“[E]lections for political office at the state or federal level are never decided by just one vote.” Crawford v. Marion County Board of Elections (Posner, J.)
One vote actually can make a difference even in elections, however rarely but certainly in judicial decisions. So legal commentators naturally are making much of Judge Richard Posner’s belated apology for his pivotal vote in the seminal federal court decision seven years ago to uphold state voter photo ID laws.
“I plead guilty to having written the majority opinion (affirmed by the Supreme Court) upholding Indiana's requirement that prospective voters prove their identity with a photo ID a type of law now widely regarded as a means of voter suppression rather than of fraud prevention,” Posner writes in his new book, Reflections on Judging.
Posner’s confession of error, in the midst of the continuing debate over voter photo ID laws, would have earned him a gold star for candor but for his subsequent decision to deflect the blame to the lawyers in the case. The real blame, however, lies not with the lawyers and not even with Posner alone, but with the deferential stance that the Supreme Court itself has taken in reviewing laws that make it hard to vote.
Posner shifted the blame for his vote in an interview on HuffPost Live [Oct. 11] when he said the lawyers challenging the Indiana law failed to show that the photo ID requirement would actually disenfranchise people entitled to vote. “If the lawyers had provided us more information about the abuses,” Posner told interviewer Mike Sacks, “the case would have been decided differently.”
Understandably, the Washington lawyer who argued the case before the Supreme Court is taking exception to Posner’s blame-shifting. Paul Smith, a veteran of voting rights litigation and an experienced Supreme Court advocate, notes on the American Constitution Society’s blog that Indiana’s Republican secretary of state, the law’s chief sponsor, had acknowledged that the photo ID requirement would be “difficult” for many voters, including “elderly voters, indigent voters, voters with disabilities, first-time voters, [and] re-enfranchised ex-felons.”
The lawyers challenging the law also emphasized the political facts of life behind it. The law was enacted in 2005 just after Republicans had gained control of both chambers of the state legislature and the governorship. Every Republican legislator voted for it, and every Democratic lawmaker voted against it. Posner himself acknowledged in his opinion that the potential voters most likely to be burdened by the law were people “low on the economic ladder” and most likely to be Democratic voters.
Partisanship was also in evidence in the courts’ handling of the case. The district court judge who upheld the law was a Republican appointee, as are Posner and his Seventh Circuit colleague who joined in the decision. The Democratic appointee on the panel, the late Judge Terence Evans, dissented. “Let’s not beat around the bush,” Evans wrote. “The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by folks believed to skew Democratic.”
The partisan divide was muddied somewhat at the Supreme Court, as Justice John Paul Stevens joined with the Republican-appointed conservative bloc in 2008 in upholding the law. Writing for a plurality that also included Chief Justice John G. Roberts and Justice Anthony M. Kennedy, Stevens accepted the state’s purported justifications for the law, including preventing voter fraud, and found the law’s burdens not substantial enough to justify striking it down.
Stevens conceded that Indiana itself had shown no instances of in-person voter impersonation the only kind of voter fraud that a photo ID can prevent but claimed that history offered real-life examples. In the most recent instance cited by Stevens, however, an investigation in Washington State of 19 supposed “ghost” voters identified only one instance of in-person impersonation. For three liberal dissenters, Justice David H. Souter argued that the state’s “abstract interests” did not justify the “nontrivial burdens” imposed on would-be voters.
Voter ID laws are now on the books in 34 states and are surviving legal challenges, most recently in a unanimous decision by the Tennessee Supreme Court [Oct. 17]. The Roberts Court’s decision in June that freed southern states from the Voting Rights Act’s preclearance requirement has defanged the Obama administration’s challenges to such laws in South Carolina and Texas. The plurality in the Indiana case left the door open to future legal challenges, but none is likely to succeed unless judges gets serious about requiring states to justify laws that inevitably impede the ostensibly sacred right to vote.
The court’s precedents require states to show the precise interest to be served by any voting eligibility requirements and to weigh that interest against the resulting limitations on the right to vote. In his decision in the Indiana case, however, Posner was notably blasé about the limitations. Even “slight costs in time or bother or out-of-pocket expenses” may deter “many people” from voting, he wrote, but with no great concern. The benefits of voting to the individual voter,” Posner opined, “are elusive.”
The right to vote deserves better than that from Posner and, all the more, from the Supreme Court. “Every vote counts,” voters are regularly told on the eve of elections and so too every vote that is not counted because never cast. In future voting rights cases, the Supreme Court needs to try to make that slogan actual reality and not just a platitude.