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7th Circuit won't rehear voter ID case; Posner dissent cites 'goofy, if not paranoid' fraud evidence

The fight over Wisconsin’s voter ID law has ricocheted back to the Chicago-based 7th U.S. Circuit Court of Appeals, which refused on Friday to grant en banc review of an Oct. 6 panel decision upholding the law.

Judge Richard Posner called the refusal to rehear the case on the merits “a serious mistake” in a dissent (PDF) joined by four other judges, report the National Law Journal, the Election Law Blog and the Milwaukee Journal Sentinel. Despite the 7th Circuit’s refusal to rehear the case, the voter ID law is currently blocked from taking effect because of a U.S. Supreme Court order Thursday evening.

Posner wrote in his dissent that voter identification fraud is “a tiny subset” of one of many kinds of voter fraud, and it is “a mere fig leaf for efforts to disenfranchise voters likely to vote for the political party that does not control the state government.” He said the photo ID requirement placed an undue burden on the right to vote, and he criticized the evidence cited in support of the law.

“Some of the ‘evidence’ of voter-impersonation fraud is downright goofy, if not paranoid,” Posner wrote, “such as the nonexistent buses that according to the ‘True the Vote’ movement transport foreigners and reservation Indians to polling places.”

Friday’s en banc refusal—the result of a 5-5 tie vote—was the second time the appeals court declined an en banc rehearing in the case. The first refusal, on Sept. 26, declined to reconsider an earlier order reinstating the voter ID law while the court considered the challenge to the law on the merits. It was the earlier order that the Supreme Court vacated Thursday evening.

It’s likely those challenging the law will ask the Supreme Court to stay the 7th Circuit’s merits decision as well, and the Supreme Court is likely to oblige, the Election Law Blog says.

According to the Journal Sentinel, Posner’s opinion is significant because he previously wrote a decision upholding Indiana’s voter ID law that was affirmed by the U.S. Supreme Court.