Cook County Record

Sunday, August 25, 2019

Election Day voter registration cleared for IL this November; judges refuse to rush appeal

By Jonathan Bilyk | Oct 7, 2016

Election Day voter registration will be allowed this November at all polling places in Cook County and Illinois’ other more populated counties, after a federal appeals court refused to speed up proceedings in the case, pushing briefing in the matter back to Nov. 10, two days after Election Day.

On Friday, Oct. 7, the U.S. Seventh Circuit Court of Appeals issued an order denying the request to expedite appeals by Illinois Attorney General Lisa Madigan and Cook County Clerk David Orr of a federal judge’s decision to block Illinois’ Election Day voter registration program on the grounds that the program effectively disenfranchises voters in Illinois’ less populated, mostly rural counties by granting “enhanced” voting rights to people who live in counties with more people.

On Tuesday, Oct. 4, the Seventh Circuit had slapped a stay on the enforcement of the injunction issued by U.S. District Judge Samuel Der-Yeghiayan, which had blocked all election authorities throughout the state from registering voters on Election Day at precinct polling places.

The ruling had centered on an Illinois law enacted by the Democratic-controlled Illinois General Assembly and signed by outgoing Gov. Pat Quinn in the weeks after he was defeated by current Gov. Bruce Rauner, a Republican. The law allowed the establishment of Election Day voter registration in Illinois, but restricted such a program only to counties with more than 100,000 people or counties with so-called electronic polling books. Clerks’ offices in counties with fewer than 100,000 people tend not to have such electronic polling book systems in place, citing cost.

The law was challenged this summer in a lawsuit brought by plaintiffs Patrick Harlan, a Republican congressional candidate in Illinois’ 17th Congressional District, in the state’s northwest corner, and the Crawford County Republican Party, who argued the law infringed the rights to equal protection of voters living in those more sparsely populated counties, effectively diluting the votes of residents of those counties, while granting easier access to the ballot for voters in Cook County and other counties with more residents.

They argued it unfairly tilts the electoral playing field to Democrats, who tend to draw much greater support from voters in urban areas.

In late September, Der-Yeghiayan had ruled in favor of the plaintiffs, agreeing the law favored voters in Chicago and other large cities.

“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.

On appeal, however, Madigan and Orr argued the law imposes only a “minimal inconvenience” on rural voters, who can still register on Election Day at their county clerks’ offices, even though it may require a relatively long drive to get there.

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.

Madigan and Orr argued the appeals judges needed to lift the stay, or risk actually disenfranchising many thousands of voters in Cook County and elsewhere who were counting on being able to register and vote using the Election Day registration system.

Madigan also argued voters in rural counties have no guarantees of equal protection compared to their more urban counterparts, as the law doesn’t recognize location of residence as a basis for such protective measures.

The appellate judges ordered both sides to submit arguments on the question of whether to expedite the appeal.

In their brief, Harlan’s attorneys with the Liberty Justice Center argued the appeal needed to be sped up, because otherwise, the “appeal will become moot after the November 8 election – and the stay of the district court’s order … will amount to a reversal of the district court’s order, even though the parties did not have the opportunity to fully brief and argue the issues.”

Madigan responded by arguing the stay needed to stay in place “to ensure that preparations for this year’s general election in Illinois are not thrown into turmoil.”

She also argued the appeal would not be moot, as any decision by the appeals judges would still apply to future elections. And she noted the plaintiffs waited until Aug. 9 to request an injunction.

The Seventh Circuit judges did not offer comment on the arguments in their order denying the expedited appeal.

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Illinois Attorney General Illinois General Assembly Liberty Justice Center