I have written this new piece for The Daily Beast. A snippet:
But I for one am glad Judge Posner spoke up candidly. Supporters of voter ID laws point to Crawford all the time as having settled the issue of voter ID laws’ constitutionality and desirability, and all the new discussion calls Crawford into rhetorical (although not legal) doubt. The really interesting question is: why did Judge Posner change his mind?
It’s not because of new evidence that voter identification laws have disenfranchised thousands of voters. In fact, opposing sides of the issue are still clinging to the same flawed arguments as they were when Crawford was adjudicated. Supporters of voter identification laws have still not come forward with any significant evidence of modern, conspiratorial voter impersonation fraud. Justice Stevens’ opinion literally had to go back to the 1860s and Boss Tweed, plus a possible single case of impersonation fraud in a 2004 Washington State election. On the other hand, opponents of voter identification laws have had a hard time finding real live voters who (1) lack ID; (2) would have trouble getting the ID; and (3) want to vote. This was one of the problems that the judges had in Crawford: where were the Indiana voters who were disenfranchised? It seems that there were far fewer of them than Democrats alleged. As Ethan Bronner of the New York Times put it to the newspaper’s Public Editor, quoting Jorge Luis Borges on the Falklands War, “It’s a fight between two bald men over a comb.”
However, since 2007, the voter ID issue has changed in two significant ways—though neither change is that better lawyers are handling the cases.