Politics & Policy

Judges and Voter ID

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

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But here is where the contrast between two styles of judging are manifest: Adelman claimed that Crawford was “not binding precedent” when it comes to applying the balancing test between a claimed injury to the right to vote and a state statute regulating elections, because the Supreme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

It is also interesting to note that Adelman bases his erroneous conclusion that a voter-ID law will suppress the votes of minorities and the poor on the prediction of supposed “experts” such as a “statistical marketing consultant.” These are exactly the same types of hysterical predictions that were made eight years ago by “experts” in the unsuccessful federal lawsuits filed against voter-ID laws in Indiana and Georgia.

The evidence of what has actually happened in those states, which have had voter-ID laws in place since the 2008 election, shows that, contrary to Adelman’s conclusions, minority turnout was not suppressed by voter-ID requirements. Indeed, it went up after the voter-ID laws were implemented.

And, according to the U.S. Census, Wisconsin’s demographics are almost identical to Indiana’s. In fact, Indiana has a slightly larger black population (9.4 percent vs. 6.5 percent) as well as Hispanic population (6.3 percent vs. 6.2 percent) than Wisconsin. In Indiana, blacks outvoted whites by ten percentage points in the 2012 election. In Georgia, blacks outvoted whites by one percentage point. In Tennessee, whose voter-ID law was in place for the first time in the 2012 election, blacks outvoted whites by four percentage points, according to the Census report on turnout by race in every state.

It appears that Judge Adelman studiously ignored actual evidence of the effect of voter ID on the turnout of minority voters in other states. Instead, he relied on the speculations of “experts” — who made the same predictions as experts in other voter-ID cases who have been repeatedly proven wrong — to reach his conclusion that Wisconsin’s voter-ID law, even with a free ID available, will have a disparate impact on black and Latino voters because it will “impact low-income voters.” Not only is that factually unsupportable, but “low-income voters” are not even a protected class under Section 2 of the Voting Rights Act, which prohibits racial discrimination in voting.

Unlike Judge Adelman, Judge Greer properly concluded that the “Supreme Court’s ultimate holding in Crawford dooms plaintiff’s constitutional challenges.” It is true that Adelman also found a violation of Section 2 of the Voting Rights Act, which was not at issue in the Crawford case. But Adelman himself said that the “Section 2 analysis is largely identical to the unjustified-burden analysis” under the constitutional claim.

Since the Supreme Court had already decided that a voter-ID requirement is not an “unjustified” burden on voters, Adelman’s conclusion to the contrary under both Section 2 of the Voting Rights Act and the Constitution runs directly counter to the higher court that he is supposed to follow.

So we have two federal judges, one of whom followed Supreme Court precedent, and one of whom refused to do so. And whose opinion has gotten the most attention and is being praised by the New York Times and the liberal cognoscenti? Why, Judge Adelman’s, of course.

Adelman’s decision will be reviewed by the Seventh Circuit Court of Appeals — the very same court that upheld Indiana’s voter-ID law in 2007, before it went to the U.S. Supreme Court and was affirmed. We may hope that it will give his latest opinion the short shrift it deserves and overturn it so that the opponents of election integrity and common-sense reform do not prevail in Wisconsin.

― Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation. Along with John Fund, he is the co-author of Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk (Encounter, 2012) and the upcoming Obama’s Enforcer: Eric Holder’s Justice Department (Broadside, June 2014).


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