When 7th Circuit Court of Appeals Judge Richard A. Posner speaks, for better or for worse, lawyers, Judges, and Supreme Court Justices listen. Possibly the most well-known jurist in the country, the Reagan-appointed, conservative Posner is not only an accomplished Circuit Court Judge, he is a Senior Lecturer at the University of Chicago Law School and the author of nearly 40 books. He is 75 years old and were it not for a penchant for raising hackles of the legal community with his acute opinions, he would likely be on the Supreme Court right now.
But perhaps most importantly, Posner authored the Opinion in the the decision of Crawford v Marion County, the 7th Circuit decision in 2008 that upheld Indiana's "Voter ID" law, and which was, in turn, affirmed by the Supreme Court. The case involved the Constitutionality of the first such law in the country, the seminal Voter Suppression statute that spawned so many imitations in other states.
I am not Posner's biggest fan for the same reason that many are not Posner's biggest fans--he is conservative, somewhat egotistical and away from the bench he often ventures into social and economic issues he's not particularly qualified to assess. However he does know the issues of "Voter ID" inside and out. And there is no doubt as to his influence. The Los Angeles Times' Michael Hiltzik accurately describes the regard the legal and judicial community holds towards Posner:
Posner, 75, is no wooly-headed liberal, but a card-carrying conservative who was appointed to the circuit bench by Ronald Reagan in 1981. He's widely regarded as the smartest jurist in the federal judiciary, and was identified in 2000 by Fred Shapiro of Yale Law School as the most-cited legal scholar of all time.
Posner, joined by four Judges on the Seventh Circuit, authored the opinion requesting a rehearing en banc by the entire Seventh Circuit Court of appeals in Frank v Scott Walker et al,
the recent case assessing the validity of the Wisconsin "Voter ID" statute. A three-judge panel of the 7th Circuit had already cleared the way for the Wisconsin law to go into effect prior to next month's elections. Posner's request for rehearing split the Judges of that Circuit 5-5, and thus no rehearing was granted. Posner's opinion, which eviscerates every rationale promoted in support of these suppression laws, was relegated to a "dissent." But unlike most other "dissents," this opinion is likely to reverberate throughout the Judiciary and will be closely scrutinized by the Supreme Court, which stepped in and suspended the law's validity just last week.
The evolution of Posner's attitude toward "voter ID" requirements and the oft-cited trope of "voter fraud" demonstrates a stunning turnaround for the author of the Crawford decision. As Brad Friedman, writing for Salon puts it:
If there was ever evidence that a jurist could change their mind upon review of additional subsequent evidence, this is it. If there was ever a concise and airtight case made against Photo ID laws and the threat they pose to our most basic right to vote, this is it. If there was ever a treatise revealing such laws for the blatantly partisan shell games that they are, this is it.
Posner distills the essence of these noxious statutes as motivated solely by the intent by the Republican Party to suppress Americans' right to vote. As Hiltzik summarizes the opinion:
"There is only one motivation for imposing burdens on voting that are ostensibly designed to discourage voter-impersonation fraud," [Posner] writes, "and that is to discourage voting by persons likely to vote against the party responsible for imposing the burdens." More specifically, he observes, photo ID laws are "highly correlated with a state's having a Republican governor and Republican control of the legislature and appear to be aimed at limiting voting by minorities, particularly blacks."
Posner distinguishes the Indiana law from the Wisconsin one (a necessary exercise, albeit an effective one) in terms of their relative stringency. But his opinion suggests a more substantial re-thinking of the entire issue, and he takes pains to carefully demolish the flimsy arguments and excuses of "voter fraud" proffered by the laws' proponents:
"There is compelling evidence that voter-impersonation fraud is essentially nonexistent in Wisconsin." Assertions about voter fraud are "a mere fig leaf for efforts to disenfranchise voters." He adds that "some of the 'evidence' of voter-impersonation fraud is downright goofy, if not paranoid, such as the nonexistent buses that according to the 'True the Vote' movement [a voter suppression organization originating in the tea party movement] transport foreigners and reservation Indians to polling places."
Indeed, Posner writes, lists of the states that impose the strictest requirements "imply 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...to vote."
The "list of states" is actually a Table (Table 2, page 17) contained within the opinion itself. Posner shows that all of the states that have implemented these voter suppression statutes did so under Republican governance, either at the Executive or Legislative level:
STATES WITH STRICT PHOTO ID LAWS—POLITICAL MAKEUP
WHEN THE LAWS WERE ADOPTED
Arkansas: Democratic governor, but both the House and Senate were under Republican control.
Georgia: Republican governor, Republican control of both the House and Senate.
Indiana: Republican governor, Republican control of both the House and Senate.
Kansas: Republican governor, Republican control of both the House and Senate.
Mississippi: Adopted by the voters through a ballot initiative. Republicans, who already controlled the governorship and the state Senate, won a majority of seats in the House in that same election.
Tennessee: Republican governor, Republican control of both the House and Senate.
Texas: Republican governor, Republican control of both the House and Senate.
Virginia: Republican governor, Republican control of both the House and Senate.
Wisconsin: Republican governor, Republican control of both the House and Senate.
The Opinion notes that the same pattern holds true for the three "strict, non-photo ID" states, Arizona, North Dakota and Ohio.
Posner also sarcastically eviscerates the argument that "Voter ID's" are easy to obtain, are inexpensive, or are somehow akin to "showing an ID" when one boards an airplane. In a final flourish of judicial contempt, Posner characterizes the arguments of the Wisconsin law's proponents as inhabiting a "fact-free cocoon."
A strong antipathy runs through Posner's opinion here, one that should be taken seriously. Posner appears to appreciate the deeply un-American purpose of these laws and he spares no effort to take their essential fiendishness to task, even as he lays their invention at the feet of his own Republican Party. This is damning stuff, the likes of which has never been fully articulated in Judicial opinion. The fact that Posner is the one articulating it will have a profound effect on the "debate" about these laws from this point forward.
Judge Posner's dissenting opinion in the Frank v Scott Walker case is here.
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