I am crashing on a number of deadlines before travelling, so I have only time for a brief reaction to the 7th Circuit’s opinion today on the merits rejecting the constitutional and Voting Rights Act section 2 challenges to Wisconsin’s voter id law.
1. The timing here is not coincidental. Justice Kagan has asked the state of Wisconsin to respond to an emergency motion filed by challengers who are trying to get a reversal of the same 7th Circuit panel’s interim order to use voter id in this election. Regardless of where you stand on the merits of the constitutional and voter id problem, it is unconscionable to roll out voter id without adequate time for everyone who wants to get id to do so. The 7th Circuit violated the rule from the Supreme Court’s Purcell v. Gonzalez case for courts not to change election rules just before the election. The state itself admits that up to 10 percent of eligible voters may lack id for this election. Today’s order seems timed to give more ammunition to Wisconsin to fight its case on the merits.
2. As a matter of substance, this is vintage Judge Easterbrook: crisp writing but heartless and dismissive. Judge Easterbrook picks out the evidence from the record he likes, and dismisses the evidence he does not like. The Ansolabehere and Persily study finding no relationship between voter id laws and public confidence is dismissed because it was not peer reviewed. This is some of the most careful work out there, and just because it was published in the Harvard Law Review Judge Easterbook decides to dismiss it out of hand. I believe that Professor Milyo, who is on the other side of these issues, also found no relationship between public confidence and voter id laws. On the other side of that is the Court’s statement about those relationships in the Crawford case. Judge Easterbrook takes that as some kind of established fact which cannot be rebutted by more evidence, despite our relative lack of experience back in the 2008 Crawford case with voter id laws.
3. The opinion puts forward the narrowest test yet I’ve seen for deciding when a vote denial type claim (which Easterbrook calls a voter qualification claim) violates section 2 of the Voting Rights Act. He cites statistics showing whites are much, more more likely than blacks in Milwaukee to have a driver’s license (the easiest form of voter id to use in WI if you have it). No big deal he says: black voting rates are high enough, and so long as “everyone has the same opportunity to get a qualifying voter ID” in Wisconsin there can be no voting rights violation. Never mind that because of past discrimination African-American voters are on average poorer and will have a harder time coming up with the money for the underlying documents for a voter id. The rich and poor can both sleep under bridges. To Easterbrook, one just “scrounges” the money to get the birth certificate—there is no sensitivity that not everyone is as rich as a federal judge.
4. The opinion is also full of things that make my blood boil, like the false claim that one needs a photo id to fly, or the false analogy that one needs an id to buy sudafed. To begin with, one does not need a photo id to fly. Also, getting sudafed is not a constitutional right, and in any case, WI pharmacists likely accept all kinds of ids that are not ok for voting (like a veterans id) to buy Sudafed.
5. What bothers me most is the dismissive tone. But it is unsurprising. The evidence on the stay motion was uncontradicted (and conceded by the state of Wisconsin) that out of state voters won’t have time to get the underlying documents they need in time for the next election. Such disenfranchisement is no big deal for Judge Easterbrook.