by Paul M. Smith, Partner, Jenner & Block. Mr. Smith is a longtime Supreme Court practitioner and a member of the ACS Board.
As the lawyer who argued the constitutional challenge to the Indiana Voter ID law in the Supreme Court in 2008, I was both fascinated and pleased to hear that Judge Richard Posner – the author of the Seventh Circuit majority opinion affirmed by the Supreme Court in Crawford v. Marion County Elections Board – has now publicly stated that he was wrong. It is refreshing, if not unprecedented, for a jurist to admit error on such a major case.
I was a little less pleased to see that he attempted to excuse his error by blaming the parties for not providing sufficient information to the court. As he put it in an interview quoted in the New York Times, “We weren’t given the information that would enable that balance to be struck between preventing fraud and protecting voters’ rights.” Really? The information provided was enough for the late Judge Terence Evans, dissenting from Judge Posner’s decision, to say quite accurately: “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 folks believed to skew Democratic.”
That insight about the purpose of the law was supported by this information, all of which was provided to Judge Posner and the Seventh Circuit:
There had never been a single known incident of in-person voter impersonation fraud in the history of Indiana and there have been precious few nationally – yet the Indiana law targeted only in-person voting.
The law was passed immediately after Republicans took complete control of the legislature and governorship of the State of Indiana.
Every Republican legislator supported the law, while every Democratic legislator opposed it.
But what about the effects of the law? Well, Indiana Secretary of State Todd Rokita, the primary supporter of the bill, himself stated that there are certain “groups of voters for whom compliance with [the Voter ID law] may be difficult” because they are “registered voters who do not possess photo identification; who may have difficulty understanding what the new law requires of them; or who do not have the means necessary obtain photo identification.” As examples he mentioned “elderly voters, indigent voters, voters with disabilities, first-time voters, [and] re-enfranchised ex-felons.” Moreover, the district court had conservatively estimated that there were 43,000 voting-age Indianans without a state-issued driver’s license or identification card, and that nearly three-quarters of them were in Marion County, which includes Indianapolis. In other words, the persons most likely to be affected were poor and minority residents in the state’s largest city, who tended to vote Democratic and lived in a city that was trending Democratic.
Indeed, Judge Posner himself noted in his opinion, when explaining why the Democratic Party had standing to challenge the law: “No doubt most people who don’t have photo ID are low on the economic ladder and thus, if they do vote, are more likely to vote for Democratic than Republican candidates. Exit polls in the recent midterm elections show a strong negative correlation between income and voting Democratic, with the percentage voting Democratic rising from 45 percent for voters with an income of at least $200,000 to 67 percent for voters having an income below $15,000.” And by the time of the Seventh Circuit ruling, the facts also showed that following passage of the Voter ID law, voter turnout in Marion County in the 2006 midterm general election had fallen significantly, relative to turnout in the rest of the state, as compared to the 2002 midterm general election that preceded the passage of the Voter ID law. In 2002 Marion County turnout was only three percentage points lower than turnout in the rest of the state. In 2006, the gap rose to eight percentage points.
To be sure, the effects of putting a disparate burden on voting by some people and not others are difficult to measure precisely. But there was no real doubt that there would be some effects and there was no real doubt where those effects would be felt: with the Voter ID law in place, the electorate showing up on Election Day and successfully voting would be more Republican than without it. And in light of the lack of any evidence of in-person voter fraud in Indiana and little evidence of such fraud nationwide, there was no legitimate justification for this disparate burden. Thus, there was every reason to agree with Judge Evans that the legislative purpose was purely partisan and that the law’s effect would be to burden the right to vote of a specific portion of the electorate.
It is certainly true, as Judge Posner told the Times, that in 2007, competition between the parties had not yet “reached the peak of ferocity that it’s since achieved.” But the unfortunate approval of the Indiana law that the Seventh Circuit provided cannot fairly be blamed on how the case was litigated. As Judge Posner now recognizes, voter ID laws are “widely regarded as a means of voter suppression rather than of fraud prevention.” But Judge Posner’s dissenting colleagues recognized that all along. His was a case of judicial passivity in the face of a quite apparent affront to important constitutional values.