In a rational world, the debate over voter ID laws would be ended by the eloquent, incisive and angry opinion issued late last week by U.S. Circuit Judge Richard A. Posner of Chicago in a case concerning Wisconsin.
But this isn’t a rational world. So not only will the debate continue, but Posner’s opinion failed even to sway his fellow judges on the 7th Circuit Court of Appeals. The court split 5-5 on Posner’s request for an en banc -- that is, full court -- rehearing of the Wisconsin case, in which a three-judge panel already had cleared the state’s ID law to go into effect for next month’s election. That meant Posner’s request was turned down and his opinion was in the nature of a dissent.
As it happens, the Supreme Court has stepped in and suspended the Wisconsin law, probably invalidating it for the upcoming polls. But Posner’s 30-page dissent, laid out in his typical lucid and direct manner, is as exacting an examination as you’re likely to find of why voter ID laws are corrupt and iniquitous, and why their usual rationale -- to combat voter fraud -- is a lie.
Before walking through Posner’s opinion, a few words about why he’s important. Posner, 75, is no wooly-headed liberal, but a card-carrying conservative who was appointed to the circuit bench by Ronald Reagan in 1981. He’s widely regarded as the smartest jurist in the federal judiciary, and was identified in 2000 by Fred Shapiro of Yale Law School as the most-cited legal scholar of all time. (Shapiro’s full list is here.)
While still unquestionably conservative, Posner has been moving away from Republican orthodoxy on many issues, or perhaps it’s more accurate to say that today’s Republicans and conservatives have moved away from his principles. You can get a taste of that from his opinion last month overturning gay-marriage bans in Indiana and Wisconsin, finding that their grounds for such discrimination “are not only conjectural; they are totally implausible.” For a taste of how Posner treats ill-prepared lawyers in court, listen to these clips from the oral arguments in that gay-marriage case, and thank your lucky stars you weren’t the attorneys tasked with defending the bans.
Posner’s dissent in the Wisconsin voter ID case is especially telling, because he wrote the so-called Crawford decision in 2007 upholding Indiana’s voter ID law, in which he was upheld by the Supreme Court. But he has since recanted. In a 2013 book, he accepted the view that such laws are properly regarded as “a means of voter suppression rather than fraud prevention.” That’s the view that informs his latest opinion.
“There is only one motivation for imposing burdens on voting that are ostensibly designed to discourage voter-impersonation fraud,” he writes, “and that is to discourage voting by persons likely to vote against the party responsible for imposing the burdens.” More specifically, he observes, photo ID laws are “highly correlated with a state’s having a Republican governor and Republican control of the legislature and appear to be aimed at limiting voting by minorities, particularly blacks.” In Wisconsin, according to evidence presented at trial, the voter ID law would disenfranchise 300,000 residents, or 9% of registered voters.
Posner systematically demolishes every argument mustered in support of voter ID laws. Combating voter fraud? “There is compelling evidence that voter-impersonation fraud is essentially nonexistent in Wisconsin.” Assertions about voter fraud are “a mere fig leaf for efforts to disenfranchise voters.” He adds that “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 [a voter suppression organization originating in the tea party movement] transport foreigners and reservation Indians to polling places.”
Indeed, Posner writes, lists of the states that impose the strictest requirements “imply that a number of conservative states try to make it difficult for people who are outside the mainstream, whether because of poverty or race or problems with the English language...to vote.”
How about the argument that photo ID is required to board a plane and for many other routine actions, so what’s the harm in requiring it for voting? Posner points out that the requirement of photo ID for flying is “a common misconception.” Nor is it true, as the three-judge appeals panel had it, that photo ID is required to pick up a prescription (not so in Wisconsin and 34 other states, Posner observes); open a bank account (not true anywhere in the country) or buy a gun (not true under federal law at gun shows, flea markets, or online).
Then there’s the argument that getting a photo ID is easy and cheap, and therefore that people without them must not care enough about voting to bother. The three-judge panel wrote that obtaining a photo ID merely requires people “to scrounge up a birth certificate and stand in line at the office that issues driver’s licenses.” Posner replies that he himself “has never seen his birth certificate and does not know how he would go about ‘scrounging’ it up.” Posner appends a sheaf of documents handed to an applicant seeking a photo ID for whom no birth certificate could be found in state records. It ran to 12 pages.
As for its supposedly negligible cost, “that’s an easy assumption for federal judges to make, since we are given photo IDs by court security free of charge. And we have upper-middle-class salaries. Not everyone is so fortunate.” He cites a study placing the expense of obtaining documentation at $75 to $175 -- which even when adjusted for inflation is far higher than “the $1.50 poll tax outlawed by the 24th amendment in 1964.”
Posner places Wisconsin’s argument for its voter ID law within a “fact-free cocoon.” Last week, the state’s governor, Scott Walker, defended the law by asserting it’s worthwhile whether it stops “one, 100 or 1,000" illegal votes.” Leaving aside that the number of illegal votes for which there’s any evidence is zero, the very idea of disenfranchising 300,000 voters in the hope of stopping even 1,000 illegal votes is beyond fatuous, and well into the category of hopelessly cynical. Walker’s lawyers tried to make that case before Judge Posner. His written opinion shows what he thought of it.