presents what seems to be a straightforward and even unremarkable question: Does a state requirement that voters show a specific kind of photo identification before casting a ballot violate the Constitution?Posner's dismissive attitude toward the burden of requiring a photo ID in order to vote - apparently, in his world, flying is an everyday experience - was also directed against the right to vote itself:
The answer so far has depended greatly on whether you are a Democratic or Republican politician - or even, some believe, judge.
"It is exceedingly difficult to maneuver in today's America without a photo ID (try flying, or even entering a tall building such as the courthouse in which we sit, without one)," Circuit Judge Richard A. Posner, a Ronald Reagan appointee, wrote in deciding that Indiana's strictest-in-the-nation law is not burdensome enough to violate constitutional protections.
His colleague on the U.S. Court of Appeals for the 7th Circuit, Bill Clinton appointee Terence T. Evans, was equally frank in dissent. "Let's not beat around the bush: The Indiana voter photo ID law is a not-too-thinly veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic," Evans wrote.
Posner's majority opinion said that the "benefits of voting to the individual voter are elusive" because major elections "are never decided by just one vote."Get that? As far as Posner is concerned, your very right to vote is an "elusive benefit" of little value so if you get blocked from voting, so what? BFD, y'know? By that logic, if a candidate wins a two-way election by, say, 10,000 votes, then 9,999 voters have engaged in a pointless waste of time that served no benefit. And while it's true that major elections have never been, as far as I know, decided by just one vote (although we have :cough: Florida come close :cough: Washington), minor elections, local elections, primaries, have been. Does the importance of your right to vote decline as you go further down the ballot? It seems that according to Richard Posner, it does.
He said there is a deferential scale the court should follow in evaluating voting requirements. "The fewer people harmed by a law, the less total harm there is to balance against whatever benefits the law might confer," he wrote.
Even beyond that, there is the simple fact that every individual vote is as important as every other individual vote in the final tally. That's one of the real powers of, part of the real significance of the idea of, voting. And no candidate gets their votes as one single block, they get them as a combination of single, individual votes, each of which has an "elusive" value to the voter. (I had a bit more to say about this a while back as part of a longer argument.)
Even taken on its own merits, Posner's argument fails. Indiana's law was passed by the GOPper-dominated legislature in 2005 - even though the state had never prosecuted a single case of voter impersonation. The "benefits" Posner was claiming for the law, i.e., cutting down a certain type of supposed voter fraud, do not exist because the problem itself does not exist.
"Is it wise to use a sledgehammer to hit either a real or imaginary fly on a glass coffee table?" [Judge] Evans wrote. "I think not."Bizarrely, Indiana Secretary of State Todd Rokita, in the face of that undenialble fact, argued "Why should we wait until we become victims of identity theft, which is what this is?" Which clearly is an admission that the law accomplishes precisely zilch, rights no wrong, corrects no imbalance; it's a solution in search of a problem, an effect in search of a cause, an end in seach of a means - or, more truthfully, a means to an end, one so obvious even Posner had to acknowledge it: "No doubt most people who don't have photo ID are low on the economic ladder and thus, if they do vote, are more likely to vote for Democratic than Republican candidates."
He knows. But he just doesn't give a damn.
It remains to be seen if SCOTUS gives a damn. Considering this is at least as reactionary a crew as the one that ignored precedent (which held that state courts make the rulings about voting issues and procedures within their states) and logic (declaring the issue to be one of the risk of "irreparable damage" to George Bush) in order to stop the 2000 Florida recount and install Shrub as El Leader while gutlessly dodging responsibility by declaring that the decision was not to be cited as precedent, I have little faith and even less hope.
Voting, like everything else, is becoming a privilege of the privileged.
Footnote One: Just who is Richard A. Posner? He's a federal judge, yeah, but what does he believe beyond the inanity noted above?
Well, he denies there is a Constitutional right to privacy and argues that the means of protecting privacy are economically inefficient. The first part is bad enough, but economic efficiency? Is that something that should be of concern to the courts?
Apparently yes, because he also endorses so-called "efficient breach theory," the notion that a party should be allowed to breach a contract and pay damages, if doing so would be more "economically efficient" than carrying out the contract. So if I have a contract with you to provide some good or service and someone else comes along and offers me more, I should be free to ditch you except to pay you damages to make up for what you lost by my being a money-hungry creep. As long as I expect my profit from the new deal to exceed the damages I must pay you, I not only should be free to dump you, I should be encouraged to do so by exempting me from any punitive damages. That is, Posner believes that I should be free to say "screw you" if it makes me profit. Nice guy.
Even nicer: About a year and a-half ago, Glenn Greenwald wrote that
Court of Appeals Judge Richard Posner has become one of the leading advocates of drastically expanded federal police powers as a response to the terrorist threat. He advocates the creation of a domestic spy agency (an internal CIA/KGB/Stassi-type agency to monitor domestic activities); expanding the group of citizens subjected to warrantless eavesdropping to include even include "[i]nnocent people, such as unwitting neighbors of terrorists"; allowing warrantless eavesdropping even if it violates the law; and stripping federal courts of their ability to enforce legal limits on the President's national security powers.Indeed, in December 2005, Poser wrote in the Washington Post of the illegal domestic spying by NSA and the Pentagon and the establishment of data-mining programs. Was he at all troubled? No way:
These programs are criticized as grave threats to civil liberties. They are not. Their significance is in flagging the existence of gaps in our defenses against terrorism.In the same column, he described FISA as "too restrictive."
But give him his due, he's no Johnny-come-lately jackass. In the September 2002 issue of The New Republic, he used the hoary "ticking bomb" scenario to endorse torture:
If torture is the only means of obtaining the information necessary to prevent the detonation of a nuclear bomb in Times Square [he wrote], torture should be used — and will be used — to obtain the information. ... no one who doubts that this is the case should be in a position of responsibility.So I guess, at the end of the day, dismissing the right to vote as an "elusive" benefit isn't that long a jump.
Footnote Two: The Brennan Center for Justice at the NYU School of Law has coverage and commentary about the Indiana law case and the amicus curiae brief it filed in opposition to the law, along with a commentary (in .pdf format) about the bogus nature of the "voter fraud" claims made by Indiana and its allies. It has also published an important study (also in .pdf format) in this regard called "The Truth About Voter Fraud," which asserts "by any measure, voter fraud is extraordinarily rare."
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