Judge Posner Destroys Conservative Claims Again

Judge Richard Posner, a legendary libertarian judge on the 7th Circuit Court of Appeals, has once again destroyed the arguments of Republicans and conservatives, this time on voter fraud and photo ID laws. He asked for an en banc rehearing on the Wisconsin photo ID law and a 5-5 vote denied that rehearing, but he wrote a blistering dissent from that vote (the Supreme Court later put the law on hold for the upcoming election).

What’s really interesting about this case is that the appeals court panel in the case upheld the law on the basis of a 2008 case called Crawford v. Marion County Election Board, which upheld a similar law in Indiana. The appeals court ruling in that case was authored by Justice Posner himself, but he has since changed his mind.

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, who was appointed by Ronald Reagan and is widely considered the smartest man on the federal bench (as well as the single most cited legal scholar in American history) is rapidly becoming a real thorn in the side of the GOP. You can read his full opinion here.

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  • eric

    On one hand, it really does show how out of whack our politics have gotten, when voter suppression is practically the mainstream position of one of our two main political parties. OTOH, I suspect such measures have always been part of our politics, going back 200+ years. The difference between today and yesteryear seems to be the Orwellian doublespeak associated with today’s measures. In past generations, politicians just explicitly acknowledged they were doing it (i.e. poll tax). Today, you get these idiotic pronouncements about the cataclysmic problem of voter fraud in states where the rate of fraud is lower than, what, 0.01%?

  • http://www.gregory-gadow.net Gregory in Seattle

    Nothing could be a bigger thorn in the Republican backside than someone who both knows the law and is driven to uphold it.

  • D. C. Sessions

    In past generations, politicians just explicitly acknowledged they were doing it (i.e. poll tax).

    The big difference was that then the voter suppression was complete enough that the only people who didn’t like it also couldn’t vote.

    Now, if they’re seriously upfront about it there are people (like judges) who for one reason or another can’t afford to endorse it openly. They need some cover — thus, the transparent pretexts. They may be filmy veils, but it’s enough to avoid total legal nudity.

  • raven

    I read parts of Posner’s dissent last night. He made a lot of good points.

    1. All the voter suppression laws and there are dozens, were passed by Republican states. Posner actually had a table of them.

    This says that Voter Suppression is a political move, targeting Democrats.

    2. It’s highly anti-democracy and highly anti-American values. If you have to cheat and lie and keep groups from voting to win elections, that isn’t democracy.

    3. The GOP doesn’t want a democracy. They don’t want elections. They simply want power and will get it any way they can.

    In Kansas, Brownback lowed taxes on the ultra-rich, raised them on the average people, beat up their education system, and now they are running a $240 million deficit. Scott Walker did something similar in Wisconsin.

    And they don’t care. The rich make more money and that was the goal and all that matters. It’s the oligarchy, the New Feudalism.

  • gopiballava

    I was looking in to what it would take to get a copy of my birth certificate from Boston. The form says that ID is required: “A photocopy of your Identification (Driver’s License, State ID, Passport).”

    The documentation is a bit unclear as to whether ID is only required for people born out of wedlock, but obviously requiring photo ID to get a birth certificate so you can get photo ID is a bit of a problem.

  • Reginald Selkirk

    Posner, who was appointed by Ronald Reagan

    How the bleep did that happen? Was Old Dutch having one of his ‘Bitburg’ moments?

  • http://drx.typepad.com Dr X

    No small number of public chatterers who support these laws have also proposed that voting be limited to property owners because they’re supposedly the only ones with “skin in the game.” Of course, that’s absurd because everyone who is subject to the law has sink in the game. But their narrow notion of skin in the game further reveals how warped by privilege these people are.

  • raven

    Highly Respected Conservative Judge Rips “Voter ID” Laws–and the GOP–in Blistering Opinion by Dartagnan

    “Posner shows that all of the states that have implemented these voter suppression statutes did so under Republican governance, either at the Executive or Legislative level:

    STATES WITH STRICT PHOTO ID LAWS—POLITICAL MAKEUP

    WHEN THE LAWS WERE ADOPTED

    Arkansas: Democratic governor, but both the House and Senate were under Republican control.

    Georgia: Republican governor, Republican control of both the House and Senate.

