One of the country's most celebrated conservative judges has lashed out at the right-wing campaign to enact and enforce strict new voter ID laws, declaring in a 30-page dissent that Wisconsin's new restrictions followed in the path of similar measures "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."
"The net effect of such requirements," he wrote, "is to impede voting by people easily discouraged from voting, most of whom probably lean Democratic."
Judge Richard Posner's argument was directed at the 7th Circuit Court of Appeals, of which he is a member, after the court chose not to rehear a case against the Wisconsin law. Though temporarily suspended by the Supreme Court, the law is expected to go into effect in time for the next round of primary and general elections in 2015 and beyond.
In the opinion, Posner, a Reagan appointee who once provided high-profile support for similar measures but reversed course in a book released a year ago, said he now believes that voter suppression, not protection against fraud, is the driving force behind the restrictions.
"There is only one motivation for imposing burdens on voting that are ostensibly designed to discourage voter-impersonation fraud, if there is no actual danger of such fraud," Posner wrote, "and that is to discourage voting by persons likely to vote against the party responsible for imposing the burdens."
The full opinion is very long, but here are a few particularly colorful passages:
Despite the absence of any evidence that voter-impersonation fraud is an actual rather than an invented problem, whether in Wisconsin or elsewhere in the United States, the panel opinion contends that requiring a photo ID for eligibility to vote increases "public confidence in the electoral system." The emphasis it places on this contention suggests serious doubt by the panel members that the photo ID law actually reduces voter impersonation. But there is no evidence that such laws promote public confidence in the electoral system either. Were there such evidence it would imply a massive public misunderstanding, since requiring a photo ID in order to be permitted to vote appears to have no effect on election fraud.
Goofy? Paranoid? Here Posner points out that "even Fox News" has reported skeptically on the laws:
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 transport foreigners and reservation Indians to polling places. ... Even Fox News, whose passion for conservative causes has never been questioned, acknowledges that 'Voter ID Laws Target Rarely Occurring Voter Fraud,' noting that 'even supporters of the new [photo ID] laws are hard pressed to come up with the large numbers of cases in which someone trued to vote under a false identity."
And here he challenges the suggestion that the relative ease of obtaining ID poses no obstacle to would-be voters:
"The panel opinion does not discuss the cost of obtaining a photo ID. 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."
The cost, he notes, ranges from "about $75 to $175," and creates the effect of an unconstitutional "poll tax."
Posner's artful rant makes for good reading and provides a morale boost for the people fighting these blatantly suppressive initiatives. But for those targeted — in 31 states, from Ohio to the deep red of the Deep South — the forecast for this coming Election Day remains bleak. The best hope for opponents now is that legal thought will coalesce around the facts of the matter, as Posner's own thinking does here, and we see a nonpartisan re-appraisal of these ugly laws.