On Thursday, the United States Supreme Court barred the State of Wisconsin from enforcing its photo ID voter law. The law was passed more than three years ago by the Wisconsin state legislature, but legal challenges have prevented it from being enforced except for one state primary election in 2012. Earlier this year, a federal judge concluded that the ID requirement would deter voting by a substantial number of the 300,000-plus registered voters who lack a proper ID. That ruling was overturned by a panel of three judges of the Seventh Circuit Court of Appeals, clearing the way for its use in the November election until the Supreme Court acted.
Before going on, let’s stop for a minute and absorb the fact that more than 300,000 Wisconsinites–about 9 percent of registered voters in the state–currently lack the required identification to comply with the law. This isn’t a trivial number. The supporters of photo ID laws would have you believe that virtually everyone has such ID because it’s basically impossible to do anything in American society without one. Well, that’s factually false, as the evidence in this case showed.
In any event, before the case went to the Supreme Court, Judge Richard Posner of the Seventh Circuit asked for a vote of his fellow judges to rehear the case en blanc, but the ten members of the Seventh Circuit deadlocked in a 5-5 tie, thus letting the panel’s ruling stand. On Friday, Posner published a blistering opinion denouncing Wisconsin’s photo ID law and the panel’s decision, calling allegations of voter impersonation fraud “a mere fig leaf for efforts to disenfranchise voters likely to vote for the political party that does not control the state government.” Judge Posner’s opinion is a thorough beat down of the photo disenfranchise movement, and I encourage you to read in its entirety. (It’s not that long.)
Judge Posner’s opinion is especially fascinating consider his background. He was appointed to the Seventh Circuit in 1981 by Ronald Reagan. He’s regarded as conservative in his views, though as Wikipedia notes, “in recent years he has distanced himself from the positions of the Republican party.” Perhaps this is because in recent years the Republican party has veered further to the right as it has become beholden to it’s more extreme elements, but that’s just supposition on my part; you’d have to ask Judge Posner about it. In any event, as Wikipedia points out, Judge Posner was identified by The Journal of Legal Studies as the most cited legal scholar of the twentieth century. Without question, he’s an influential and conservative judge.
In 2007, Judge Posner wrote the Seventh Circuit’s opinion upholding the State of Indiana’s recently enacted photo ID law in Crawford v. Marion County Election Board. Indiana’s was the first of the post-Obama wave of photo ID laws enacted by Republican-controlled states. After the Seventh Circuit’s ruling, the case went to the Supreme Court, which also upheld the law as constitutional. Now here we are in 2014, and Posner has written a scathing rebuke of Wisconson’s voter ID law, as well as the greater move to restrict voting rights. What caused him to, by all appearances, change his mind? The details are in his opinion.
To start with, Judge Posner addresses differences between the Indiana and Wisconsin cases, noting that the latter “involves a different statute and has a different record and arises against a background of a changed political culture in the United States.” The cases are “importantly dissimilar, not only in their terms but in the evidentiary records of the two cases.” In Indiana’s case, for example, no evidence was presented of in-person voter fraud, but neither was evidence presented that the law was likely to disenfranchise “more than a handful of voters.” In contrast, eight persons testified in the Wisconsin case that they wanted to vote in the November 4 election but were unable to obtain the required identification.
Judge Posner addresses the difference in scale of affected registered voters. In Indiana, it was estimated that one percent of the voting population lacked the required identification, whereas in Wisconsin that number is nine percent. Further, the Wisconsin law is much more restrictive than Indiana’s and provides little leeway with respect to identification. Evidence showed that many of those affected also lacked the documents needed to obtain a photo ID (e.g., a birth certificate). In addition, evidence showed that a “substantial number of the 300,000 plus eligible voters who lack a photo ID are low-income individuals… who have encountered obstacles that have prevented or deterred them from obtaining a photo ID.” And for good measure, he debunks the panel’s assertion that a photo ID is required to fly (it isn’t), as well as in other circumstances that the panel claimed required a photo ID, but actually don’t.
Judge Posner notes that “[t]here is no evidence that Wisconsin’s voter rolls are inflated, as were Indiana’s—and there is compelling evidence that voter impersonation fraud is essentially nonexistent in Wisconsin. ‘The [state] could not point to a single instance of known voter impersonation occurring in Wisconsin at any time in the recent past.’ There are more than 660,000 eligible voters in Milwaukee County. According to the state’s own evidence, in only one or two instances per major election in which a voter in Milwaukee County is turned away from the polls because a poll worker tells him he’s voted already is there even a suspicion— unconfirmed—of fraud. An expert witness who studied Wisconsin elections that took place in 2004, 2008, 2010, and 2012 found zero cases of in-person voter-impersonation fraud.”
Voter-impersonation fraud “is by all accounts a tiny subset, a tiny problem, and a mere fig leaf for efforts to disenfranchise voters likely to vote for the political party that does not control the state government. Those of us who live in Illinois are familiar with a variety of voting frauds, and no one would deny the propriety of the law’s trying to stamp out such frauds. The one form of voter fraud known to be too rare to justify limiting voters ability to vote by requiring them to present a photo ID at the polling place is in-person voter impersonation.” “Some of the ‘evidence’ of voter-impersonation fraud is downright goofy, if not paranoid, such as the nonexistent buses that according to the “True the Vote” movement transport foreigners and reservation Indians to polling places.”
He then tackles the question of whether the Indiana case sets a precedent that must guide future voter ID cases.
The [Seventh Circuit] panel is not troubled by the absence of evidence. It deems the supposed beneficial effect of photo ID requirements on public confidence in the electoral system “‘a legislative fact’-a proposition about the state of the world,” and asserts that “on matters of legislative fact, courts accept the findings of legislatures and judges of the lower courts must accept findings by the Supreme Court.” In so saying, the panel conjures up a fact-free cocoon in which to lodge the federal judiciary. As there is no evidence that voter impersonation fraud is a problem, how can the fact that a legislature says it’s a problem turn it into one? If the Wisconsin legislature says witches are a problem, shall Wisconsin courts be permitted to conduct witch trials? If the Supreme Court once thought that requiring photo identification increases public confidence in elections, and experience and academic study since shows that the Court was mistaken, do we do a favor to the Court—do we increase public confidence in elections—by making the mistake a premise of our decision? Pressed to its logical extreme the panel’s interpretation of and deference to legislative facts would require upholding a photo ID voter law even if it were uncontested that the law eliminated no fraud but did depress turnout significantly.
If the Wisconsin legislature says witches are a problem, shall Wisconsin courts be permitted to conduct witch trials? Ya gotta love it. The scary thing, of course, is that some conservatives actually do think witches are a problem. But I digress.
Finally, Judge Posner gets to the true underlying motives of the post-Obama voter disenfranchisement movement. “Judge Evans, dissenting from our decision in Crawford, called the Indiana law ‘a not too thinly veiled attempt to discourage election day turnout by certain folks believed to skew Democratic.’ But he cited no evidence to support his conjecture–a conjecture that now seems prescient, however.”
And now, six years later? “There is only one motivation for imposing burdens on voting that are ostensibly designed to discourage voter-impersonation fraud, if there is no actual danger of such fraud, and that is to discourage voting by persons likely to vote against the party responsible for imposing the burdens.”