A judge comes to see the unfairness of voter ID laws

October 21, 2013 

The legal struggle over North Carolina’s changes in its voting laws is just beginning, but a federal judge who helped open the way to new voter ID requirements recently delivered his informal verdict: Voting ID laws are a form of “trickery” intended to suppress the vote.

That was the surprising admission made by U.S. District Judge Richard Posner in his new book and in a followup interview.

Posner was the author of a 2007 ruling from the U.S. Court of Appeals for the Seventh Circuit in Chicago that defended the constitutionality of Indiana’s voter ID laws. That ruling, upheld by the U.S. Supreme Court in 2008, provided the legal justification for a wave of new state laws requiring voters to provide a photo identification at the polls. It also emboldened states to press the restrictions further.

North Carolina did so this year by adding a narrow photo ID requirement. Student IDs and some other common forms of identification are not accepted. The law also cut back the days for early voting from 17 to 10 and eliminated same-day registration.

U.S. Attorney General Eric Holder and several advocacy groups, including the NAACP and the League of Women Voters, sued North Carolina over its voter ID law. Holder said the law’s restrictions disproportionately affect African-American voters to an extent that violates their civil rights.

Posner, who was appointed by President Reagan, now concurs. In his new book, “Reflections on Judging,” the judge writes, “I plead guilty to having written the majority opinion (affirmed by the Supreme Court) upholding Indiana’s requirement that prospective voters prove their identity with a photo ID – a law now widely regarded as a means of voter suppression rather than fraud prevention.”

In an interview with the Huffington Post, Posner elaborated, saying, “And the problem is that there hadn’t been that much activity with voter identification. [The Seventh Circuit judges] weren’t really given strong indications that requiring additional voter identification would actually disenfranchise people entitled to vote.”

Posner now says that the one dissenter on the three-judge panel was right. That judge, the late Terence T. Evans, said in his dissent:

“Let’s not beat around the bush: The Indiana voter photo ID law is a not-too- thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic.”

That is what has happened. Thirty-four states have passed various voter ID requirements, though some have been delayed by court challenges. The requirement means that the elderly, the poor and the young – those in demographic groups who may not have driver’s licenses – must spend time and money to obtain identification in order to exercise a fundamental right of citizenship.

That these groups tend to vote Democratic is not an accident. Republicans who are pushing the requirements claim they are only protecting the system against fraud, but there is virtually no evidence of such fraud.

On Monday, state officials responded to the advocacy groups’ lawsuit, denying the groups’ allegations of racial discrimination. A state response to the Department of Justice’s lawsuit is pending.

Gov. Pat McCrory has defended the changes as “common sense” safeguards that put North Carolina in the company of many other states. But many of these states have adopted or maintained such laws in part because of the legal opinion that Posner wrote and now disavows.

“There’s always been strong competition between the parties, but it hadn’t reached the peak of ferocity that it’s since achieved,” Posner said in the interview. “One wasn’t alert to this kind of trickery, even though it’s ages old in the democratic process.”

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