Flagrant foul in federal appeals court

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In a split decision last week in Chicago's U.S. Court of Appeals for the Seventh Circuit, Judge Richard Posner OK'd Indiana's new law requiring voters to show photo IDs in all elections. The judges split 2-1, with Judge Terence Evans dissenting. Both opinions are brief and to the point if you want to read the whole thing (PDF).

The judges had to weigh which was more important: voter fraud perpetrated by people who show up and claim to be someone they're not (thus diluting the votes of legitimate voters), or the disenfranchisement of people who won't vote because it's a hassle to get up-to-date photo IDs.

Indiana's law would make sense if there'd been lots of outright voter fraud, but the state offered no such evidence. It would make no sense if the law discouraged many people from voting at all, but the plaintiffs offered no good evidence on that either. How did Posner deal with this situation?

First, he mocked and minimized the possiblity that the law might disenfranchise legitimate voters: "There is not a single plaintiff who intends not to vote because of the new law.... The motivation for the suit is simply that the law may require the Democratic Party and the other organizational plaintiffs to work harder to get every last one of their supporters to the polls."

But when he turned to the other side -- the failure to provide evidence of fraud that would make the new law necessary -- Posner made a series of excuses for the state. Never been any prosecutions for voter fraud? Well, it's hard to do. Not even any reports of fraud? Well, maybe everyone was looking the other way, and, um, there's fraud other states.

At this point he might have suggested that the motivation for the law was simply that Indiana's Republican legislators and Republican governor wanted to suppress turnout among likely Democrats. But, most uncharacteristically, he had nothing to say.

(Additional thoughts at Rick Hasen's Election Law. According to this newspaper account, the plaintiffs may request a rehearing before the entire court.)

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