Politics & Policy

Right the First Time

Judge Richard Posner’s mistaken change of heart on voter ID

The Left’s well-oiled propaganda machine is in overdrive again. Partisan law professors and the liberal media are trumpeting Judge Richard Posner’s “admission” that he regrets the majority opinion he wrote upholding Indiana’s voter-ID law.

Posner wrote the opinion in 2007 for the Seventh Circuit Court of Appeals. It was affirmed the following year in a Supreme Court opinion penned by liberal justice John Paul Stevens.

What has the Left atingle now, however, is Posner’s new book, Reflections on Judging, in which he 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 said that he now thinks that the dissenting judge in his case was right and that “if the lawyers had provided us with a lot of information about the abuse of voter identification laws, this case would have been decided differently.”

Richard Posner is a well-known jurist and a prolific author. The question, however, is whether he made a mistake back in 2007 or whether he is making one now.

I vote for the latter. Posner apparently has been reading the press releases of voter-ID opponents like the Brennan Center and the NAACP Legal Defense Fund and mistaken them for “widely regarded” evidence that voter-ID laws are abusive.

In the Huffington Post interview, Posner said that the Seventh Circuit “did not have enough information.” This, he maintains, illustrates a basic problem: that as “judges and lawyers, we don’t know enough about the subject matters that we regulate.”

Well, if it’s factual information Judge Posner wants, let’s give it to him.

Keep in mind that the claim that voter-ID requirements amount to “voter suppression” hinges on the assertion that it prevents racial minorities from voting. But the turnout data from Indiana (and other states, like Georgia) since Posner’s 2007 opinion utterly refutes that claim.

Indiana’s law went into effect in 2006 because both the federal district court and the Seventh Circuit refused to issue an injunction against it. A study by Jeffrey Milyo of the University of Missouri showed that turnout increased by about two percentage points overall in the state in 2006 compared to 2002. There was no evidence that counties with higher percentages of minorities, poor, or elderly or a less-educated population suffered any reduction in voter turnout. In fact, according to Milyo, “the only consistent and statistically significant impact of photo ID in Indiana is to increase voter turnout in counties with a greater percentage of Democrats relative to other counties.”

In the 2008 election, turnout in the Democratic presidential-preference primary quadrupled from the 2004 (pre-voter-ID) election. In the 2008 general election, the turnout of Democratic voters increased by over eight percentage points from 2004 — the largest increase in Democratic turnout of any state in the nation. According to a Census Bureau survey, 59.2 percent of the black voting-age population voted in the 2008 election, compared to 53.8 percent in 2004, an increase of over five percentage points from a year when there was no ID law in effect.

Almost 1.75 million voters turned out for Indiana’s 2010 congressional elections — an increase of more than 77,000 over the 2006 election, according to a study by the Joint Center for Political and Economic Studies. The study noted a “large and impressive” increase in black turnout for 2010. Indeed, it reported that “the black share of the state vote was higher in 2010 than it was in 2008, a banner year for black turnout.”

This May, the Census Bureau released its latest survey on reported voting rates by race in the 2012 election. The voting rate of blacks in Indiana was 68.4 percent. The voting rate of whites was only 58.9 percent. Thus, the latest available evidence from Indiana shows that, with a strict photo-ID requirement in place, blacks voted at a rate almost 10 percentage points higher than that of whites.

In the original lawsuit against Indiana’s voter-ID law, the plaintiffs were unable to provide “a lot of information about the abuse of voter identification laws” simply because there is no evidence that these laws are being passed to suppress votes. That is vividly illustrated by what has happened with turnout since Posner upheld the state’s law.

Keep in mind that the original lawsuit was a facial challenge — i.e., it claimed the law was unconstitutional on its face. The fact that the Seventh Circuit (and the Supreme Court) found it constitutional did not bar a subsequent lawsuit challenging the law “as applied.” In other words, if the challengers could find some actual voters in the state who have been unable to vote because of the voter-ID law, they could sue again. It is quite telling that, after seven years of the law being in place, no successful “as applied” challenge has ever been made.

In 2007 Judge Posner declared that the Indiana law was a reasonable regulation intended to safeguard the integrity of the election process. He also observed that there was “something remarkable” about the fact that the challengers were unable to produce “a single plaintiff” who would be unable to vote because of the new law. Indiana’s actual experience with its voter-ID law over the last seven years shows that his assessment was correct.

What’s inconsistent with the facts is the view he holds today. Judge Posner appears to have been taken in by the “voter suppression” propaganda of voter-ID opponents. That’s a sad commentary on what passes for substantive debate in our society today. But it does prove the old adage that if you repeat a lie often enough, it becomes the “truth.”

— Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation and the co-author of Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk (Encounter Books 2012).

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