7th Circuit Panel Upholds Indiana's Voter ID Law

In a 2-1 decision, a 7th Circuit Court of Appeals panel upheld the constitutionality of Indiana's Voter ID law. Judge Richard Posner, writing for the majority, conceded the law "will deter some people from voting", but he balanced that against his conclusion that "a great many people who are eligible to vote don't bother to do so" because "the benefits of voting to the individual voter are elusive" and "even very slight costs in time or bother or out-of-pocket expense deter many people from voting." Posner also matter-of-factly observed that "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."

While Posner conceded the plaintiffs in the case had standing to sue, he was moved to comment on the fact that none of them were deterred from voting because of the photo ID requirement, and that impacted the merits of their case in his judgment. He bluntly said of the plaintiffs, "No doubt there are at least a few such people in Indiana, but the inability of the sponsors of this litigation to find any such person to join as a plaintiff suggests that the motivation for the suit is simply that the law may require the Democratic Party and the other organizational plaintiffs to work harder to get every last one of their supporters to the polls." That's harsh.

Posner rejected the strict scrutiny analysis urged by the plaintiffs. A strict standard is inappropriate in this case because "the right to vote is on both sides of the ledger." "The purpose of the Indiana law is to reduce voting fraud, and voting fraud impairs the right of legitimate voters to vote by diluting their votes—dilution being recognized to be an impairment of the right to vote," Posner explains. On the other side of the case is the effect of requiring a photo ID. "That effect, so far as the record reveals, is slight," Posner concluded. He continued, "To deem ordinary and widespread burdens like these severe would subject virtually every electoral regulation to strict scrutiny, hamper the ability of States to run efficient and equitable elections, and compel federal courts to rewrite state electoral codes . . . The Constitution does not require that result . . . " While conceding "the Indiana law can be improved", Posner asked, "[W]hat can't be?"

In a dissenting opinion, Judge Terence Evans sharply disagreed with Posner. "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. "We should subject this law to strict scrutiny." Evans laments that voter participation in elections has been sliding for many years. "With that being the case, one would think states should be looking for creative ways (like allowing people to vote at places they frequent and are familiar with, like shopping malls rather than basements of fire stations) to increase voter participation, he wrote. "Yet, the Indiana law we sanction today does just the opposite. Constricting the franchise in a democratic society, when efforts should be instead undertaken to expand it, is not the way to go."

Judge Posner, a Reagan appointee to the bench, was joined in his opinion by Judge Diane Sykes, who was appointed by President G.W. Bush. Judge Evans was appointed to the bench by President Clinton. It's unfortunate that these political cases so often are decided along the party-line affiliation of the judges. The plaintiffs could still ask for review of the decision by the full court, which I suspect they will do. Hat tip to the Indiana Law Blog for catching this decision.