We talked about Judge Posner’s admission that he made a mistake in the Indiana voter ID case – that case cleared the way for the voter suppression efforts we’re now seeing all over the country.
Posner’s admitting a mistake is a big deal in voting rights circles because he’s a very high-profile conservative and his owning up takes away one more fig leaf for these laws. However, Posner blamed the advocate in the case for not presenting enough information. The lawyer who argued the case wrote this in response:
As the lawyer who argued the constitutional challenge to the Indiana Voter ID law in the Supreme Court in 2008, I was both fascinated and pleased to hear that Judge Richard Posner – the author of the Seventh Circuit majority opinion affirmed by the Supreme Courtin Crawford v. Marion County Elections Board – has now publicly stated that he was wrong. It is refreshing, if not unprecedented, for a jurist to admit error on such a major case.
I was a little less pleased to see that he attempted to excuse his error by blaming the parties for not providing sufficient information to the court. As he put it in an interview quoted in the New York Times, weren’t given the information that would enable that balance to be struck between preventing fraud and protecting voters’ rights.” Really? The information provided was enough for the late Judge Terence Evans, dissenting from Judge Posner’s decision, to say quite accurately: “Let’s not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by folks believed to skew Democratic.”
There had never been a single known incident of in-person voter impersonation fraud in the history of Indiana and there have been precious few nationally – yet the Indiana law targeted only in-person voting. The law was passed immediately after Republicans took complete control of the legislature and governorship of the State of Indiana.
Every Republican legislator supported the law, while every Democratic legislator opposed it.Indiana Secretary of State Todd Rokita, the primary supporter of the bill, himself stated that there are certain “groups of voters for whom compliance with [the Voter ID law] may be difficult” because they are “registered voters who do not possess photo identification; who may have difficulty understanding what the new law requires of them; or who do not have the means necessary obtain photo identification.” As examples he mentioned “elderly voters, indigent voters, voters with disabilities, first-time voters, [and] re-enfranchised ex-felons.” Moreover, the district court had conservatively estimated that there were 43,000 voting-age Indianans without a state-issued driver’s license or identification card, and that nearly three-quarters of them were in Marion County, which includes Indianapolis. In other words, the persons most likely to be affected were poor and minority residents in the state’s largest city, who tended to vote Democratic and lived in a city that was trending Democratic.
And by the time of the Seventh Circuit ruling, the facts also showed that following passage of the Voter ID law, voter turnout in Marion County in the 2006 midterm general election had fallen significantly, relative to turnout in the rest of the state, as compared to the 2002 midterm general election that preceded the passage of the Voter ID law. In 2002 Marion County turnout was only three percentage points lower than turnout in the rest of the state. In 2006, the gap rose to eight percentage points.
But the unfortunate approval of the Indiana law that the Seventh Circuit provided cannot fairly be blamed on how the case was litigated. As Judge Posner now recognizes, voter ID laws are “widely regarded as a means of voter suppression rather than of fraud prevention.” But Judge Posner’s dissenting colleagues recognized that all along.
Wrongfully denying people the right to vote creates a real conundrum. The targeted voters can’t throw out the politicians who passed the laws because they can’t vote as a result of the laws. In that way, voting laws and restrictions are unlike other legislation, say, a law like Obamacare.
We really can’t allow elected politicians to put in election laws that protect them from the political repercussions of the election laws they put in.
On the other hand, this might be another dumb strategy. The GOP voter suppression efforts in 2012 drove up turnout among Democrats. Florida voters were downright inspiring in their absolute determination to get around the mix of incompetence and malice with which their state chose to administer an election.