Judges and Voter ID
If the state provides free IDs, is there really an “unjustified burden” on poor voters?


Hans A. von Spakovsky

To better understand the contrast between an activist, liberal judge who refuses to follow the law and a judge who understands that his job is to follow precedent and the Constitution, consider two recent federal cases on voter-ID laws.

On Tuesday, federal-district-court judge Lynn Adelman — a Clinton appointee, former Democratic state senator, and former Legal Aid Society lawyer — held that Wisconsin’s voter-ID requirement violates Section 2 of the Voting Rights Act, as well as the Fourteenth Amendment, because it places “an unjustified burden on the right to vote.”

This decision has gotten a great deal of attention in the mainstream press (or the drive-by media, as Rush Limbaugh likes to calls them).What got almost no attention was a decision by another federal district court in Tennessee on February 20 over that state’s voter-ID law. In that case, Judge Ronnie Greer upheld voter ID as constitutional.

The problem with Judge Adelman’s holding in Wisconsin is that the U.S. Supreme Court has already determined that voter-ID laws such as Wisconsin’s do not impose “an unjustified burden” on the right to vote. In 2008 in Crawford v. Marion County Election Board, the Supreme Court upheld the constitutionality of an ID law in Indiana that was even stricter than Wisconsin’s law.

In Crawford, the Supreme Court said that, since Indiana provided a free ID to anyone who didn’t already have one, “the inconvenience of making a trip to the BMV, gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.” And Wisconsin provides a free ID just as Indiana and Tennessee do.

But here is where the contrast between two styles of judging are manifest: Adelman claimed that Crawford was “not binding precedent” when it comes to applying the balancing test between a claimed injury to the right to vote and a state statute regulating elections, because the Supreme Court was supposedly “fragmented” on this issue.

Compare that to Judge Greer in Tennessee, who did what he is supposed to do as a federal trial-level judge — follow precedent and the holdings of the Supreme Court. As Judge Greer said, “Whether the plaintiff likes it or not, Crawford is the controlling legal precedent.”

While there were some minor differences between the Tennessee and Indiana statutes, Judge Greer concluded that they were “virtually identical”’ for the purpose of applying the Supreme Court’s finding in Crawford, because “none of the differences cited by plaintiff have any real constitutional significance.”

Judge Adelman summarily dismissed the rationales that Wisconsin put forward to justify its voter-ID law — the same rationales the Supreme Court concluded in Crawford were legitimate legislative concerns. These included preventing in-person voter-impersonation fraud, promoting public confidence in the integrity of the electoral process, deterring other types of voter fraud, and promoting orderly election administration and accurate record-keeping.

Adelman made much of the fact that there was a lack of evidence of impersonation fraud in Wisconsin and cited that as a reason for tossing out the statute. This also directly contradicts the Supreme Court’s ruling in Crawford. However, as Judge Greer pointed out in response to the plaintiffs’ argument that Tennessee must provide “empirical evidence of the existence of in-person voter impersonation fraud” before it could implement such a law, “the Crawford decision is dispositive on this issue in the context of an election law case.”

Even though Indiana presented no evidence of in-person voter-impersonation fraud actually occurring in the state, the Supreme Court found that “flagrant examples of such fraud in other parts of the country have been documented throughout this Nation’s history by respected historians and journalists,” and Indiana’s own experience with absentee-ballot fraud in a 2003 Democratic primary “demonstrates that . . . the risk of voter fraud [is] real [and] that it would affect the outcome of a close election.”

Greer said that the plaintiff’s “allegations of Tennessee’s lack of empirical evidence of in-person fraud or that requiring photo identification will reduce it are irrelevant.” As the Supreme Court concluded, “while the most effective method of preventing voter fraud may well be debatable, the propriety of doing so is perfectly clear.”

Perfectly clear to Judge Greer, but not to Judge Adelman, who, in essence, refused to accept the Supreme Court’s finding on all these issues and spent 90 pages trying to justify his defiance of binding Supreme Court precedent.


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