January 05, 2007

Initial Thoughts on the Seventh Circuit Indiana Voter Identification Decision

There has already been some very thoughtful commentary, particularly on the election law listserv, regarding this new 7th Circuit opinion by Judge Posner upholding Indiana's voter identification law over Judge Evans' dissent. I just want to throw out a few initial reflections here that I don't think have been aired yet:

1. In the face of little evidence of either voter fraud or voter burden, does resolution of this case turn on whether the judge is a Democrat or a Republican? Sorry to start off with such a cynical observation, but the two judges in the majority were appointed by Republican presidents while the dissenting judge was appointed by a Democratic president. I'm not making the point that these judges were making decisions based upon what would be best for the party they support; instead, I am arguing that in the face of a paucity of evidence, the judges may be swayed by beliefs that seem to correlate with those who are members of their party. Judge Posner's majority opinion, for example, goes out of its way both to minimize the extent to which this law is likely to burden voters and to suggest (without any real evidence) that there's a great deal of impersonation vote fraud going on out there that is not easily detected. Judge Evans, in dissent, is the mirror image. He's greatly bothered by what he sees as the potential for voters to be disenfranchised (pointing to some suggestive anecdotes), while dismissing concerns about vote fraud as unsupported by the evidence. It might have been better for Judge Posner to simply write that in cases where there is not much evidence of either burden or a problem, courts should give the benefit of the doubt to the states, at least until plaintiffs can show that more people are burdened by the law.

2. This case is unlikely to have too much influence on other voter identification cases. I don't see this case as having too much of an impact for two reasons. First, Indiana's law provides for the "indigency affidavit," which allows someone who is too poor to vote a way to avoid having to produce voter identification at the polls. This distinguishes the system from others, such as Georgia's system, that have been held to be akin to an unconstitutional poll tax. The Georgia system imposed costs on poor voters by both requiring them to produce supporting documentation to get the i.d. (such as a birth certificate, which costs money to procure) and to find transportation to the polling place. Second, plaintiffs in other states will now not follow the lead of the plaintiffs in Indiana in bringing just a facial challenge. They'll have to produce people who really are likely to be burdened in their right to vote by these laws.

3. Judge Posner's reasoning is especially sloppy, especially when it comes to the absentee ballot question. Judge Posner doesn't see a way that voter i.d. can work with absentee balloting, but of course there's an easy way that I've suggested to deal with the problem---require absentee voters to use a fingerprint on their ballot. More importantly, Judge Posner ignores the strong evidence that most of the documented cases of vote fraud comes from absentee ballots. A law purportedly aimed at voter fraud that ignores the biggest area of vote fraud is not rationally related (or narrowly tailored, depending upon the level of scrutiny) to any legitimate (or compelling) government interest.

4. Purcell continues to warp the debate. In this Slate column, I criticized the Supreme Court's recent per curiam opinion in Purcell v. Gonzalez as "sloppy empiricism that could unfairly derail other cases challenging state voter-identification laws...Presumably there are empirical answers to both of these questions: How extensive is voter fraud and how serious is the risk of voter disenfranchisement? But the Supreme Court's statement in Purcell instead confuses the empirical analysis at the heart of these cases by suggesting, without any proof whatsoever, that concerns about voter fraud '[drive] honest citizens out of the democratic process and [breed] distrust of our government.'" Judge Posner's opinion indeed relied upon Purcell's sloppy empiricism to reach its own sloppy conclusions.

To be clear, I'm not opposed to all voter i.d. laws. I've actually endorsed such laws, provided the government bears all the costs of producing the i.d.'s and distributes them as part of a universal voter registration process. But the partisan approach to voter id laws in state legislatures, now validated in the 2-1 Seventh Circuit opinion, is the wrong way to go.

Posted by Rick Hasen at January 5, 2007 03:19 PM