Federal Judge Strikes Down Wisconsin Voter ID Law

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From the Milwaukee Journal-Sentinel:

In a decision that could have implications nationally and in Wisconsin’s November elections, a federal judge on Tuesday struck down the state’s voter ID law, saying it violated the Voting Rights Act and the U.S. Constitution. [...]

“There is no way to determine exactly how many people Act 23 will prevent or deter from voting without considering the individual circumstances of each of the 300,000 plus citizens who lack an ID,” U.S. District Judge Lynn Adelman wrote in his 70-page ruling. “But no matter how imprecise my estimate may be, it is absolutely clear that Act 23 will prevent more legitimate votes from being cast than fraudulent votes.

Adelman, who is based in Milwaukee, found the state didn’t have an appropriate rationale for imposing a voter ID requirement. In-person voter impersonation — the only type of fraud a voter ID law can prevent — is nonexistent or virtually nonexistent in Wisconsin, he wrote.

“Because virtually no voter impersonation occurs in Wisconsin and it is exceedingly unlikely that voter impersonation will become a problem in Wisconsin in the foreseeable future, this particular state interest has very little weight,” he wrote.

The defendants could not point to a single instance of known voter impersonation occurring in Wisconsin at any time in the recent past.”

Adelman, a former Democratic state senator known for sponsoring the state’s open records law, determined that in practice the law requiring voters to show one of nine types of photo IDs at the polls established an unconstitutional burden on the right to vote. It also violated the federal Voting Rights Act because its effects hit Latinos and African-Americans harder than whites, he wrote.

Under the voter ID law, minorities “must pay the cost, in the form of time or bother or out-of-pocket expense, to obtain what is essentially a license to vote,” he wrote.

He issued an injunction barring the voter ID law from being enforced.

State Attorney General J.B. Van Hollen, who defended the law, immediately pledged to take the case to the 7th Circuit Court of Appeals in Chicago.

Of course, this will be appealed to the Seventh Circuit – where there is a one-in-three chance that one of the Judges on the panel will be Judge Posner – and then, possibly, the Supreme Court. So although this is very good news for today, it may be that Republicans will succeed in the long run in preventing real voters from voting in order to fight a nearly nonexistent problem.

Further reading:

Election Law Blog’s Rick Hasen’s quick reactions to the decision.
After federal judge’s decision, is Wisconsin’s Voter ID law in serious danger?
An A-to-Z guide to the ongoing voter ID fights in the states

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25 Responses to Federal Judge Strikes Down Wisconsin Voter ID Law

  1. 1
    nobody.really says:

    Of course, this will be appealed to the Seventh Circuit – where there is a one-in-three chance that one of the Judges on the panel will be Judge Posner….

    Yes, in his book Richard Posner “plead[s] 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 type of law now widely regarded as a means of voter suppression rather than of fraud prevention.” That is, Crawford v. Marion County Election Board, 472 F.3d 949 (7th Cir. 2007), affirmed, 553 U.S. 181 (2008).

    For what it’s worth, Posner now denies that he “recanted” that decision. Rather, he acknowledges that the decision has become notorious because it has been misconstrued as a statement about the Constitution, when it was merely a statement about evidence.

    The decision states that the court felt compelled to uphold the voter ID law simply because “the principal evidence on which the plaintiffs relied to show that many voters would be disfranchised was declared by the district judge to be ‘totally unreliable’ because of a number of methodological flaws; and we accept her finding.”

    And last October Posner re-emphasizes the very contingent nature of that decision:

    A recent article on the case … remarks: “The evidentiary gaps that proved decisive in Crawford were a product of the relative novelty of voter identification laws and the lack of mainstream scholarly and journalistic attention dedicated to its potential effects.” Precisely.

    Now the 7th Circuit will get a case in which the trial court found that the plaintiff’s data was rock solid. In short, we’ve got a whole new ballgame here!

    (For what it’s worth, Poser also goes on to say that he does not regard his comments as creating a basis for him to recuse himself from future cases on the matter. And, for what it’s worth, I’d concur.)

  2. 2
    JutGory says:

    [Nit-Pick Alert]

    Amp:

    Of course, this will be appealed to the Seventh Circuit – where there is a one-in-three chance that one of the Judges on the panel will be Judge Posner – and then, possibly, the Supreme Court.

    I came up with 30%, not one-in-three. [Updated to add: maybe it is 21.5%, if the Senior Status Judges are eligible to serve on the panel.] How did you figure?

    [Just trying to confirm whether I have any recollection of probability calculations from classes I took close to 20 years ago.]

    -Jut

  3. 3
    gin-and-whiskey says:

    I came up with 30%, not one-in-three…. How did you figure?

    One in three is common parlance for 33%. And 30% is pretty close to 33%.

  4. 4
    Ampersand says:

    I came up with 30%, not one-in-three…. How did you figure?

    I mistakenly thought there were nine judges on the 7th Circuit. But actually, there are ten, so you’re right. My bad!

