Alex Constantine - October 21, 2014
Voter ID is “a mere fig leaf for efforts to disenfranchise voters likely to vote for the political party that does not control the state government,” federal appellate Judge Richard Posner wrote in a scorching dissent published October 10.
“As there is no evidence that voter-impersonation fraud is a problem, how can the fact that the Legislature says it’s a problem turn it into one" that could justify voter ID restrictions, Posner asked.
"If the Wisconsin Legislature says witches are a problem, shall Wisconsin courts be permitted to conduct witch trials?”
Judge Posner's dissent calling out voter ID as a means of voter suppression was issued just hours before Wisconsin's gubernatorial debate, where Governor Scott Walker effectively argued that the phantom menace of voter fraud justified the disenfranchisement of hundreds of thousands of Wisconsin voters.
Wisconsin's voter ID case has ping-ponged between the 7th Circuit and U.S. Supreme Court in recent weeks. Judge Posner -- who was named to the bench by President Ronald Reagan -- wrote in dissent from the 7th Circuit's 5-5 decision not to rehear an October 6 ruling upholding the law. The decision had little immediate effect, though, as it was issued one day after the U.S. Supreme Court blocked Wisconsin's voter ID restrictions for the November elections.
Motivation for Voter ID Is "to Discourage Voting"
In advance of the 2012 recall elections, Walker told the Weekly Standard that voter fraud amounts to "one or two points" in Wisconsin elections. Republican National Committee Chair Reince Priebus made a similar claim, alleging that Republican candidates in Wisconsin "need to do a point or two better than where we think we need to be, to overcome it."
For Priebus and Walker to be correct about fraud equaling "one or two points" in recent elections -- where 3 million people voted -- there would need to have been between 30,000 and 60,000 fraudulent ballots.
Yet when the state defended the voter ID law in federal court, it "could not point to a single instance of known voter impersonation occurring in Wisconsin at any time in the recent past," Judge Posner noted, although Wisconsin officials did not dispute that over 300,000 Wisconsin voters lacked the forms of ID required under the law.
During the first gubernatorial debate on October 10, Walker was asked about voter ID, and he cited an unauthorized and discredited 2008 report from an investigative unit of the Milwaukee Police Department that identified some voter irregularities during the 2004 elections -- yet nothing that would have been prevented by requiring ID at the polls. Walker declined to put a precise number on the amount of fraud in the state, but said:
"I was at a town hall meeting yesterday in Appleton, and took questions from the crowd, and one person asked me how many cases of fraud there have been in the state. I said, does not matter if it was one or a hundred or a thousand. I ask amongst us, who would be that one person who would want to have our vote canceled out by a vote cast illegally?"
On the same day as Walker's statements in the gubernatorial debate, Reagan appointee Posner noted specifically that "voter impersonation fraud is essentially nonexistent in Wisconsin," adding:
"There is only one motivation for imposing burdens on voting that are ostensibly designed to discourage voter impersonation fraud, if there is no actual danger of such fraud, and that is to discourage voting by persons likely to vote against the party responsible for imposing the burdens."
Wisconsin has consistently ranked among the best in the country for election performance, even without a strict ID requirement in place, according to Pew Charitable Trusts.
"The Effects of the Photo ID Requirement on Voter Suppression Are Likely to Be Much Greater in Wisconsin" than Indiana
Judges hearing constitutional challenges to voter ID restrictions have balanced the law's burdens on voters against the state's interest in preventing voter fraud. The question is how much weight should be given to each side of the scale.
In April, District Court Judge Lynn Adelman found that the the burdens imposed on the voting rights of nearly 300,000 Wisconsin citizens who lack ID are not outweighed by the state interest in stopping a statistically insignificant rate of "fraud." Stopping fraud can be a legitimate state interest, Adelman held, yet one that should be given little weight in Wisconsin, where repeated investigations by both Republicans and Democrats have shown that in-person voter impersonation fraud occurs at an infinitesimally low rate, if at all.
The three-judge 7th Circuit panel that recently reversed Adelman's decision disagreed, asserting that the U.S. Supreme Court's 2008 decision in Crawford v. Marion (which upheld Indiana's voter ID law) demands that the state's purported interest in preventing even a nonexistent threat of fraud amounts to a thumb on the scales.
Posner -- who authored the Crawford decision later upheld by the Supreme Court -- vehemently disagreed, writing that Crawford "does not resolve the present case, which involves a different statute and has a different record and arises against a background of a changed political culture in the United States."
The burdens on Wisconsin voters are more significant than those that faced Indiana voters in the Crawford case, Posner noted. Wisconsin's law is more restrictive than Indiana's, and would affect more people. Nine percent of Wisconsin voters (300,000 people) don't have ID, versus just one percent of Indiana voters in Crawford. Wisconsin has just 90 DMVs, only 30 are open during regular business hours, and only one open on Saturday; Indiana has 140 Bureaus of Motor Vehicles, and nearly all are open full time, many on the weekends.
"Hence the effects of the photo ID requirement on voter suppression are likely to be much greater in Wisconsin," Posner wrote.
“Some of the ‘Evidence’ of Voter-Impersonation Fraud Is Downright Goofy, If Not Paranoid”
The significant evidence of the Wisconsin law's burdens on voters requires that the court look more carefully at the state's claims about voter fraud than did the Supreme Court in Crawford. And, Posner noted, "there is compelling evidence that voter impersonation fraud is essentially nonexistent in Wisconsin."
“Some of the ‘evidence’ of voter-impersonation fraud is downright goofy, if not paranoid,” Posner wrote, “such as the nonexistent buses that according to the ‘True the Vote’ movement transport foreigners and reservation Indians to polling places.”
True the Vote, a Texas-based group that supports voter ID laws and hypes the voter fraud myth, worked with Wisconsin Tea Party groups during the recall elections to create an error-ridden online database of all recall petition signers, and to train poll watchers in tactics that voting rights advocates say bordered on intimidation.
The Bradley Foundation, whose president and CEO is Walker's campaign co-chair, funds True the Vote, including a $50,000 donation last year "to support a Wisconsin project."
Wisconsin's voter ID law remains blocked for November, although its ultimate fate in future elections remains uncertain. The U.S. Supreme Court blocked an order from a 7th Circuit panel reinstating the law for this year, but has yet to review the panel's full decision upholding the law on the merits.
The 7th Circuit has twice split 5-5 on whether to rehear Wisconsin's voter ID case. The court's eleventh seat has been vacant for more than four years, and the appointment of the judge that could have broken the tie has been blocked by Wisconsin Senator Ron Johnson, who himself has repeated the claims about "busloads" of voter fraud.
Brendan Fischer is CMD's General Counsel. He graduated with honors from the University of Wisconsin Law School. Prior to law school, Brendan served as a Peace Corps Volunteer in a rural community in Northeastern El Salvador.