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Posner pens blistering takedown of voter ID law (UPDATE)

Seventh U.S. Circuit Court of Appeals Judge Richard Posner writes May 16 in his office at the Dirksen Federal Building in Chicago. (Staff photo by Kevin Harnack)

Seventh U.S. Circuit Court of Appeals Judge Richard Posner writes May 16 in his office at the Dirksen Federal Building in Chicago. (Staff photo by Kevin Harnack)

Less than a day after the U.S. Supreme Court stayed Wisconsin’s voter ID law, 7th U.S. Circuit Court of Appeals Judge Richard Posner wrote a blistering takedown of the law and what he sees as its effects.

According to Posner’s dissent Friday, there is evidence the law disenfranchises poor people and minorities. He said Republicans’ claims that the law prevents voter fraud don’t stand up and that some such claims are “downright goofy, if not paranoid”

“There is evidence both that voter-impersonation fraud is extremely rare and that photo ID requirements for voting, especially of the strict variety found in Wisconsin, are likely to discourage voting,” Posner wrote. “This implies that the net effect of such requirements is to impede voting by people easily discouraged from voting, most of whom probably lean Democratic.”

Wisconsin’s voter ID law was put on hold by the U.S. Supreme Court in a 6-3 decision Thursday night amidst concerns that the state would not be able to do everything necessary to ensure the law worked in time for the state-wide elections Nov. 4.

The law was passed in 2011 but has been on hold as it has been reviewed by state and federal courts.

Posner’s dissent came as a result of a request he made to have the voter ID case reheard by all 10 judges of the Chicago-based 7th Circuit. A three-judge panel from the court, all of whom were appointed by Republican presidents, upheld the law Monday, a move that surprised few since they allowed the law to be implemented while it decided the case.

As with a previous request for review, though, the court was split 5-5, and the request was denied. The five who voted to deny a rehearing were appointed by Republican presidents, while three who voted to allow a re-hearing were appointed by Democratic presidents. Posner, who was appointed by President Ronald Reagan in 1981, was also joined by Judge Ilana Rovner, who was appointed by President George H. W. Bush in 1992.

Justices’ decision about ‘timing,’ not merits

While Thursday’s U.S. Supreme Court decision to put the state’s voter ID law on hold was seen as a victory, those with knowledge of the case say the decision doesn’t necessarily predict how the court would vote if they took the case.

“It’s hard to read much into it,” said Barry Burden, a political science professor at the University of Wisconsin-Madison. “It’s not a 5-4 decision. Maybe there’s a little wiggle room.”

The court’s decision was 6-3, per a request from the plaintiffs, and was made over concerns that the state could not properly implement the law by the Nov. 4 election. The three dissenting justices, Samuel Alito, Antonin Scalia and Clarence Thomas, even noted these concerns in a brief dissent, though they felt the court may not intervene in the case unless it was proven that the court “demonstrably” made a mistake in their ruling.

Burden said it was clear this was “about the timing of the law, not the merits of the law” and that it doesn’t necessarily prove how the court would rule if it accepted the case.

Still, that’s not stopping the plaintiffs from expressing optimism.

Larry Dupuis, legal director of the American Civil Liberties Union of Wisconsin Inc., which is representing the plaintiffs, said the ruling makes it “pretty apparent the real driver here is the prospect of electoral chaos.” He added, however, that some of the case’s merits may have played a role in their decision, instead of just a “procedural application.”

“[It] does not indicate one way or another the way the court is going on the merits,” Dupuis said. “On the other hand, I think, as the dissenters indicated, the merits do play some role in the stay.”

— Eric Heisig

Posner, in his dissent, wrote that “the law should be invalidated; at the very least, with the court split evenly in so important a case and the panel opinion so riven with weaknesses, the case should be reheard en banc.”

In his dissent, the appellate judge references several articles that show voter ID laws prevent certain populations from voting. He inserted graphics and charts to show that the strictest laws are passed in Republican-controlled states.

Wisconsin’s effects are more troubling, though, he wrote, as it is estimated that about 300,000 people do not have the proper ID required to vote under the law. That is about 9 percent of the population.

“The author of this dissenting opinion has never seen his birth certificate and does not know how he would go about scrounging it up. Nor does he enjoy waiting in lines at motor vehicle bureaus,” Posner wrote. “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.”

Posner’s dissent Friday was not just notable for his attack on the law. The longtime judge also wrote the 7th Circuit’s 2007 decision in Crawford v. Marion County Election Board, which upheld Indiana’s voter ID law. The U.S. Supreme Court upheld that law in 2008.

His dissent points out that Wisconsin’s voter ID law is much different than Indiana’s law, no matter what the three-judge panel ruled Monday.

“There was no evidence that the Indiana law was likely to disenfranchise more than a handful of voters,” Posner wrote. He noted that Wisconsin’s law is much more prohibitive, limits the types of identification a person must use to vote and gives Wisconsin voters less time to prove they have a valid ID if they don’t have it at the poll.

He also wrote that it is ridiculous to think the Supreme Court should not be questioned, even if a large amount of evidence shows that one of their decisions has done more harm than good.

“Does the Supreme Court really want the lower courts to throw a cloak of infallibility around its factual errors of yore?” Posner wrote. “Shall it be said of judges as it was said of the Bourbon kings of France that they learned nothing and forgot nothing?”


About Eric Heisig

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