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Another Winner From Late-Period Posner

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Judge Posner’s Voter ID opinion — which, alas, came in the form of a dissent from the denial of an en banc hearing — is indeed a beauty. My favorite graf:

Voter-impersonation fraud may be a subset of “Misinformation.” If so, it is by all accounts a tiny subset, a tiny problem, and a mere fig leaf for efforts to disenfranchise voters likely to vote for the political party that does not control the state government. Those of us who live in Illinois are familiar with a variety of voting frauds, and no one would deny the propriety of the law’s trying to stamp out such frauds. The one form of voter fraud known to be too rare to justify limiting voters’ ability to vote by requiring them to present a photo ID at the polling place is in-person voter impersonation.

Or maybe it’s this one:

As there is no evidence that voter impersonation fraud is a problem, how can the fact that a legislature says it’s a problem turn it into one? If the Wisconsin legislature says witches are a problem, shall Wisconsin courts be permitted to conduct witch trials? If the Supreme Court once thought that requiring photo identification increases public confidence in elections, and experience and academic study since shows that the Court was mistaken, do we do a favor to the Court-do we increase public confidence in elections-by making the mistake a premise of our decision? Pressed to its logical extreme the panel’s interpretation of and deference to legislative facts would require upholding a photo ID voter law even if it were uncontested that the law eliminated no fraud but did depress turnout significantly.

You also have to love the appendix titled “Scrounging For Your Birth Certificate in Wisconsin” (a direct shot at Easterbrook’s embarrassing opinion.) The dissent also does a good job distinguishing the case from Crawford, although Posner and the Supreme Court were wrong then too.

I really hope that Ponsner ends up hearing a case brought by the ACA troofers; that could possibly result in the most entertaining opinion in judicial history.

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  • I would’ve liked a more express renunciation of Crawford, instead of “well, but the record is totally different this time.” But, yes, good stuff.

    • medrawt

      he does acknowledge that the dissent in Crawford’s declaration of partisan (racialized) motivation now seems “prescient,” which is at least a little more.

  • rea

    More ammo for my love-hate relationship with Posner. he got us into this mess–he ought to figure out a way to get us out.

    • burnspbesq

      No, the plaintiffs in Crawford got us into this mess, by filing a facial, pre-enforcement 14th Amendment case with not a shred of evidence to back up their claims.

      Facial, pre-enforcement challenges are inherently about making shit up. The plaintiffs come in with their dystopian fantasies of what will happen if the law goes into effect, the defendants respond with their utopian fantasy what will happen if the law goes into effect, and the court chooses between the fantasies.

      The Texas case is an example of how to do voting-rights litigation right.

  • Nobdy

    Judge Evans, dissenting from our decision in Crawford, called the Indiana law “a not too thinly veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic.” 472 F.3d at 954. But he cited no evidence to
    support his conjecture—a conjecture that now seems prescient, however.

    This rankles me. How about just admitting that Evans was right and you were wrong. Certainly “prescient” is the wrong term. Evans understood what was going on and called it out. That isn’t really prescient. It’s observant.

    • Aimai

      Right–that bugged me too. Its not prescient to grasp the origin of a practice. Its just clear thinking, observation, or good reasoning. You don’t have to be a psychic to know which way the wind has blown.

      • Manju

        You don’t have to be a psychic to know which way the wind has blown.

        Nor do you need to be Bill Ayers

      • burnspbesq

        Clear thinking, observation, and good reasoning, and $3.50, will get you a cookie and a bottled water at Starbucks. Clear thinking, observation, and good reasoning, without any evidence in the record to support them, makes you a loser. Why is the importance of facts in the record so hard for some folks to understand?

    • catclub

      I think some of the legal system is too much like High school debate “But he cited no evidence to
      support his conjecture”

      All that seems to matter is whether or not you can cite a case.

    • liberalrob

      Isn’t it odd how “conjectures” sometimes turn out to be “prescient.” Almost as if those doing the “conjecturing” knew what they were talking about and were not in fact conjecturing.

      I guess Posner’s excuse is that there was no evidence of voter suppression caused by the Indiana law until votes were in fact suppressed. While in this case there is no evidence of voter fraud so there is no legitimate reason to burden voters with an ID law. Kinda thin for a CYA.

    • Gwen

      Hrm. Seems to be saying “he was right for the wrong reasons, and we were wrong for the right reasons.”

    • DrDick

      Judges not being known for their small egos and lack of pride, I will take this as overt an admission of error as we are likely to get.

  • sleepyirv

    Gay marriage bans, voter suppression statutes – these are stupid laws states end up having to defend in front of Posner. But who would be crazy enough to pick the 7th Circuit as to try an ACA troofer attack? Posner might disbar the attorney on general principle that no one that stupid should be allowed near a courtroom.

    • burnspbesq

      Admission to the bar is a matter left entirely to the states. The most Posner could do in your scenario is make the lawyer’s time at the podium a living hell, and then sanction him/her for bringing a frivolous appeal.

