In a boost to Republican presidential candidate Donald Trump, an especially conservative panel of three Republican-appointed judges stayed a trial judge’s decision weakening Wisconsin’s voter ID law. Voter ID laws are a common tactic favored by conservative lawmakers which tend to shift the overall makeup of the electorate rightward.
Although these laws, which require voters to show photo ID at the polls in order to cast a ballot, are frequently justified as a way to combat voter fraud at the polls, such fraud is virtually non-existent. Indeed, such fraud is so rare that a nearly two year-long investigation by a top Republican elections official and major supporter of voter ID found exactly zero cases of voter impersonation at the polls. Similarly, when the Supreme Court considered a voter ID law in 2008, the Court’s plurality opinion was only able to cite one example of voter fraud at the polls over the course of 140 years!
Though this order is very bad news for supporters of voting rights, Wisconsin voters who face disenfranchisement do have one reason for hope. After the first Seventh Circuit panel’s decision reinstating the voter ID law, lawyers challenging the law asked the full Seventh Circuit to hear the case, and the ten active judges of the court split 5–5 on whether to do so. Under the court’s rules, an even split means that the panel’s decision remains in place.
Since then, however, Judge John Tinder, a GW Bush appointee, took semi-retirement. Accordingly, the full court is likely split 5–4 on voter ID laws, with skeptics of the laws holding a majority.
If this means Posner writing for an en banc majority, it will have been worth it.