    Indiana: Republican governor, Republican control of both the House and Senate.

    Kansas: Republican governor, Republican control of both the House and Senate.

    Mississippi: Adopted by the voters through a ballot initiative. Republicans, who already controlled the governorship and the state Senate, won a majority of seats in the House in that same election.

    Tennessee: Republican governor, Republican control of both the House and Senate.

    Texas: Republican governor, Republican control of both the House and Senate.

    Virginia: Republican governor, Republican control of both the House and Senate.

    Wisconsin: Republican governor, Republican control of both the House and Senate.

    The Opinion notes that the same pattern holds true for the three “strict, non-photo ID” states, Arizona, North Dakota and Ohio.

    FYI.

    “Posner shows that all of the states that have implemented these voter suppression statutes did so under Republican governance, either at the Executive or Legislative level:

    I got the number wrong. It’s a dozen states with Voter Suppression laws, not dozens.

    But it is 100% a GOP tactic which tells you all you need to know. They don’t like democracy and they don’t like voting and elections.

  • http://www.pandasthumb.org Area Man

    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?

    Even if it weren’t a misconception, does anyone not understand the huge difference between voting and getting on an airplane, as in one is a fundamental right that can’t put other lives at risk?

  • D. C. Sessions

    raven, the States are (at least in front of a court) pretty upfront about their motives. Yes, they’re using voter suppression to get or hold on to power. That’s the way the system works, they admit: to the victor, the spoils. It’s been that way from the beginning and if people don’t like it, amend the Constitution. In the meantime, they’re the ones with a majority on the Supreme Court and (as you say)

    The GOP doesn’t want a democracy. They don’t want elections. They simply want power and will get it any way they can.

    Having a majority on the Supreme Court is a pretty good way to hold onto power.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    No price is too high to pay to protect democracy from its constituents.

  • Michael Heath

    Reginald Selkirk writes:

    How the bleep did that happen? Was Old Dutch having one of his ‘Bitburg’ moments?

    There wasn’t a GOP/conservative partisan/purity test in the Reagan era, or the H.W. Bush era either. See Sandra Day O’Conner, President Reagan’s first nomination to the Supreme Court and David Souter who was nominated by President Bush.

    So why not congratulate Mr. Reagan on a job well done when it came to his Posner appointment. Posner’s influence amongst nearly all jurists is well-earned.

  • eric

    @8: that’s reasonably compelling, but technically we also need to know the number of states with republican governers and republican control of the legislature that didn’t pass such measures. Though I suspect that if we had that data, the picture wouldn’t look too different.

  • raven

    No price is too high to pay to protect democracy from its constituents.

    Pogo: We have met the enemy and it is us.

  • Michael Heath

    Ed writes:

    Judge Richard Posner, a legendary libertarian . . .

    I read a Huffington Post article the other day about Posner’s ruling where they repeatedly described Judge Posner as a conservative.

    I used to read his blog post about economics. From that perspective he shares few of the thinking attributes one finds amongst either ideology. I’m not sure how Posner describes himself.

  • EnlightenmentLiberal

    @Area Man

    Protip: Getting on an airplane free from arbitrary government restrictions is a right. See the due process clause of the fifth, the ninth, and some interesting case law regarding the privileges and immunities clause of the fourteenth.

  • vmanis1

    I am willing to consider Posner a conservative, but in the admirable sense of the term, one who is cautious about change, and encourages moving slowly on issues so as not to incur too many unintended consequences. (This is different from the U.S. meaning of the word, which can roughly be defined as `Ebola ISIS Benghazi Fast and Furious Kenyan Imposter’.)

    He does seem to have changed his opinions over time, he once collaborated with the execrable Robert Bork in advocating for less enforcement of antitrust suits; but he does seem to have moderated his opinions in recent years.

    He also has some very sensible opinions on copyright and patent law, notably arguing both provide excessive protection to the creator, and thus stifle innovation (thus supporting those of us who argue against software patents).

    And, of course, I loved his opinion in the marriage equality case.

    Posner seems to combine brilliance and a deep understanding of the law with a willingness to modify his beliefs in the presence of new evidence. One cannot ask for anything more from a judge.

  • eric

    I know he’s 75, but imagine what even just 4 years of replacing Scalia (or Thomas) with Posner could do.