By Ernest A. Canning on 1/5/2015, 7:05am PT  

- with Brad Friedman

[An earlier version of this article was originally published by Truthout...]

Both election integrity advocates and dissembling GOP proponents of Photo ID voting restrictions were taken by surprise in late 2013 when 7th Circuit Court Judge Richard A. Posner said, during an interview with HuffPo Live, that the landmark 2008 Supreme Court decision on the matter "would have been decided differently" if the Court had known then "about the abuse of voter identification laws."

That, in and of itself, was a remarkable turn of events. What was ultimately to come was even more so.

Crawford v. Marion County Election Board is the case which Republican proponents of strict Photo ID voting laws now (incorrectly and often disingenuously) cite as giving them carte blanche to enact similar laws in other states, irrespective of the extent to which photo ID laws serve to disenfranchise demographic groups --- minorities, students, the poor, women --- that all tend to vote for Democrats.

Posner is not just any judge. He is a renowned legal scholar and Reagan appointee to the federal bench, who has served on the U.S. 7th Circuit Court of Appeal since 1981. More importantly here, Posner was the author of the 7th Circuit's opinion in Crawford. In that case, Posner rejected an allegation that Indiana's polling place photo ID restriction was unconstitutional. That decision was affirmed at the time by the U.S. Supreme Court.

Posner, who is, as Yale Law Professor Fred Shapiro notes, the most cited jurist of the 20th Century, was not alone in his view in 2013 year that Crawford "would have been decided differently" if the Court knew then what it knows now.

Former Supreme Court Justice John Paul Stevens, the author of the plurality opinion in Crawford --- an opinion that was joined by Chief Justice Roberts and Justice Kennedy --- told the Wall Street Journal following Posner's remarks at the time, that he "always thought that [dissenting Justice] David Souter got the thing correct, but my own problem with the case was that I didn't think the record [before the Court in 2008] supported everything he said in his opinion." Souter would have struck down the Indiana law as unconstitutional because, as he argued at the time, it "threatens to impose nontrivial burdens" upon the right to vote.

Joined by four other 7th Circuit jurists last October, Posner penned an extraordinarily powerful and compelling dissent [PDF] in Wisconsin's photo ID voting case. The previously missing evidence is now in, as the judge meticulously detailed in the opinion. GOP claims that photo ID restrictions are needed to combat "voter fraud", he wrote, are "a mere fig leaf for efforts to disenfranchise voters likely to vote for the political party that does not control the state government"...

There is only one motivation for imposing burdens on voting that are ostensibly designed to discourage voter-impersonation fraud, if there is no actual danger of such fraud, and that is to discourage voting by persons likely to vote against the party responsible for imposing the burdens.

Posner's carefully crafted dissent does more than establish why the U.S. Supreme Court should ultimately sustain the District Court's finding that Wisconsin's photo ID law is both unconstitutional and a violation of the Voting Rights Act --- a finding later echoed by a federal District Court in Texas as well. Posner's dissent obliterates the factual premise that had served as a pillar upon which his, and subsequently the Supreme Court's, decisions in Crawford were based.

Polling place photo ID laws do not promote voter confidence in the integrity of elections, as Posner and the Crawford Supreme Court plurality had erroneously assumed. The assertion that they do was a "mistake" --- Posner's mistake! --- and he now admits as much, with the support of devastating new data from recent studies to back him up.

His powerful dissent amounts to more than just a response to the Wisconsin GOP's new Photo ID voting law. It is an elegant plea that the U.S. Supreme Court finally right a grievous wrong that he was personally responsible for. Posner presents an astonishing, air-tight case for ruling that all "strict Photo ID laws," which, as he demonstrates, have only been enacted in states sporting GOP-controlled legislatures, must now be struck-down as unconstitutional...

