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Thursday, May 16, 2024 | Back issues
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Voter ID Law Has Posner Smelling Rot in Wisconsin

CHICAGO (CN) - Judge Richard Posner pointed to Fox News in denouncing the 7th Circuit's refusal to hold an en banc rehearing on Wisconsin's voter ID law.

It has been about a month since a three-judge panel of the 7th Circuit overturned a federal judge's finding that Wisconsin's law violated the U.S. Constitution and the Voting Rights Act.

That decision has since been stayed by the Supreme Court, but the full federal appeals court confirmed it first with a 5-5 split vote on rehearing the case en banc.

In the lead opinion on the subject, Judge Frank Easterbrook brushed aside concerns of voter confusion and unfairness ahead of the November elections, saying the law "was enacted in May 2011."

"Voters in Wisconsin who did not already have a document that Wisconsin accepts have had more than three years to get one," he added.

Judges Diane Sykes, John Tinder, Joel Flaum, and Michael Kanne joined Easterbrook.

Judge Ann Claire Williams spoke for the other half of the court. "It simply cannot be the answer to say that 90 percent of registered voters can still vote," she wrote. "To say that is to accept the disenfranchisement of 10 percent of a state's registered voters; for the state to take this position is shocking."

Posner joined that opinion, along with Judges Diane Wood, David Hamilton and Ilana Rovner. Those four judges meanwhile the separate dissent Posner filed in the case Friday, complaining that the panel opinion is "riven with weaknesses."

"The panel opinion does not discuss the cost of obtaining a photo ID," Posner wrote. "It assumes the cost is negligible. 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."

Posner also highlighted the "common misconception" inherent in the panel's suggestion "that obtaining a photo ID to vote can't be a big deal, because one needs a photo ID to fly."

Though the panel noted the need for photo ID to pick up prescriptions or to open a bank account, Posner said Wisconsin law makes no such requirement. Federal law meanwhile does not require a photo ID to buy a gun at a gun show, flea market, or online, he added, undermining three other examples that the panel gave.

"The panel does say, in the same paragraph of its opinion, that it 'accept[s] the district court's finding [that 300,000 registered voters lack acceptable photo ID in Wisconsin] in this case,' but coming after a recitation that mistakenly implies that one can do virtually nothing in this society without a photo ID, the implication is that those 300,000 have only themselves to blame for not being allowed to vote," Posner said.

Blasting claims of voter-impersonation fraud as "goofy" and "paranoid," the judge said Wisconsin failed to point to a single instance of known voter impersonation in any recent election. Moreover all 10 states with a strict photo ID requirement adopted their laws under a Republican administration.

"Even Fox News, whose passion for conservative causes has never been questioned, acknowledges that 'Voter ID Laws Target Rarely Occurring Voter Fraud,'" the judge said, citing a September 2011 article.

The political lines are clear, according to the dissent.

"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," Posner wrote.

A study by Stephen Ansolabehere and Nathaniel Persily for the Harvard Law Review meanwhile showed that voter ID laws do not increase voter confidence in the honesty of the election, according to the dissent.

Posner noted that the panel's dismissed the study as "not peer-reviewed."

"So much for law reviews," he added. "(And what about Supreme Court opinions? They're not peer-reviewed either.) Persily, incidentally, was chosen to be research director for the Presidential Commission on Election Administration, a nonpartisan body co-chaired by the former counsel to Governor Romney's, and the former counsel to President Obama's, 2012 presidential election campaigns."

Posner called it "fair enough" for the panel to gauge interest from the statistic that 22 percent of eligible voters in Wisconsin have not registered to vote.

"But the panel further infers that the 9 percent of registered voters who don't have photo IDs must likewise be uninterested in voting, since they are unwilling to go to the trouble of getting a photo ID," Posner added. "Wrong. The correct inference from the face that registered voters lack photo IDs is the opposite of the panel's assertion that their failure to vote proves them to be uninterested in voting. Why would they have bothered to register if they didn't want to vote? Something must have happened to deter them from obtaining the photo ID that they would need in order to be permitted to vote."

Amid such compelling evidence against Wisconsin's law, and the myriad weaknesses in the panel's opinion, the case should have been reheard en banc, Posner added.

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