Oops, Voter I.D. Laws Are Discriminatory, Says Judge Who Upheld Them

Richard Posner, the relentlessly rationalist federal judge and legal scholar, has identified an error in his output product, and a fairly important one: In a new book (on his stack of four or five dozen previous titles) and follow-up interviews, he has announced his conclusion that his 2007 decision in Crawford vs. Marion County Election Board, upholding Indiana's then-new voter-identification law, was wrong.

That decision, a 2-1 vote by the Seventh Circuit Court of Appeals, was upheld by the Supreme Court a year later, 6-3, inspiring a wave of new laws requiring voter I.D., principally in states controlled by Republicans. Republican leaders support the laws because voter I.D. requirements are essentially a sublimated form of the old, now-illegal poll taxes or literacy tests—measures designed and intended to block poor and minority voters from voting, suppressing Democratic support.

But veteran jurist and celebrated law expert Richard Posner did not know this, many years ago, back in 2007. That was six months before the first iPhone would even be released, to help people look up information. "We weren’t really given strong indications that requiring additional voter identification would actually disenfranchise people entitled to vote,” Posner told the New York Times.

Indeed, how could he have known that voter I.D. laws, designed to suppress the vote, might suppress the vote? If only someone had been in the courtroom in 2007 to tell Posner that while an estimated four percent of Indiana's eligible voters lacked identification, there had been "no reports" of voter impersonation—the problem the law was ostensibly addressing—in the state at all. If only he could have been advised that the voter I.D. requirement would disproportionately affect older, poorer, and minority voters, giving a partisan advantage to the Republicans.

Except all those facts are freely available in Posner's own opinion or the accompanying dissent. He explicitly and condescendingly chose to ignore them. When it came to the poor voters who might struggle to get their documents in order, he declared that the plaintiffs representing the Democratic Party were unhappy that they might have to "work harder to get every last one of their supporters to the polls." But the fact that nobody had ever been caught committing voter fraud in Indiana—that there was no evidence of any need for the law—aroused his deepest hypothetical concerns:

[T]he absence of prosecutions is explained by the endemic underenforcement of minor criminal laws (minor as they appear to the public and prosecutors, at all events) and by the extreme difficulty of apprehending a voter impersonator. He enters the polling place, gives a name that is not his own, votes, and leaves...

The plaintiffs argue that while vote fraud by impersonation may be a problem in other states, it is not in Indiana, because there are no reports of such fraud in that state. But that lacuna may reflect nothing more than the vagaries of journalists' and other investigators' choice of scandals to investigate...

How many impersonations there are we do not know, but the plaintiffs have not shown that there are fewer impersonations than there are eligible voters whom the new law will prevent from voting.

Contrast this with his airy account what might happen under a voter I.D. system:

A great many people who are eligible to vote don't bother to do so...The benefits of voting to the individual voter are elusive (a vote in a political election rarely has any instrumental value, since elections for political office at the state or federal level are never decided by just one vote), and even very slight costs in time or bother or out-of-pocket expense deter many people from voting, or at least from voting in elections they're not much interested in. So some people who have not bothered to obtain a photo ID will not bother to do so just to be allowed to vote, and a few who have a photo ID but forget to bring it to the polling place will say what the hell and not vote, rather than go home and get the ID and return to the polling place.

What the hell. Posner envisioned the people barred from the polls by voter ID laws as people who "don't bother...have not bothered...will not bother." They are "not much interested." Nor should they be, in his lofty rational analysis—the kind of economic reasoning Posner has spent his life incorporating into the law—because their individual votes are substantively meaningless. (Except when one vote really does decide an election, as happened one year later, in Alaska, for instance.) These people do not matter.

This is the ideology that gets voter I.D. laws passed in the first place, after the backroom strategists draw them up—the smug belief that certain people, people living the disordered lives that come with poverty and inequality and infirmity, don't really deserve to vote. What sort of folks can't manage to drive to the DMV on their lunch break and present a valid birth certificate? (Folks without driver's licenses.) The fact that these people, when they do vote, overwhelmingly vote against Republicans is taken as a further sign of their illegitimacy. Clearly they aren't part of the civic mainstream.

Nevertheless they are citizens, and—as Posner has finally come around to discovering—their rights as citizens are infringed on by these laws. It's too bad he wasn't able to figure it out when it mattered.

[Image by Jim Cooke]