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A Step Ahead of SCOTUS


Yesterday, Adam Liptak’s (now free!) column in the NYT addressed the question of photo identification and voting — specifically, whether it’s right (constitutionally, pragmatically, morally) to require voters to show photo ID when they go to their polling places. Law and Economics leader Judge Posner says it’s no big deal to ask people to get photo IDs, and it’s OK to require them (another illustration of how the Law & Economics movement is divorced from the real world). Judge Posner last year upheld an Indiana law necessitating ID’s in a decision that was seen to clear the path for other states to push through these restrictive laws.

So what’s wrong with the laws? Well, first of all, it is much harder than Posner realizes for many people — particularly the poor — to get photo IDs. This is especially true in urban areas where many people do not drive. And these laws then become an ingenious way to stop poor, usually Democrat, voters from being able to exercise their franchise right. The other problem with these laws is that they address a false problem: no one has reported or provided evidence of voter ID fraud (e.g. impersonating a registered voter). As Liptak notes:

The available evidence, thin though it is on both sides, does suggest that “the number of legitimate voters who would fail to bring photo identification to the polls is several times higher than the number of fraudulent voters,” Spencer A. Overton, a law professor at George Washington University, wrote in an article on voter identification published in the Michigan Law Review in February.

Seems the Supreme Court is in agreement that this is an issue of constitutional proportions; after its issue conference yesterday, it granted certiorari and will hear an appeal of Posner’s decision. Given the rightward shift the Court has taken over the last few years (well, over the last few decades too, but especially over the last few years), I’m skeptical that the outcome will be in favor of the protection of the constitutional rights of the poor.

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