illinois, not simply those in counties that have the highest populations and have organizations such as those represented in the Amicus Briefs to stand up for their enhanced voting rights.”

However, Madigan argued in her appeals motion that Der-Yeghiayan had the issue exactly “backwards,” saying it is the judge’s injunction, not the legislation authorizing the Election Day registration program, which inhibits the voting rights of Illinois citizens.

She noted the legislation includes provisions requiring low-population counties to offer Election Day registration at a central location, such as a county clerk’s office. While Harlan and the other plaintiffs argued this placed an impermissible burden on those voters not placed on the residents of counties that happen to have more people, Madigan – citing a Seventh Circuit decision which upheld a Wisconsin state law requiring voters to show identification when casting ballots – said the additional trip to the county seat to register wouldn’t represent a problem for voters in those other counties.

Rather, she and Orr argued the injunction – put in place about six weeks before the November general election – would harm voters who were counting on being able to register and cast ballots at the same time at their local polling places.

Further, Madigan argued voters in counties with fewer than 100,000 people have no guarantees to equal protection, simply because of where they live.

“The statute under challenge here does not compel any variation between counties as to the availability of (Election Day registration),” Madigan wrote. “It does not prohibit low population counties from offering EDR at the polling place; it merely lets them decide whether to do so. If voters in such counties want in-precinct EDR, they can pressure their elected officials to provide the technology necessary to implement it.”

In response, Harlan’s attorneys at the Liberty Justice Center filed a brief largely restating their contentions that the state law would effectively discriminate against people in lower population counties, tilting the election toward candidates with more support in counties with larger populations.

In the 17th Congressional District, for instance, voters in 10 of the counties in the district would not be eligible for Election Day registration under Illinois’ existing law and EDR program.

The LJC brief also noted Illinois is the only state which allows precinct-level EDR, yet grants the right only to people living in certain counties.

“There is no constitutional right to have polling place EDR at all, but there is a constitutional right to vote on an equal basis with others in one’s jurisdiction,” wrote Jacob Huebert, the LJC lawyer representing Harlan. “Even if providing EDR at polling places is in general good public policy, it is not in the public interest – indeed, it is contrary to the public interest – if it is implemented in an unfair manner that does not comport with constitutional requirements because it favors some voters over others based on an arbitrary factor.”

The appellate judges did not provide any comment on the merits of the arguments or of  Der-Yeghiayan's decision.

They ordered both sides to next provide statements by Oct. 6 discussing the need to hurry the appeals process in the case. 

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Cook County Illinois Attorney General Liberty Justice Center U.S. Court of Appeals for the Seventh Circuit

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