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Second Thoughts on Voter ID: Posner Admits Laws are Used to Disenfranchise

J. Mijin Cha

In 2005, Indiana passed a law requiring voters to present a government issued photo-ID before they would be allowed to vote. The law was challenged by voting rights advocates and was upheld by the Appellate Court and ultimately, the Supreme Court. The Appellate Court concluded that the burden placed on potential voters to show a photo-ID was outweighed by the state’s interest in reducing voter fraud. The Supreme Court upheld the Appellate Court ruling in the case, Crawford v. Marion County, for the same reasons. The case opened the door for states to pass restrictive voter ID laws and currently twelve states have photo-ID laws in effect with another seven waiting to be implemented.

Now, the author of the Appellate Court ruling, Richard Posner, has come out and withdrawn his support for voter-ID laws. Judge Posner writes in his new book, Reflections on Judging, that the Indiana law in the Crawford case is “a type of law now widely regarded as a means of voter suppression rather than of fraud prevention.” Noting that times had changed, Posner said that at the time of the case, there was little indication that requiring additional voter identification would actually disenfranchise people to vote. Indeed, in his opinion, Posner notes that not a single plaintiff in the lawsuit who did not intend to vote because of the new ID requirements.

Yet, while Posner claims he was not aware of the impact voter ID would have, the dissenting judge in the case, Terence Evans, wrote, “Let’s not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic.” And, Evans was right. Restrictive voter ID laws, particularly those that require a photo ID, exclude up to 10 percent of the eligible voting population and the ID requirements fall hardest on people of color and young people, demographics that are seen to skew liberal.

Not to mention the state interest Posner was using as a balance, voter fraud, does not exist. You are more likely to find someone who has been struck by lightning or attacked by a swarm of bees than someone who has successfully impersonated another voter at the polls. Yet, this justification is used to disenfranchise millions of voters. The Crawford ruling not only opened the door to voter ID laws, it also helped advance the  myth of voter fraud, which voter suppression advocates still use to scare the public and justify overly restrictive measures on voting and voter registration.

It’s true that the political landscape has changed since 2005 but it doesn’t seem like too much to ask judges to be able to see the consequences of their rulings. The question now is what impact his remarks will have on future voter ID efforts. Will Posner’s admission that voter ID is used for voter suppression and not to fight against voter fraud carry any merit? I’d like to be an optimist, but I think his awakening is too little, too late.