Sep 15, 2014

Judge Frank Easterbrook Disappoints

Judge Frank Easterbrook (of the U.S. Court of Appeals for the Seventh Circuit) shamed himself.

Easterbrook is on the three-judge panel that ordered the reinstatement of Wisconsin Act 23, the photo voter ID law.

I expect this type of action in the Judiciary from the likes of Diane Sykes (one of Easterbrook's colleague on the panel), or from a decision in the Fifth or 11th circuits in the south.

Not from Easterbrook, who it appears did not give the panel's order much thought, staying the injunction 53 days out from Election Day without any stated concern.

"The record says virtually nothing about the difficulties faced by either indigent voters or voters with religious objections to being photographed. While one elderly man stated that he did not have the money to pay for a birth certificate, when asked if he did not have the money or did not wish to spend it, he replied, “both.” App. 211–212. From this limited evidence we do not know the magnitude of the impact SEA 483 will have on indigent voters in Indiana. The record does contain the affidavit of one homeless woman who has a copy of her birth certificate, but was denied a photo identification card because she did not have an address. Id., at 67. But that single affidavit gives no indication of how common the problem is." - (Justice Stevens opinion announcing the judgment of the Court and delivering an opinion in which The Chief Justice and Justice Kennedy in WILLIAM CRAWFORD, et al., PETITIONERS v. MARION COUNTY ELECTION BOARD et al (2008))

Compare this dearth of social scientific evidence in Crawford with the mountain of evidence presented in Frank v. Walker, (Case 11cv1128) and League of United Latin American Citizens of Wisconsin v. Deininger (Case 2:12-cv-00185).

What is Easterbrook thinking?

Yes, a plurality of three justices joined the opinion of the Court in Crawford in 2008 in which no trial took place.

So that's it forever? Crawford can never be overturned or altered; no matter what or how much evidence or argument is presented in federal court demonstrating its effect on real people whom Easterbrook seems to forget are these beings with emanating rights?

Consider: Footnote 6 from Crawford: "In other words, an estimated 99% of Indiana’s voting age population already possesses the necessary photo identification to vote under the requirements of SEA 483.” 458 F. Supp. 2d, at 807. Given the availability of free photo identification and greater public awareness of the new statutory requirement, presumably that percentage has increased since SEA 483 was enacted and will continue to increase in the future."

Some 10 per cent are estimated in Wisconsin to lack the proper ID. That extra nine in Wisconsin as opposed to Indiana was found at trial to compose some 300,000 voters.

So, Wisconsin has had since Monday opportunity for greater public awareness of the new statutory requirement to vote, and the some 300,000 Wisconsin citizens who are eligible to vote but don't have a GOP-approved ID.

No substantive problem for Easterbrook.

But consider this from Easterbrook and his two colleagues order last week: "It [U.S. District Judge Lynn Adelman] did this [issued a permanent injunction] based on findings that it thought showed that Wisconsin did not need this law to promote an important governmental interest, and that persons of lower income (disproportionately minorities) are less likely to have driver’s licenses, other acceptable photo ID, or the birth certificates needed to obtain them, which led the court to hold that the statute violates §2 of the Voting Rights Act, 42 U.S.C. §1973." 


The panel misstates Judge Adelman's ruling in this strange formulation: "Wisconsin did not need this law to promote an important governmental interest." Adelman is not in the legislating business.

This did-not-need-this-law sentence is amateur stuff, and surely was not written by Easterbrook.

What Adelman did find is that no state interest was served by Wisconsin Act 23's mandate to present a photo ID as a condition to vote to stop in-person voter fraud, a crime which even the State of Wisconsin admitted it could not produce even one instance of ever occurring.

In fact, Adelman's opinion, as a good opinion should, well considers the State's justifications for Act 23, and takes them apart.

"Wisconsin Republicans ... four justifications for the Photo ID restriction: "(1) detecting and preventing in-person voter-impersonation fraud; (2) promoting public confidence in the integrity of the electoral process; (3) detecting and deterring 'other types of voter fraud;' and 4) promoting orderly election administration and accurate recordkeeping." (Canning, The Brad Blog)

Against this Adelman found as fact that potentially some 300,000 Wisconsin voters lack the restrictive form of ID.

Adelman proceeded to use the balancing test, the Anderson/Burdick test, that six members of the Crawford Court said is appropriate essentially finding that ZERO voter in-person voter fraud against some 300,000 weighs towards the 300,000.

I recommend Easterbrook read Ernest A. Canning's work on this matter, and maybe have a chat with Judge Richard Posner.

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