The National Review Online is trying to push back on the mea culpa of a judge who now thinks strict voter ID does in fact impermissibly discriminate, maintaining its long-standing position as a supporter of election changes that have been widely denounced as blatant forms of voter suppression.
In 2007, well-known and respected conservative Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit upheld a voter ID law in Indiana that was the first in a wave of increasingly stricter restrictions on the right to vote passed by Republican-controlled legislatures. Affirmed by a splintered Supreme Court, as the sole high-profile legal decision on the sort of unnecessary and redundant voter ID laws that are now widely promoted by the GOP, Crawford v. Marion County Elections Board has been incessantly trumpeted by right-wing media as the legal underpinning for their obsession with election changes that are documented to suppress the vote.
Now that Posner has bluntly admitted he was wrong and the evidence shows that strict voter ID is "now widely regarded as a means of voter suppression rather than fraud prevention," NRO is resorting to smearing the judge's integrity and intelligence.
Legal contributor Hans von Spakovsky, the repeatedly discredited champion of photo voter ID laws as the alleged “solution” to the virtually non-existent “problem” of in-person voter fraud, responded to the news of Posner's recent admission by claiming the judge had “been taken in” by the “Left's well-oiled propaganda machine.” NRO's in-house legal expert, Ed Whelan, asserted that a switch in judgment by the judge was "weak" and praised a Washington Post columnist who attacked the judge as unethical for speaking publicly.
Von Spakovsky's attempt to rebut Posner's revelation by pointing to increased turnout in communities of color was a rehash of his continued failing of Statistics 101. As has been explained to von Spakovsky and others by statisticians, academics, and congressmen, just because more persons of color are voting now as the country grows more diverse doesn't mean that overly restrictive voting changes aren't suppressing the vote.
Not only is this confusing causation with correlation, but suppressing the vote also occurs when it becomes harder to do, not just when it is blocked entirely. The federal judge who blocked Texas' strict voter ID law because 600,000 to 800,000 citizens do not have easy access to the supporting documentation needed for the new identification requirements held that "a law that forces poorer citizens to choose between their wages and their franchise unquestionably denies or abridges their right to vote."
Whelan, on the other hand, praised an “excellent” October 21 column in The Washington Post that accused Posner of violating the Code of Conduct for United States Judges, which “discourages members of the bench from opining on the issues of the day. They may 'speak, write, lecture, and teach on both law-related and nonlegal subjects,' as long as that doesn't 'detract from the dignity of the judge's office' or 'reflect adversely on the judge's impartiality,' among other caveats.”
But asserting that judges cannot “opin[e] on the issues of the day” - such as the rash of voter suppression - not only ignores the reality of a judiciary that frequently speaks and writes in public forums, it also is an oversimplification of the intent of the Code.
Although it doesn't apply to Supreme Court justices, codes such as the one cited by the Post are generally understood to prohibit public comment on pending cases, not past cases. As Posner is unlikely to time travel back to 2007 and rule on an Indiana voter ID law as it related to voter suppression at that particular moment, the Code's application to his comments on a fact pattern long gone is arguably irrelevant.
Indeed, not only have legal experts consistently pointed out that right-wing media's citation of a specific 2007 state law is not precedent for current challenges to modern voter ID laws in different states, the Supreme Court justice who wrote the controlling decision in Crawford recently said the exact same thing. When informed of Posner's admission of error, retired Justice John Paul Stevens agreed that “actual history” had proven the dissent right. From The Wall Street Journal:
In an interview this week, Justice Stevens said he isn't “a fan of voter ID” and wasn't in 2008. But he said his opinion was correct because the challengers failed to present enough evidence showing the requirement suppressed poor and minority voters. “My opinion should not be taken as authority that voter-ID laws are always OK,” Justice Stevens said. “The decision in the case is state-specific and record-specific.”
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“I have always thought that David Souter [in his dissent] got the thing correct, but my own problem with the case was that I didn't think the record supported everything he said in his opinion,” said Justice Stevens, who retired in 2010. “He got a lot of stuff off the Internet and inferred things and so forth.” But “as a matter of actual history, he's dead right. The impact of the statute is much more serious” on poor, minority, disabled and elderly voters than evidence in the 2008 case demonstrated, he said.
In the end, the never-ending debunking of "The Fraudulent Fraud Squad" - whose legal rationale for strict voter ID laws is quickly vanishing - leaves the public with a simple question of whom and what to believe. As the late Judge Terence Evans observed in the Crawford dissent that both Posner and Stevens now credit, the answer to the question is simple:
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.
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Constricting the franchise in a democratic society, when efforts should be instead undertaken to expand it, is not the way to go.
The fig leaf of respectability providing the motive behind this law is that it is necessary to prevent voter fraud--a person showing up at the polls pretending to be someone else. But where is the evidence of that kind of voter fraud in this record? Voting fraud is a crime (punishable by up to 3 years in prison and a fine of up to $10,000 in Indiana) and, at oral argument, the defenders of this law candidly acknowledged that no one--in the history of Indiana--had ever been charged with violating that law. Nationwide, a preliminary report to the U.S. Election Assistance Commission has found little evidence of the type of polling-place fraud that photo ID laws seek to stop. If that's the case, where is the justification for this law? Is it wise to use a sledgehammer to hit either a real or imaginary fly on a glass coffee table? I think not.