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Judge Posner's Sharp, Uncompromising Rebuke of Wis. Voter ID Law

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By Mark Wilson, Esq. on October 13, 2014 1:49 PM

Let's step back a second and take a look at where Wisconsin's voter ID law is. On September 12, a three-judge panel of the Seventh Circuit heard oral arguments on the validity of Wisconsin's voter ID law. Almost immediately afterward, the panel stayed the district court's injunction, allowing Wisconsin to enforce the law. Several groups requested a rehearing on the stay, which the court denied, along with a sua sponte request by one of the Seventh Circuit judges to rehear the motion en banc. On October 6, the panel issued its opinion finding the law constitutional.

Then on October 9, the U.S. Supreme Court issued a short order -- with a dissent from Justices Alito, Scalia, and Thomas -- vacating the September 12 order, preventing Wisconsin from enforcing the law for this election. A day later, the Seventh Circuit denied Judge Richard Posner's sua sponte request to rehear the case en banc.

Judge Posner Dissents (and Regrets)

As with the request to rehear the motion to stay en banc, this one tied 5-5, with Judges Posner, Rovner, Williams, Hamilton, and Chief Judge Wood on the dissenting side. This time, Posner wrote the dissent, giving himself an opportunity to put into case law an opinion that he espoused in 2013 -- namely, that he got Crawford v. Marion County wrong. (Though he later rescinded his rescission.)

Crawford was a 2007 challenge to Indiana's voter ID law that has now formed the foundation of states' defenses to voter ID law challenges. Posner immediately distinguished this case and Crawford; in the latter case, the voter ID law wouldn't "disenfranchise more than a handful of voters," while in Wisconsin, it looked like 300,000 might not be able to vote. Essentially, reliance on Crawford is misplaced because the situations are really different -- but to the issue of Posner's reconsideration of Crawford, he's able to reiterate the position that, had he known then what he knows now about voter ID laws, he would have decided the case differently.

Posner's on a Rampage

The dissent here was forceful and direct. Posner took the bold move of calling voter ID laws what they are: political machination masquerading as public policy. Through maps and tables, he demonstrated 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, or who are unlikely to have a driver's license or feel comfortable dealing with officialdom, to vote, and that liberal states try to make it easy for such people to vote because if they do vote they are likely to vote for Democratic candidates.

He also called out the legislative facts -- the many "whereas" statements preceding legislation that provide the factual buttress for the legislation -- as so contradicted by reality that it would be a mistake to rely on them to justify upholding the voter ID law. "As there is no evidence that voter-impersonation fraud is a problem, how can the fact that a legislature says it's a problem turn it into one?" Posner asked.

And to put a cherry on top of the claim that voter ID is a cynical attempt to suppress votes, Posner observes, citing an op-ed in The Wall Street Journal claiming the contrary, "If photo ID laws increase minority voting, liberals should rejoice in the laws and conservatives deplore them. Yet it is conservatives who support them and liberals who oppose them. Unless conservatives and liberals are masochists, promoting laws that hurt them, these laws must suppress minority voting and the question then becomes whether there are offsetting social benefits -- the evidence is that there are not."

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