Super Lawyers
William C. Altreuter

Monday, October 13, 2014

I'm helping out with BuffState's moot court program again this semester. It's kinda fun to do, and it broadens the kind of students I work with, but best of all it gives me an opportunity to think a little bit about larger socio-legal issues. This year's problem involves a hypothetical statute which requires women seeking an abortion to undergo and watch a trans-vaginal ultrasound, along with a 24 hour waiting period, and some other stuff. The performing physician performing the procedure must read from a prepared script, and cannot depart from it to offer any further medical advice, so both the undue burden issues surrounding abortion rights and First Amendment issues are implicated. It's a nifty problem, I think, and it forces one to confront an uncomfortable question: Can we assume the good faith of any legislature?

I am reminded of this because Outside Counsel hero, the Hon. Richard Posner, has reversed himself and written a strong opinion about voter identification laws.
This opinion, written on behalf of five judges on the 7th Circuit, thoroughly disabuses such notions such as: these laws are meant to deal with a phantom voter fraud concern (“Out of 146 million registered voters, this is a ratio of one case of voter fraud for every 14.6 million eligible voters”); that evidence shows them to be little more than baldly partisan attempts to keep Democratic voters from voting (“conservative states try to make it difficult for people who are outside the mainstream…to vote”); that rightwing partisan outfits like True the Vote, which support such laws, present “evidence” of impersonation fraud that is “downright goofy, if not paranoid”; and the notion that even though there is virtually zero fraud that could even possibly be deterred by Photo ID restrictions, the fact that the public thinks there is, is a lousy reason to disenfranchise voters since there is no evidence that such laws actually increase public confidence in elections and, as new studies now reveal, such laws have indeed served to suppress turnout in states where they have been enacted.
Voter ID laws are, I think, pretty plainly designed to suppress minority voter turnout, just as the laws in Texas, Missouri, Indiana, the Dakotas, Arkansas, Georgia, Idaho, Michigan, Nebraska, the Carolinas,  West Virginia, real Virginia, Mississippi, and Kansas (ugh, what a list) are forced pregnancy laws. The history of the jurisprudence surrounding women's health issues -- or rather, the history of state legislation in the years following Casey v. Planned Parenthood looks to me like the same sort of bad faith, but legislative competence and good faith must be presumed.

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