  • Karate Bearfighter

    The district court’s opinion in the Wisconsin cases was a thing of beauty — a 70 page opinion devoted primarily to factual findings on harm to voters, and a 20 page appendix on the statistical methods used by the expert witnesses. It is one of the most thorough discussions of a factual record I have ever seen, and it was clearly aimed at Posner’s claim that Crawford hadn’t sufficiently demonstrated voters would be harmed.

    The fact that the 7th circuit panel could rely on deference to “legislative facts” would be a joke under most circumstances, but it was especially offensive in light of the opinion it overturned.

  • Denverite

    I really hope that Ponsner ends up hearing a case brought by the ACA troofers; that could possibly result in the most entertaining opinion in judicial history.

    His opinion in the Notre Dame religious accommodation case is a good amuse bouche:

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2014/D02-21/C:13-3853:J:Flaum:dis:T:fnOp:N:1295328:S:0

    In my warped fantasy world, Scalia sneaks into the Seventh Circuit oral argument and throws a shoe at Posner, Wood just starts pounding her head on the table, and Easterbrook sneaks under the bench to eat a ham sandwich.

  • catclub

    I think the lede is still hidden. His dissent means he lost the argument.

    On Balloon Juice they were complaining about the ‘partial’ win of getting the SC to stay the closure of clinics in Texas – a win.

    “Man convinces everyone except the people who matter with his great argument”

    • Karate Bearfighter

      I wouldn’t go that far. There’s been some speculation that his dissent was one of the reasons the Supreme Court stayed the Wisconsin ID law.

      • Bingo. Just as with Judge Dennis’s dissent in the TX abortion case. They write those 60-page dissents for a reason, not just to see themselves in print.

      • catclub

        Thanks. That is more encouraging.

  • Origami Isopod

    If the Wisconsin legislature says witches are a problem, shall Wisconsin courts be permitted to conduct witch trials?

    Obviously, yes. Why does Judge Posner want to bind the hands of righteous men in such a manner? We can’t be having with this sort of judicial activism.

    • MAJeff

      Don’t give the Cheeseheads any ideas!!!!

      • Aimai

        There’s some kind of fried cheese curl joke here but the thought of it is raising my cholesterol level so I won’t make it.

  • cheyanne

    As Posner says in “I Did Not “Recant” on Voter ID Laws”, he conjectured:

    ‘Our opinion pointed out that “as far as anyone knows, no one in Indiana, and not many people elsewhere, are known to have been prosecuted for impersonating a registered voter. But [this could not be decisive, because] the 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.” ‘

    Now when one political group wants to pass a law to prevent non-existent crime; a law that has been used in the past to disenfranchise citizens; a law that will disenfranchise primarily voters of the opposite party, Posner did not feel that he was responsible for questioning the stake that the political party had in future elections.

    • Aimai

      Why would the “absence of prosecutions” be explained by the “endemic underenforcement of minor criminal laws?” Occam’s razor would tell you that the “absence of prosecutions” follows naturally from the absence of complaints because of the infrequency of in person voter fraud. The two major political parties in this country, and every individual Politician, have a vested interest in maintaining close watch on the voting public. People watch the polls closely and even check who has voted and drag their own voters to the polls. It would be incredibly difficult to vote in person for someone else without risking that the party with which they are affiliated would notice and complain since you are costing them a vote. If there were enough fradulent voters to matter–organized in some fashion–it could never be kept a secret (first rule of conspiracies) and somebody would complain.

      There have been cases of voter fraud but as far as I know all of them result from Republicans and a few Democrats who have the money to have more than one house registering simultaneously in two districts and voting twice–but they weren’t impersonating anyone. They were just voting more than once. People sometimes do this by absentee ballot, as well, when they live in one state but want to vote on issues in their vacation home state.

    • Hogan

      the 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.

      There were millions of elephants dancing in the snow, but they didn’t leave any footprints.

      (h/t Bill James)

      • mutterc

        To expand a bit, I wouldn’t think I need to post this, but apparently there are people (including Federal judges) who don’t know: voter impersonation *does* leave footprints.

        The list of registrations issued ballots is public record (I know firsthand in NC, and I assume every State does something like this). So if a voter is impersonated, one of the following three things must happen:

        1) The real voter has already voted, in which case the impersonator gets busted (for attempting to vote “twice”).
        2) The real voter attempts to vote after the impersonator, in which case the real voter is similarly busted (and hopefully gets everything sorted out; if the impersonator voted early or absentee, their ballot can be un-counted)
        3) The real voter doesn’t vote in that election, in which case the list of who voted includes people who didn’t actually vote in that election.

        Motivated people have tried their best to find a nontrivial incidence of case #3, to no avail.

  • jon

    “a law that has been used in the past to disenfranchise citizens”

    This is the part I don’t get. On one side, it seems obvious that this is not a significant fraud. But on the other side, it also doesn’t seem like a significant number of people will be disenfranchised. Who doesn’t have ID these days? And if you don’t, is getting ID a significant barrier to voting?

    It all seems like the ultimate “mountain out of a molehill” on both sides.

    • Davis X. Machina

      Those are precisely the quenstions answered in the apparatus to Posner’s dissent.

