A month or so ago, a new book of mine, called Reflections on Judging, was published by the Harvard University Press. I have been a federal court of appeals judge since 1981, and over this extended period I have become acutely conscious of certain deficiencies of the federal judiciary, and those deficiencies are the principal focus of the book. To my considerable surprise, one sentence—I should have thought it entirely innocuous—in the book has received unusual attention in the media and blogs, much of it critical. The sentence runs from the bottom of page 84 to the top of page 85, in a chapter entitled “The Challenge of Complexity.” The sentence reads in its entirety: “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.” (The footnote provides the name and citation of the opinion: Crawford v. Marion County Election Board, 472 F.3d 949 (7th Cir. 2007), affirmed, 553 U.S. 181 (2008).)
To understand the sentence in context, one must read the portion of the first sentence of the paragraph in which it appears. I say that “the Supreme Court and the lower federal courts have managed to enmesh themselves deeply in the electoral process without understanding it sufficiently well to be able to gauge the consequences of decisions.” I did not say that my decision, and the Supreme Court’s decision affirming it (written, be it noted, by the notably liberal Justice Stevens), were wrong, only that, in common with many other judges, I could not be confident that it was right, since I am one of the judges who doesn’t understand the electoral process sufficiently well to be able to gauge the consequences of decisions dealing with that process. I may well have been wrong in Crawford, because laws similar (I do not say identical) to Indiana’s represent a “type of law now widely regarded as a means of voter suppression rather than of fraud prevention” (emphasis added)—“now” referring to the fact there has been a flurry of such laws since 2007, when my opinion in the Crawford case was issued, and they have been sharply criticized.
If you go back and read my opinion in Crawford, you’ll see that at least I was conscious of the fact that a voter ID law is two-edged. On the one hand, the more, and more-reliable, identification that it requires, the more it reduces the likelihood of voter fraud (impersonation of the person actually eligible to vote). On the other hand, the more such identification the law requires, the more it tends to disenfranchise eligible voters: for example voters who don’t drive, hence don’t have a driver’s license (which would have their photo on it), and may find it difficult to obtain the required photo ID.