Mandated Bar to Decide New Issues? In Frank v. Walker, the Seventh Circuit Explores When a District Court is Precluded from Hearing New Arguments on Remand

August 09, 2016 6:25 PM | Anonymous member (Administrator)

By Louis J. Manetti

Attorney, Codilis and Associates, PC

To what extent are litigants allowed to raise new issues on remand from an appeal? The Seventh Circuit recently offered some insight into the scope of a district court’s authority to decide issues on remand in Frank v. Walker, 819 F. 3d 384 (7th Cir. 2016).

The case began in the district court of Wisconsin when consolidated plaintiffs argued that Act 23—a Wisconsin law passed in 2011 that required residents to present photo identification in order to vote—violated the Fourteenth Amendment and Section 2 of the Voting Rights Act. Frank v. Walker, 17 F. Supp. 3d 837, 842 (E.D. Wis. 2014). 

Prophetically, the Court acknowledged that, “by not addressing all constitutional claims, I am leaving the door open to successive appeals.” Id. at 843. The district court reasoned that Act 23 would be invalid if it imposed burdens on a subgroup of Wisconsin’s voting population that were not outweighed by the state’s justifications for the law. Id. at 847. It held that Act 23 unjustifiably burdened a subgroup—low-income eligible voters. Id. at 862. The district court held that invalidating Act 23 was the only practical way to remove the unjustified burdens on low-income voters (id. at 863), and it permanently enjoined the state’s officers and agents from conditioning access to a ballot on presenting photo identification. Id. at 880. 

On appeal, the Seventh Circuit determined that the district court’s holding ran contrary to United States Supreme Court precedent. Frank v. Walker, 768 F. 3d 744, 745-46 (7th Cir. 2014). As a result, it declared that Act 23 was constitutional and reversed the district court’s judgment. Id. at 755.

On remand in the district court, the plaintiffs tried a different tack: They sought relief for voters “who lack photo ID and face systemic practical barriers to obtaining an ID.” Frank v. Walker, 141 F. Supp. 3d 932, 935 (E.D. Wis. 2015). The plaintiffs identified this class as voters: (1) having to deal with name mismatches or other errors in an underlying document needed to obtain an ID; (2) having to obtain an underlying document from an agency other than the Wisconsin Department of Motor Vehicles; and (3) needing an underlying document that does not exist. Id. n.1. The district court held that it could not grant relief to those voters because theirs was “not a claim I left unresolved in my prior decision. It is the constitutional claim on which I granted relief: I found that Act 23 imposed unjustified burdens on voters who currently lack photo ID and will face heightened barriers to obtaining ID.” Id. It reasoned that the Seventh Circuit “did not, for example, vacate the injunction and remand with instructions to consider granting some other remedy,” and concluded, “I am not free to disregard this holding on remand.” Id. The order prompted another appeal to the Seventh Circuit. 

In the second appeal, the Seventh Circuit was faced with the issue of whether its prior decision precluded the district court from granting relief to the three groups of voters identified on remand. It referred to the groups collectively as those who were unable “to obtain a qualifying photo ID with reasonable effort.” Frank, 819 F.3d at 386. [1] The Court instructed, “[t]he scope of an appellate mandate depends on what the court decided—and we did not decide that persons unable to get a photo ID with reasonable effort lack a serious grievance.” Id. Instead, the district court originally determined that “because some voters face undue difficulties in obtaining acceptable photo IDs, Wisconsin could not require any voter to present a photo ID.” (Emphasis in original.) Id. 

This broad holding included people “who could get a state-issued photo ID but disliked the hassle.” Id. The district court could resolve the claims brought by the unable-despite-reasonable-effort voters because “[t]he argument plaintiffs now present is different.” Id. That is, instead of arguing that the burden on a subgroup means that nobody should be forced to present a photo ID, the plaintiffs were arguing that high hurdles for some eligible voters entitled those particular persons to relief from Act 23. Id. The Court determined that this new argument was compatible with its prior opinion and mandate. Id. at 386-87. It rejected the state’s claim that the plaintiffs needed to raise the new argument in the prior appeal as an alternative reason to affirm the injunction for two reasons. First, the injunction prohibited the requirement of any voter to present a photo ID, so an alternative argument about the unable-despite-reasonable-effort voters would not have supported the much broader injunction. Id. at 387. Second, an alternative argument in support of a district court’s judgment is a privilege, not an obligation. Id. As a result, the Seventh Circuit reversed the district court’s judgment and remanded for further proceedings on the new argument. Id. at 388.
[1] The court identified a “gastonette” in the second category of voters (those needing a credential from another agency that would not issue the credential without a photo ID). For an entertaining recount of the word’s etymology, see Jon O. Newman, Birth of Word, 13 Green Bag 2d 169 (2010) (available at (last accessed August 3, 2016)).

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