What do cases involving challenges to same-sex-marriage and voter ID laws have in common?

The answer, according to a per curiam opinion issued today by a panel of judges from the U.S. Court of Appeals for the Seventh Circuit in Frank v. Walker, Nos. 14-2058 & 14-2059 (7th Cir. Sept. 30, 2014), is that both involve “laws enacted through the democratic process” that should “remain in force pending final decision by the Supreme Court.”

It’s a lesson worth remembering in appellate practice. This issue arose as a result of the plaintiffs’ “Emergency Petition for Rehearing and Suggestion for Rehearing En Banc,” filed in the challenge to Wisconsin’s voter ID law, after the Seventh Circuit stayed an injunction that previously had barred the state’s enforcement of the law. The court issued that stay on the same day that it heard oral argument, a lesson in itself on the availability of interim relief that we wrote about here. The court denied the request for rehearing en banc by a 5-5 vote last week and issued two opinions—a per curiam opinion concerning the reasons for denying the request and a dissent written by Judge Williams—this afternoon.

The per curiam opinion explained that it was entirely proper to stay the district court’s injunction. Wisconsin’s voter ID law was not only likely valid (given its similarity to Indiana’s voter ID law, which survived a challenge at the Supreme Court), but “[a] second important consideration is the public interest in using laws enacted through the democratic process, until the laws’ validity has been finally determined.” The panel went on to explain that “[t]his is the view the Supreme Court has taken in the same-sex-marriage cases now before it. Even after federal courts held some states’ laws invalid, the Court issued stays so that the laws remain in effect pending final resolution.... Our panel concluded that Wisconsin’s photo ID law should be handled in the same way.”

Judge Williams wrote for the five judges who voted to rehear the case en banc.

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