One judge of the 7th Circuit, Richard Posner, took advantage of one of the rules of the court. Without the request of either parties of this particular case he asked for an en banc hearing by the full 7th Circuit. Ten judges voted whether that hearing should be granted. The vote was tied at 5-5, which meant the hearing was denied. Judge Posner wrote a dissent of that denial (copy through this link). His four voting partners signed on.
That dissent, like the one Posner wrote to overturn the same-sex marriage ban, eviscerates the claims the GOP made when they passed the voter ID law and stomps all over the opinions of the judges who voted to not hear the case.
The dissent doesn't do anything at the moment. The law still stands and is still stayed until the November election is over. But this document is important for two big reasons. First, Posner approved Indiana's voter ID law in 2008, which went on to be confirmed by the Supremes. Yes, he changed his mind about voter ID laws and did so based on more evidence. Second, Posner handed those pushing for wide voter access a comprehensive rebuttal that can be used when this case goes to the Supremes. And the Supremes know to read rulings from Posner very carefully.
I read through the 30 pages of the ruling. Here is my summary of the arguments:
Wisconsin's law is much more severe than Indiana's. The types of IDs permitted form a smaller list. The documentation required to get an ID is greater. The list of those who can vote without an ID is shorter. The number of citizens without an ID is much larger, and many who don't have an ID also don't have the backup documentation. The length of time to come up with an ID when challenged at the polling place is much shorter – 3 days instead of 10.
Those who favor the voter ID law say there aren't that many people who tried to vote and were turned away. Posner says that didn't count those who wanted to vote, but decided the obstacles were insurmountable and didn't bother trying.
The district court listed some of those obstacles: It is difficult (especially for a poor person) to find what the required documents are. To get to the DMV one must go during business hours and claim a vacation day or suffer lost wages to do so. If one doesn't have a license one must, of course, rely on the vagaries of public transport and pay for that cost. If any of the underlying documents are not at hand the whole business of lost wages and transport costs is repeated to find and deal with each gov't agency. If those original documents, such as a birth certificate, must be obtained from another state, it may take weeks for the document to arrive. If there is a discrepancy between any of the documents then more time off work and more transport costs will be needed to straighten out the mess. Those who, because of poverty, race, or language (all categories not likely to vote GOP), are uncomfortable dealing with gov't officials are less likely to endure the process of getting documents.
Expenses for fees, travel, and lost work can be about $75 to $175, far greater (even adjusted for inflation) than the $1.50 poll tax outlawed in 1964.
Several citizens testified to the difficulty of getting a birth certificate, especially if they are elderly. What to do if the state of birth lost the certificate? What if the birth wasn't properly registered? The last 10 pages of the ruling are copies of forms that might be needed to request, and perhaps find, a birth certificate.
Proponents say 22% of eligible voters don't register (which doesn't require ID). They must not want to vote. Fine. But not wanting to vote does not describe the 9% of registered voters without ID.
There are several types of vote fraud: voter impersonation, electorate manipulation (gerrymandering and laws that prevent voting), voter intimidation, vote buying, misinformation (advertising the wrong election day or polling place), misleading ballots (see Florida in 2000), ballot stuffing, misrecording of votes, misuse of proxy votes, destruction of ballots, tampering with voting machines (which is why my city has us vote on paper, which is tallied by machine). The voter ID law deals only with voter impersonation (and it seems to me the GOP is actively engaging in many of the other types of fraud).
The evidence of voter impersonation fraud is extremely rare. The effect of a voter ID law means a large number of people who will probably vote Democratic are discouraged from voting. This is Posner's basic point.
Requiring a voter ID is supposed to prevent non-citizens from voting. Nope. Non-citizens are given drivers licenses too. That puts a big hole in the effectiveness of preventing voter impersonation.
Posner goes through the list of states who have enacted voter ID laws. Those with the strictest laws have the GOP in control of the state House and Senate and all but one have a GOP governor. Most of the other states with such laws are also controlled by the GOP.
Evidence of voter impersonation fraud "is downright goofy, if not paranoid" and rarely exists. Even Fox News says there isn't much evidence. A journalism consortium found only 10 cases since 2000 out of 146 million voters. One is a dozen times more likely to be struck by lightning.
The incentive for someone to engage in voter impersonation fraud is low (the incentive to vote, never mind impersonate, is low – see stats on voter turnout), so even a modest penalty strongly discourages the crime. Only a massive campaign will sway most elections and those are too risky for politicians considering the costs of bribes to make it worthwhile for voters.
Proponents of the law say getting a photo ID is no big deal because one is needed to fly, pick up a prescription, open a bank account, buy a gun, or enter a courthouse. Some courthouses do require ID, but the Supreme Court building does not. As for the others, not true (besides, poor people don't fly). But in the same paragraph is the claim that an ID is easy to get and that 300,000 registered voters in Wisconsin don't have one. So, they are lazy?
Voter ID laws don't increase the confidence of an election leading to increased turnout. That would only happen if voters believe the law actually reduces fraud. A state with a law that reduces fraud implies that in states without the law fraud is rampant – or there is some unusual compulsion in Wisconsin.
The panel of proponent judges are not bothered by an absence of evidence. It appears to be enough that the legislation says there is a problem. "In so saying, the panel conjures up a fact-free cocoon in which to lodge the federal judiciary. … If the Wisconsin legislature says witches are a problem, shall Wisconsin courts be permitted to conduct witch trials?"
The conclusion:
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.
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