Judge Posner Destroys Conservative Claims Again

Judge Posner Destroys Conservative Claims Again October 15, 2014

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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