  5. 5
    JutGory says:

    [Not a derail attempt]
    Crap!
    3 judges out of 10=30%. That’s pretty easy!

    I was trying to figure out the probability of his not being picked on a 3-judge panel. 9/10 on the first seat; 8/9 on the second; and 7/8 on the third, which, if you multiply those odds is 70% chance of not being picked (different % if senior status judges can also be picked)

    [double facepalm]

    -Jut

    -Jut

  6. 6
    RonF says:

    So, then, is the requirement to have a photo ID in order to buy a gun a suppression of my 2nd Amendment rights? The gun stores are open evenings and weekends but the places I can get an ID are not. I can’t get off of work (I ride my bike to work) to get an ID. And it’s too far to ride my bike to an office, anyway. That must mean that it’s unconstitutional to require me to have an ID to get a gun.

    It seems to me that a lot of the objections to the law are based on the difficulty or inconvenience of getting an ID and that they could be met by the State of Wisconsin by holding their offices open longer, having some rolling offices that would travel around the State and by ensuring that people could get an ID for free.

  7. 7
    Charles S says:

    No. The number of people who are legally forbidden from purchasing guns, but who would like to purchase guns is vast, and other than ID laws there is little to prevent them from doing so. Additionally, the expense of acquiring ID is small compared to the expense of acquiring a gun, so it is the beloved market which excludes very poor people from acquiring guns from licensed dealers, not the ID restriction. So (supposedly) legitimate state interest in restricting some large number of people from buying guns who would do so without ID laws trumps a tiny number of people who have the money for a gun but not for a state ID or replacement birth certificate.

    Also, you make upwards of $90k if I recall correctly, and probably have ID, so it sure as fuck doesn’t suppress your putative 2nd Amendment rights to buy all the sexy guns your heart desires. Suppression of rights is an actual thing that happens to actual people that has actual effects on the actual world, not some cute bullshit for you to waste time with.

  8. 8
    RonF says:

    “There is no way to determine exactly how many people Act 23 will prevent or deter from voting without considering the individual circumstances of each of the 300,000 plus citizens who lack an ID,” U.S. District Judge Lynn Adelman wrote in his 70-page ruling. “But no matter how imprecise my estimate may be, it is absolutely clear that Act 23 will prevent more legitimate votes from being cast than fraudulent votes.”

    Judge Adelman says that he can’t determine how many people who lack an ID will be deterred from voting, but it’s still clear that the act will prevent more legitimate votes from being cast than fraudulent ones. That’s bad math. You can’t tell if x > y if you can’t determine x. He also doesn’t know how big y is; absence of evidence is not evidence of absence. Bad math again.

    He’s finally also presuming that 300,000 people who don’t have an ID now will be 300,000 people who won’t have an ID on the second Tuesday of November. “Don’t have an ID” != “Can’t get an ID with current resources and documentation”, never mind “Can’t get an ID with a reasonable amount of effort.” The speculative barriers to getting an ID have to my knowledge not been shown to actually be stopping people who actually want and are trying to get IDs from doing so.

  9. 9
    Charles S says:

    RonF,

    Yes, if the state of WI provided very easy access to voting IDs (including easily accessed subsidies for replacement birth certificates), it might have reduced the burden sufficiently to make it commensurate with the harm ID laws are intended to prevent. But, recall that the harm prevented is something that basically doesn’t happen ever (and anyone dedicated to fake in person voting can just get fake ID, something poll workers are highly unlikely to be equipped to spot, so ID laws aren’t even likely to prevent the exceptionally rare event they supposedly target), so getting voting IDs would need to deter pretty much no one in the state of Wisconsin from voting to be justified on balance.

    Gun buying IDs would need to deter thousands of people from buying guns to be on balance unjustified. Some random hypothetical from you is not good evidence that they do so, so I think the courts will be unimpressed by your case.

  10. 10
    RonF says:

    I also like this:

    a type of law now widely regarded as a means of voter suppression rather than of fraud prevention.

    That may be true for people who listen to MSNBC and read The New York Times. If you listen to Fox News and read The Wall Street Journal you would likely have a different opinion – but I speculate that Judge Posner runs into few of the latter in his circle of friends and acquaintances on the Gold Coast of Chicago. What the purpose of a given law is regarded to be by a particular set of journalists and political advocates (but I repeat myself) should to me not have a lot of bearing on whether or not it is Constitutional.

  11. 11
    Charles S says:

    Yup, since we don’t know how many palm trees there are in Miami, we can’t say whether they are more or less than the number of unicorns in Miami.

  12. 12
    RonF says:

    But, recall that the harm prevented is something that basically doesn’t happen ever

    Again – absence of evidence is not evidence of absence.

    Some random hypothetical from you

    seem to me to match random speculations in the case being presented against voter ID.

    We know unicorns don’t exist. The concept that voter fraud doesn’t exist is on much shakier ground.

  13. 13
    Charles S says:

    I speculate that Judge Posner runs into few of the latter in his circle of friends and acquaintances on the Gold Coast of Chicago.

