Two events occurred in 2008 that help explain why we live today in a new age of voter suppression. Everyone talks about the second occurrence, the election of Barack Obama in November and the wave of explicit white racism that followed it, when explaining why so many Republican officials now are so eager deny their fellow citizens the ability to vote. Too few people ever talk about the first event that occurred in 2008 that led us to today’s desperate fight for voting rights: the Supreme Court’s decision in Crawford v. Marion County that upheld Indiana’s voter ID law. The Crawford decision was wrong the day it was decided. Wrong because it validated state lawmakers who had ginned up onerous new voting restrictions without offering any credible evidence that such restrictions were necessary. Wrong because widespread in-person voter fraud, then and now, is a myth fabricated by conservative ideologues who seek to use it as justification to disenfranchise millions of poor, elderly, or minority voters. Wrong, according to 7th U.S. Circuit Court Judge Richard Posner, the Reagan-nominated judge who wrote the appellate decision the Supreme Court upheld in Crawford. To his credit, Judge Posner determined years ago that he had made a terrible mistake and wasn’t afraid to say so.
Crawford was wrong, as even the man who crafted the decision in the Supreme Court, former Justice John Paul Stevens, surely now realizes. A few years ago, after he had retired, he said he believed he had applied the proper legal standards for the 6-3 majority, but that Crawford was, in the end, “a fairly unfortunate decision.” That’s nice to hear but a little too easy for him to say. Crawford is a “fairly unfortunate decision” if you aren’t the one who has been disenfranchised by it or by the voluminous voter suppression laws that have sprung up in its wake. It’s a monstrosity of a ruling if Republican lawmakers have taken away your vote and then hidden behind Crawford as an excuse for doing so.
We can never know if a different outcome in Crawford might have changed the course of American history by changing the result of the Supreme Court’s landmark and disastrous voting rights ruling in Shelby County v. Holder in 2013. Indiana’s voter ID law was a state law and Indiana was not a state covered by the “preclearance” provision of the federal Voting Rights Act– the focus of the Shelby County case. The preclearance requirement prohibited certain jurisdictions from implementing any change affecting voting without receiving preapproval from the U.S. Attorney General or the U.S. District Court for D.C. that the change did not discriminate against protected minorities.