Judicial masterpiece

On Oct. 6, 2014, with what proved to be a successful ACLU emergency petition against it pending before the Supreme Court, an all Republican 3-judge 7th Circuit panel saw fit to enter a judgment and an opinion they hoped would sway the Supremes to permit Wisconsin to immediately enforce a photo ID law that threatened to disenfranchise nearly ten percent of Wisconsin's duly registered voters during last November's election.

The opinion [PDF] supporting that "judgment" was authored by Judge Frank H. Easterbrook, a member of the radical right wing Robert Bork-founded, Koch Brothers-funded "Federalist Society".

The Easterbrook panel opinion was so extraordinarily partisan, factually deficient, riddled with errors and legally flawed that it caused the ordinarily staid U.C. Irvine election law Prof. Rick Hasen to tweet: "I rarely just rant in my blog posts. But Judge Easterbrook caused me to blow a gasket." He added soon thereafter, "I may have to go out for a run after the Easterbrook opinion on WI voter id. Or take a shower."

Posner, together with four of his 7th Circuit colleagues, were so troubled by the Easterbrook panel decision that they took the extraordinarily rare step of requesting an en banc rehearing before the full 7th Circuit on their own motion. While that motion was turned down by a 5 - 5 tie vote, it occasioned a Posner dissenting opinion that is nothing less than a judicial masterpiece.

Posner held up, dissected and and eviscerated each and every canard that had been proffered by the Easterbrook panel and other proponents of laws that impose polling place photo ID restrictions. With meticulous attention not only to the factual record that was developed in this case, but throughout the legal and academic communities during the 6 1/2 years since Crawford was decided, Posner forcefully proved that in-person voter impersonation --- the only type of voter fraud that can possibly be prevented by polling place photo ID restrictions --- is a non-existent threat. The record in Crawford, he noted, "contained no evidence of in-person voter impersonation...'actually occurring in Indiana at any time.'" An expert "who studied Wisconsin elections that took place in 2004, 2008, 2010 and 2012 found zero cases of in-person voter-impersonation fraud." Nationwide, this low reward (one single vote), high risk (a felony conviction) form of fraud is so extraordinarily rare that its occurrence is "more than a dozen times less likely than being struck by lighting."

As The BRAD BLOG has detailed at length previously, Posner also echoed the fact that Photo IDs are not required to board a plane, purchase prescription medication or buy a gun online or from a private seller at a flea market or gun show. "Since, despite the 9/11 attacks that killed thousands, a photo ID is not considered essential to airline safety," Posner sardonically added, "it seems beyond odd that it should be considered essential to electoral validity."

The legislatures in the nine (9) states that have adopted "strict photo ID laws" --- laws that condition the right to cast a vote upon the possession of a very narrow range of state-approved photo IDs --- are all controlled by the GOP. Only one of those states, Arkansas, has a Democratic governor, and he vetoed the measure, only to be overridden by the Republicans in the legislature. (Arkansas' version of the law was eventually found to be in violation of the state Constitution's "Right to Vote" clause by the state's Supreme Court and struck down in advance of the 2014 general election.)

A significant and sizable minority, Posner documents, do not possess the requisite forms of photo IDs to vote under these laws, not because they lack a desire to obtain them or to vote, but because of a "litany of obstacles" preventing voters who lack them from obtaining so-called "free" voting IDs from the state, as detailed by the District Court in Wisconsin after a full trial on the merits last year. Such obstacles include the time, expense and burdens of obtaining underlying documents needed to obtain those "free" IDs, such as birth certificates, passports and citizenship papers, the cost of which, even when adjusted for inflation, far exceeds the $1.50 poll tax that was struck down by the 24th Amendment in 1964.

For good measure, and perhaps a shot at Judge Easterbrook belittling such voters as too lazy to "scrounge up a birth certificate," Posner included an Appendix titled "Scrounging for your Birth Certificate in Wisconsin." It includes a dizzying 9-page form from the WI Department of Health and Family Services which one would need to fill out to attempt to receive a delayed birth registration for those who do not already have one, such as the tens of thousands of legally registered voters in Milwaukee County alone who were born out of state.