    • Murc

      Who doesn’t have ID these days?

      Literally millions of Americans. If you weren’t born in a hospital and have never needed to drive or travel outside the country, you almost certainly lack ID sufficient to satisfy many voter ID requirements.

      And if you don’t, is getting ID a significant barrier to voting?

      Yes. If you don’t have a birth certificate, getting ID sufficient to vote in many of the states that have enacted voter ID laws can be a long and difficult process. If you do have a birth certificate, laying hands on a copy of it sufficient to begin the process of getting valid ID can still be a long process that costs you money.

      It should never, ever, cost money to vote. Not one red cent.

      Also, many of these laws expressly forbid the use of otherwise-valid IDs to cast ballots. College student trying to vote in the state where you live nine months of the year? Well, unless you go to the time and hassle of transferring your drivers license to that state (and maybe you don’t drive!) you don’t have sufficient ID to do so, because your college ID means shit to them. You have to go through the hassle of getting non-drivers ID, which might require acquiring your birth certificate, etc.

      Which is all besides the point, which is that if there’s no provable fraud, and these laws disenfranchise a single person, that’s one person too many.

      • Aimai

        Yes: the ID laws are often bizarre since you often can’t use an expired picture ID even though the ID demonstrates that you are who you say you are.

        • mutterc

          Not bizarre at all, since the point is to make voting more inconvenient, not to increase security.

          Another sure sign pointing to disenfranchisement as the goal: requiring that the address on the ID match up with your voting-residence address – the address you give DMV isn’t any more secure or verified than the address you give the Board of Elections.

        • that kid in the corner

          From your lips to every bartender’s ears. (“How does my ID expiring make me younger? Time is a one-way thing!”)

          • Lee Rudolph

            Serious answer: when people’s IDs expire, and they get replacements, they often don’t destroy the old ones. I myself found a few of my old driver’s licenses around the house recently. (On the other hand, none of them could credibly be construed as the picture ID of anyone under drinking age. But I decided to destroy them anyway.)

      • Emily68

        Don’t forget that you don’t have a birth certificate, you need some kind of ID to get one. And the people who don’t have the birth certificate are less likely to have the ID you need to get the birth certificate.

    • Karate Bearfighter

      According to Judge Adelman, 10% of Wisconsin’s eligible voters likely lack I.d.

    • Hogan

      Who doesn’t have ID these days? And if you don’t, is getting ID a significant barrier to voting?

      94-year-old woman in Philadelphia, been registered to vote all of her adult life. Never had a driver’s license. Had a copy of her birth certificate, but it was destroyed in a house fire.

      Pennsylvania passes Voter ID. Woman calls the county in Virginia where she was born and requests a copy of her birth certificate. They say “Sorry, we had a fire too.”

      What would you tell her? “Just a molehill”?

      • Aimai

        The elderly nuns were prevented from voting.

        • SnarkiChildOfLoki

          I’m not 100% sure, but I think that’s a “you are going straight to Hel” type of action.

        • John Revolta

          Jeez, the more I hear about the people who DON’T have ID, the more I think that WE oughta be demanding it.

          Seriously though, if you want to know if these laws are meant to favor one side or another, all you have to do is look at who is trying to get them enacted.

    • efgoldman

      But on the other side, it also doesn’t seem like a significant number of people will be disenfranchised

      The numbers are in the hundreds of thousands – in each state.
      But why do I think you’re just trolling?

      • Murc

        Well, let’s be fair. I’ve met more than my share of solid citizens who are or were skeptical of the perniciousness of voter ID laws, because they live in a world where not having an ID basically makes you some sort of freakish nonperson, like an off-the-grid-living conspiracy nut. They’re like “Who doesn’t have ID? You need one to do anything. You can’t even buy booze without one!”

        Only, that really isn’t the case. And they just have no idea.

        Thankfully, such people who are in good-faith ignorance of the facts are usually able to be brought around by showing them numbers, and when you explain things like “prior to the 70s, if you were black and born in this country you more likely than not don’t have a birth certificate” they go “ohhhhhhh. That makes sense!”

        Assuming good faith, of course.

        • that kid in the corner

          That question and its variations (how do you use a credit card without ID? Board a plane? Drive a car?) really make me want to trot out the old “examine your privilege” card. But good on you for assuming good faith, if it’s actually changing minds.

      • Manju
  • mds

    which, alas, came in the form of a dissent from the denial of an en banc hearing

    Because the panel split 5-5. If Obama had been able to fill the vacancy on the 7th Circuit, it would likely have been 6-5 in favor of an en banc hearing. Which is to say, fuck Patrick Leahy sideways with a printed copy of Posner’s dissent. Senate Democrats finally stop sharting about the comity and tradition that Senate Republicans have already beaten to death, blow up the filibuster for appointments, and … judicial vacancies remain vacant because Leahy’s decided he needs a fucking permission slip from reactionary shitbags like Ron Johnson before he’ll allow nominations to go forward.

  • rewenzo

    I like Posner’s dissent but LOL at calling his $211,200 per annum salary “upper-middle-class.”

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