Kevin Schofield's writings, observations, and other pointless distractions
Fresh off his recent brilliant decimation of bans against marriage for same-sex couples, last week Judge Posner served up some fresh vitriol against the recent strain of Republican-backed “voter ID” laws.
A short case history: Wisconsin passed one of the most restrictive voter ID laws in the nation. A district court judge found it unconstitutional. Wisconsin appealed to the Seventh Circuit Court of Appeals, where a 3-judge panel sided with the state and overturned the district court ruling. The plaintiffs requested an “en banc” rehearing, which would require the entire Fifth Circuit, all ten judges, to review and rule on it. But in order to grant an en banc rehearing, six of the ten judges must vote for it. Unfortunately, it was a 5-5 split, so it won’t happen (though the plaintiffs can still appeal to the Supreme Court). In the meantime, Judge Posner was one of the five judges who voted for en banc review, and since he didn’t get his way, he wrote a dissenting opinion that was joined by the other four judges who voted with him.
Posner is a conservative judge, appointed to the circuit court by President Reagan. And ironically, he was one of the judges who ruled in support of a voter ID law in a key 2007 case, Crawford vs Marion County Election Board, that the Supreme Court affirmed, thus establishing it as the “controlling” case law on voter ID.
In his dissent, Posner makes clear that this case is different from Crawford in important ways, and thus worth a separate look. But that’s just the warm-up act. He really gets fired up when he points out that in 2007 while there was no clear evidence that voter fraud was a problem, there was also no evidence that voter ID laws would create an undue burden on certain classes of voters — because in 2007 voter ID laws were new. There was no data at all.
Now, seven years later, there is clear and convincing evidence that voter ID laws create an undue burden on low-income and minority voters, and on elderly voters. Judge Posner spells out how that happens in glorious detail, including in an appendix a letter from a state agency explaining what someone without a birth certificate would be required to do in order to gain such a proof of US birth so as to get a drivers’ license.
There is also clear and convincing evidence that voter fraud of the kind that voter ID laws are designed to prevent is practically nonexistent.
He then points out that it’s no accident that the party pushing for these laws happens to be the opposing party to the people being disenfranchised.
Posner’s opinions are wonderful to read because he writes in plain English, and because he speaks very bluntly. He is not at all afraid to say exactly what is going on, in direct terms.
I encourage you to read his dissent for yourself. You’ll enjoy it.