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Judges second-guessing their voter-ID court rulings

In an editorial [1] last week, the Wall Street Journal went after U.S. Attorney General Eric Holder for suing North Carolina over voting law changes enacted by the North Carolina General Assembly in June, calling his efforts to bail the state back into federal supervision under the still-viable Section 3 of the Voting Rights Act a backdoor tactic with little chance of success.

Putting aside the fact that the Attorney General challenges several of the changes — shortening of the early voting period, for example, or the elimination of provisional ballots for those who vote in the wrong precinct — the Journal argues that Holder is out of luck because courts elsewhere have approved voter ID laws.

Courts have already reviewed similar laws in other states and found them legal. In 2008, in a 6-3 decision written by liberal former Justice John Paul Stevens, the Supreme Court upheld the constitutionality of Indiana’s voter ID law. In 2011, the Georgia Supreme Court ruled 6-1 that the Peach State’s voter ID law was constitutional, calling its photo ID requirements a “minimal, reasonable, and nondiscriminatory restriction.” Thirty-four states now require voters to show some form of photo ID.

What the paper fails to note is that Justice Stevens has had a change of heart in  recent years and, as Andrew Cohen points out in the Brennan Center blog [2], has blasted the current justices for the court’s ruling in Shelby County v. Holder.

Justice Stevens has been a fierce and public critic of the Court’s decision in Shelby County v. Holder [3], the decision that has enabled states like North Carolina (and Texas [4] and Florida [5]) to move so decisively this to try to disenfranchise voters. Less than one month after Shelby County, for example, Justice Stevens, writing [6] in The New York Review of Books, blasted the Court’s conservative majority for usurping Congress’s primary role in policing the pernicious role that prejudice plays in voting.

And just this week, Stevens himself expressed second thoughts [7] over his 2008 opinion upholding the Indiana voter-ID law. Referring to then Justice David Souter’s dissent in that case, reasoning that the law would have a disproportionate impact on poor and minority voters, Stevens said:

I have always thought that David Souter got the thing correct, but my own problem with the case was that I didn’t think the record supported everything he said in his opinion. He got a lot of stuff off the Internet and inferred things and so forth. But as a matter of actual history, he’s dead right. The impact of the statute is much more serious on poor, minority, disabled and elderly voters than evidence in the 2008 case demonstrated.

Justice Stevens’ thoughts come on the heels of similar comments by federal appeals court Judge Richard Posner, who joined in the Seventh Circuit’s 2-1  majority opinion, upholding the Indiana law, which landed in the Supreme Court in 2008.

As Policy Watch’s Rob Schofield noted [8]earlier this week, Posner too now says his ruling was wrong — something he elaborates on in his new book “Reflections on Judging“:

I plead guilty to having written the majority opinion (affirmed by the Supreme Court) upholding Indiana’s requirement that prospective voters prove their identity with a photo ID—a type of law now widely regarded as a means of voter suppression rather than of fraud prevention.