The undue burdens imposed by photo ID legislation falls most heavily upon demographic groups that historically vote for Democrats --- the poor, minorities, students and women, the latter of whom often have the greatest difficulty obtaining precursor documents like birth certificates that match their current married names.

No evidence Photo ID promotes public confidence in elections

Relying upon extensive academic studies and the District Court's factual findings, Posner noted that there was no evidence that polling place Photo ID laws promote public confidence in elections. Indeed, because there is no genuine threat of voter fraud, such laws, in Posner's newly enlightened view, are incapable of promoting public confidence.

Posner cited a Harvard Law Review study containing data that refutes the notion that photo ID laws promote public confidence. The study revealed that "perceptions of voter-impersonation fraud are unrelated to the strictness of a state's voter ID."

"The study also undermines the suggestion in the [7th Circuit] panel’s opinion (offered without supporting evidence) that requiring a photo ID in order to be allowed to vote increases voters’ confidence in the honesty of the election, and thus increases turnout," Posner writes. "If perceptions of the prevalence of voter impersonation fraud are unaffected by the strictness of a state’s photo ID laws, neither will confidence in the honesty of elections rise, for it would rise only if voters were persuaded that such laws reduce the incidence of such fraud."

The fact that large sectors of the public might actually believe that Photo ID laws are needed to prevent fraud in elections, merely reflects the fact that the public can be misinformed. Uninformed public opinion, as Posner's explains, is no justification for the mass disenfranchisement that is the product of polling place Photo ID laws.

The BRAD BLOG's decade-long coverage of the subject underscores why the temporary snapshot of a public opinion poll serves as an unreliable indicator that can be relied upon for the enactment of such laws, especially when public opinion can dramatically swing upon the acquisition of accurate information.

On July 2, 2012, for example, in covering an ACLU lawsuit that challenged, as deceptive, the provisions of a GOP-supported Photo ID ballot measure in Minnesota, we expressed the concern that the ACLU could prevail in the MN Supreme Court, yet fail in the court of public opinion. At the time, public opinion polls indicated that a whopping 80% of MN voters favored the enactment of polling place Photo ID restrictions.

We were wrong on both counts. Although the MN Supreme Court rejected the ACLU's legal challenge, four months after our initial coverage of the ACLU legal filing, as a result of the lawsuit and an ensuing public information campaign, MN citizens saw through the "voter fraud" lie. On Nov. 6, 2012, MN voters rejected the proposed Photo ID amendment to the state's constitution by a decisive margin of 54% to 46%. Facts --- and an informed electorate --- matter.

The real question is not whether photo ID laws promote public confidence. It is whether photo ID laws actually erode confidence?

This is one area where the ACLU plaintiffs, and others challenging similar laws in other states, can add to Posner's significant findings by citing a Pennsylvania state court decision. Commonwealth Judge Bernard L. McGinley struck down the Keystone State's photo ID law in early 2014 because, like in Arkansas, the law violated that state's constitution. McGinley expressly found (emphasis added) that "implementation of the Voter ID law in a manner that disenfranchises qualified electors will undermine the integrity of elections."

How can rigging an election by way of voter suppression create confidence on the part of the citizenry that electoral outcomes actually reflect the will of the majority? It can't, the Judge opined forcefully. In the state of Pennsylvania, where Republican House Leader Mike Turzai once boasted that the photo ID law would deliver PA to Mitt Romney during the 2012 Presidential Election, Republicans wisely dropped their attempt to enact Photo ID restrictions last year in the wake of McGinley's decision.

Separate is not equal

For 58 years, from 1896 to 1954, the factual assumption made by the U.S. Supreme Court in Plessy v. Ferguson --- "separate but equal" --- provided the legal lynchpin used to justify formal segregation within our public educational institutions. That form of de jure segregation came to an end in 1954 when the U.S. Supreme Court, in Brown vs. Board of Education, discovered that "separate" was "not equal."

