Rick Hasen yesterday pounded away at Judge Posner’s opinion in Crawford v. Marion County Election Board, a decision upholding the State of Indiana’s voter ID law.  Posner turned in a striking performance, questioning the instrumental value (to the voter) of voting and offering the thinnest of rationalizations for the dearth of evidence of voter impersonation.   Posner both discounts the importance of voting while inflating the case for fraud, and he gets both propositions wrong.  Hasen asks how Posner, well known for attending to data and for valuing the empirically grounded policy analysis, could disregard those commitments here, in this case.

     One explanation is that Posner does not believe that the policy challenge requires care with or support from the data.  He argues that the data is hard to reliably collect.  His position, then, is that we can’t expect to have much data; and if this is so, then the policy has to be fashioned from other considerations.  Posner is not clear, entirely, about what these might be, but he leaves a clue that his position is not far from the Supreme Court’s in Purcell v. Gonzalez:  the mere fear of fraud is a good enough reason for legislation to ease it.  An efficient, well-designed system for running elections should include some provision for lessoning the fear of fraud, and as he sees it, requiring identification is certainly, in theory, reasonable. 

     Posner has rendered the collection and analysis of data largely irrelevant.  He also, subtly, anticipates and addresses the question of why more systematic study of the problem should not be asked of the legislators before burdens, in the form of identification requirements, are placed on the right to vote.  He does not think it is worth the effort, because of the low value he assigns to both the act of voting and the significance of the individual act of fraud.  Posner refers to the crime of fraud as “minor,” which explains to his satisfaction the relatively infrequent prosecutions brought by prosecutors with higher priorities.  Crawford at 7. And the analogy he chooses for the act of fraud is that of “littering.”  Id. at 8.  

     The choice of “littering” is especially rich in significance.  Littering is a regulatory problem, but how much time and effort would we devote to quantifying its occurrence?  That it happens is bad enough; it spoils the public space and, on the part of those engaged in it, it bespeaks a failure of good citizenship.  Posner’s precise point about littering is that the offenders, like those guilty of impersonation fraud, are hard to catch.  Yet the comparison works at a number of levels, also helping the Judge to lower the stakes—and by lowering the stakes, lower the burden carried by legislatures in justifying a particular regulatory solution. 

     Of course, Posner omits a step here:  we can see littering, but the whole point of the objection to the Indiana legislature is that it is legislating against an offense declared but not shown to exist.  Posner does not believe that legislators need to see it or act on proof of it.  Their job is to fashion policy with data when needed, and on well-reasoned grounds when data is either hard to come by or largely irrelevant.  Posner’s use of data in this case is refutable because it is half-hearted, and its half-heartedness is a measure of its unimportance to his argument.

     Just as unimportant to Posner is the evidence of legislative motive.  The dissent opens with a stress on partisan motive.  Posner makes nothing of it.  He would believe that partisan motive in the making of reasonable policy does not make the policy any less reasonable. 

     In looking past motivation, Posner has to disregard its effects as they eventually reach the individual voter.  Motivation is not washed away by the enactment of legislation, particularly legislation with an impact on fundamental rights.  Here the motivation explains how the legislation comes to be and how it comes to be shaped.  Voters (or potential voters) disadvantaged by the new law, in the exercise of the franchise, suffer a harm intended by the legislature but that Posner does not take seriously.  And he explains why he does not take it too seriously, and why we need not:  the individual vote is not that important, and so the cost here cannot possibly exceed the benefits.

     Considering Posner’s argument—its assumptions, analogies and logic—serves well to remind critics of the ID movements to the depressing reality that the argument is only barely, at the margins, about facts.  ID proponents may feel compelled to bring facts into their case.  Their effort is not particularly serious and when challenged, they will explain why facts are either unavailable or unimportant.  When they need them, they have material to cite—John Fund for the wider audience, Richard Posner for the elites.  To a great degree, the ID movement has largely gutted the potential for a serious debate on policy.

     So they will have to be made to answer for motive.  And the decisive fact in this debate about facts will turn out to be a political majority—a voting majority—built state by state, to require that they answer for it.

Bob Bauer