    Yes, you do appear to so speculate, with no basis whatsoever other than that it serves your ridiculous argument. Keep up the good work.

  14. 14
    Charles S says:

    “The concept that voter fraud doesn’t exist is on much shakier ground.”

    Jesus, RonF, we have discussed this 10 million fucking times. Voter ID laws do not prevent voter fraud. They do a little to prevent a very rare and ineffective form of voter fraud.

    Anyway, how do you know unicorns don’t exist given that absence of evidence isn’t evidence of absence?

  15. 15
    Ampersand says:

    Again – absence of evidence is not evidence of absence.

    Ron, if there are thousands of people using fake IDs to vote, why aren’t there thousands of legitimate voters arriving to vote and being told they’ve already voted? Or, alternatively, thousands of dead voters voting in person on election day?

    That aside, you need evidence that a harm is happening before you can justify harming voters to prevent it. It’s not our job to prove that it isn’t happening; it’s your job to prove that it is. Speculation alone is not a good enough reason to make it harder for people to vote.

  16. 16
    RonF says:

    so it sure as fuck doesn’t suppress your putative 2nd Amendment rights to buy all the sexy guns your heart desires.

    1) just because a law doesn’t suppress my rights doesn’t mean I don’t think it’s important, and
    2) “sexy” is not a word that I would use to describe a gun – but apparently it’s one that you use. What attributes of a gun do you find sexy? I would suggest you might want to contact a therapist on this fixation; especially if it is bringing oral sex to your mind.

  17. 17
    RonF says:

    Well, then, how do you know there’s more palm trees in Miami than there are unicorns?

  18. 18
    Ampersand says:

    Well, then, how do you know there’s more palm trees in Miami than there are unicorns?

    Charles, presumably, doesn’t subscribe to the argument from ignorance logical fallacy.

    Argument from ignorance infers that a proposition is true from the fact that it is not proven to be false (or alternatively, that a proposition is false because it is not proven to be true). The old argument that “the absence of evidence is not evidence of absence” is a form of this logical fallacy, because absence of evidence can be evidence of absence if substantial attempts to find evidence have proven negative.

    Charles can thus make the reasonable conclusion that since there is no evidence of even a single unicorn in Miami, while there is plenty of evidence of numerous palm trees in Miami, there are therefore more palm trees than unicorns in Miami.

    However, since you are subscribing to the evidence argument from ignorance fallacy, you can’t make that conclusion. So, again: since you say absence of evidence is not evidence of absence, how can you claim that unicorns don’t exist?

    (C.S. Lewis once caricatures the argument from ignorance fallacy as “the absence of smoke proves that the fire is very carefully hidden.”)

    (By the way, until just a few years ago, Richard Posner was one of the most prominent conservatives in the United States, and he says that he didn’t leave the Republican party, the Republican party left him. He is famous for bringing the ideas of the extremely conservative University of Chicago economics thinking into legal theory, and has lectured at Chicago for decades. He was appointed by Reagan, and most of his colleagues on the seventh circuit are either Reagan or Bush appointees. My point is that you seem to believe that Posner is some ivory-tower liberal who literally doesn’t know any conservatives or read conservative arguments; but anyone who actually knows who Posner is would find that claim impossible.)

  19. 19
    Charles S says:

    RonF,

    I was merely speculating on the source of your interest in guns. Baseless and insulting speculation can be great fun, as you appear to know. But perhaps we should both abandon that habit?

  20. 20
    Charles S says:

    Points though for a decent come-back to my insult. :)

  21. 21
    nobody.really says:

    The old argument that “the absence of evidence is not evidence of absence” is a form of this logical fallacy, because absence of evidence can be evidence of absence if substantial attempts to find evidence have proven negative.

    A semantic distinction: “Substantial attempts to find evidence, producing a negative result,” does not produce a lack of evidence; it produces evidence of 0. No one would say, “The Wild defeated the Avalanche, 4 to 3. Meanwhile the Blackhawks shut out the Blues with a final score of 4 to a lack of evidence.”

  22. 22
    Jake Squid says:

    Maybe not until now, nobody. But I’m doing that from now on.

  23. 23
    mythago says:

    As I think even RonF has acknowledged in the past, absentee voting is a much more likely source of voting fraud than no-picture-ID-required in-person voting. Funny how we don’t see contemporaneous efforts to ban the former.

  24. 24
    nobody.really says:

    No one would say, “…[T]he Blackhawks shut out the Blues with a final score of 4 to a lack of evidence.”

    Maybe not until now, nobody. But I’m doing that from now on.

    Really? You’d do that for me? Gosh, I didn’t even think you knew my name, and now — this! I don’t know what to say.

    I’ve never confessed this to anyone before, but in my eyes, you’re godlike. Honest! I’m just a nobody, really, but you’re a total lack of evidence. How much more godlike could anyone be?

  25. 25
    hf says:

    Again – absence of evidence is not evidence of absence.

    Yes it is. This is very basic math (on par with the use of inequalities).