October 18, 2006
7th Circuit Hears Oral Argument Today on Challenge to Indiana Voter ID Law
Details at the Indiana Law Blog. Thanks to Robbin Stewart for the pointer.
This will be an important decision, because if the 7th Circuit reverses the district court decision, it would appear that the strong weight of the appellate courts is towards striking down the new wave of more restrictive voter i.d. laws. On the other hand, if the 7th Circuit affirms, this could be an issue that winds up before the U.S. Supreme Court.
Judge Posner (and the other two judges) asked a number of interesting questions regarding what the state can do to prevent impersonation fraud. There was a lot of focus on the lack of evidence of fraud to support the Indiana law, and a great deal of questioning about lack of evidence that many people were in fact being burdened by the law.
Judge Posner asked if anyone besides the poor was discriminated against by the law (there is an indigency exception and one for voters over 65, who can apply for absentee ballots). Some Judge Posner questions: "Do we know what percentage of eligible voters in Indiana do not have identification needed for voter i.d.?" "How would you ever catch an impersonator [without an i.d. requirement]?" The state relied heavily on the Carter-Baker commission's recommendations in defending its argument that fraud is a real problem.
Judge Posner said that the test is not whether this is a narrowly tailored law. There are voting rights on both sides of the case. The fraud dilutes the voting rights of those who vote legitimately. Challengers say the fraud problem is small, and state says burden is small. I think he is likely, though not certain, to vote to uphold the law, given what he sees as a lack of evidence on either side of either a great benefit or burden. Doubt goes to the state. It was unclear to me how the other judges were leaning.
There was a discussion of standing, and Judge Posner appeared concerned that none of the plaintiffs in the case lacked the documents required for i.d. In essence, he said: We are not convinced there is substantial disenfranchisement. It would be nice to find someone who does not have photo id, but I am not indigent. Why not plaintiff in that category? Why upset the law?
Judge Posner noted along the way it was unlikely there would be an opinion issued by the court before the election. Also (in a point that would interest appellate junkies, Judge Posner was unhappy the challengers split their oral argument time between two advocates making essentially the same argument.