Posner's recognition that he erred, in 2007, when he assumed that polling place Photo ID laws "promote public confidence" in the integrity of the electoral process, is strikingly similar to the Supreme Court's recognition in Brown that it had erred when it assumed, over a span of 58-years, that separate could be equal.

Just as "separate but equal" served as the lynchpin for segregation in public education throughout the South, "promote public confidence" has served as a lynchpin for the GOP's attempted reenactment of Jim Crow at the polls in states where Republicans have consciously sought to erect barriers designed to impede and exclude demographic groups inclined to vote against Republicans from exercising the franchise.

'Witch trials?'

"But 'glory' doesn't mean 'a nice knock-down argument,' said Alice.

"When I, use a word," Humpty Dumpty said in a rather scornful tone, "it means just what I choose it to mean --- neither more nor less."

"The question is," said Alice,"whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master --- that's all." - Lewis Carroll, Through the Looking Glass

The Alice in Wonderland quality of the unsupported and unsupportable partisan mumblings of the 7th Circuit's Easterbrook were summed up by Posner in a single, devastating paragraph [emphasis added]:

The panel is not troubled by the absence of evidence. It deems the supposed beneficial effect of photo ID requirements on public confidence in the electoral system "'a legislative fact'-a proposition about the state of the world," and asserts that "on matters of legislative fact, courts accept findings of legislatures and judges of lower courts must accept findings by the Supreme Court." In so saying, the panel conjures up a fact-free cocoon in which to lodge the federal judiciary. As there is no evidence that voter-impersonation is a problem, how can the fact that the legislature says it's a problem turn it into one? If the Wisconsin legislature says witches are a problem, shall Wisconsin courts be permitted to conduct witch trials? If the Supreme Court once thought that requiring photo identification increases public confidence in elections, and experience and academic study since shows that the Court was mistaken, do we do a favor to the Court --- do we increase public confidence in elections --- by making the mistake a premise of our decision?

Where Easterbrook would have "the lower courts...throw a cloak of infallibility around the factual errors of yore," Posner believes it is the duty of trial and intermediate appellate judges to call such mistakes to the attention of the Supreme Court, so that past mistakes can be rectified.

In this instance, since Posner was the author of that past mistake, he took it upon himself to personally do so. His dissent should be seen as nothing short of Posner's "Profile in Courage". Posner could have easily noted, as he does, that Wisconsin's photo ID statute was far more restrictive than Indiana's both as written and in its application. He could have simply affirmed that U.S. District Court Judge Lynn Adelman had correctly determined that, under the very test set forth in Crawford, Wisconsin's photo ID law was unconstitutional. He could have stopped there.

By stepping forward and revealing to the Supreme Court, and to all Americans, that he, Posner, had committed a grievous error in Crawford, the able jurist demonstrated that he places his commitment to the Constitution, to truth, to democracy and to the rule of law above both Party and the petty embarrassment that accompanies an acknowledgment of error. Posner revealed that he will readily admit a previous mistake in order to see that justice is achieved.

Would that all such jurists --- with the reflection of time and the emergence of additional hard facts --- work so hard and so thoroughly to right their past wrongs.

Undoubtedly, hard-right partisans in states like Wisconsin, Texas, Arkansas and North Carolina --- all states which will ultimately face Supreme Court rulings on the constitutionality of their recently enacted Photo ID restrictions --- will work very hard to either try and ignore or otherwise mischaracterize the devastating, independently verifiable opinion offered by Judge Posner. But there can be no mistake: While his dissent was written at the 7th Circuit in response to WI's Photo ID law, it is meant to send a loud and powerful message to the U.S. Supreme Court.

The only remaining question is: Will Posner's brethren on the Supreme Court be receptive to that powerful message once they finally rule on the constitutionality of such laws? If they are true to their own stated beliefs and precedents --- as expressed even in the Crawford case --- a majority of them will. That is, however, still a big "if", though it is an outcome that the Honorable Richard Posner has now made a distinct possibility through courage, conviction and a magnificent display of judicial craftsmanship.

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.

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