The short summary of the Federal Appeals Court hearing on voter ID in Wisconsin had two interesting statements from the judges.

First:

Adelman found some 300,000 people in Wisconsin do not have IDs and determined requiring people to show IDs at the polls would discount far more legitimate votes than fraudulent ones. He concluded voter impersonation — the only kind of fraud the voter ID law would curb — is essentially nonexistent, noting state officials could not cite any examples of it.

But Sykes said Adelman’s findings are “hard to reconcile” with a 2008 U.S. Supreme Court decision upholding Indiana’s voter ID law. Easterbrook also questioned how Adelman could render his ruling in light of that decision.

“He took evidence and found the Supreme Court was wrong,” Easterbrook said.

I defer to the legal experts on what the Supreme Court said in the Crawford decision (see Dan Tokaji and Chris Elmendorf), but early on in Stevens’s decision, he wrote:

Indiana also claims a particular interest in preventing voter fraud in response to the problem of voter registration rolls with a large number of names of persons who are either deceased or no longer live in Indiana. While the record contains no evidence that the fraud SEA 483 addresses—in-person voter impersonation at polling places—has actually occurred in Indiana, such fraud has occurred in other parts of the country, and Indiana’s own experience with voter fraud in a 2003 mayoral primary demonstrates a real risk that voter fraud could affect a close election’s outcome. There is no question about the legitimacy or importance of a State’s interest in counting only eligible voters’ votes. Finally, Indiana’s interest in protecting public confidence in elections, while closely related to its interest in preventing voter fraud, has independent significance, because such confidence encourages citizen participation in the democratic process. 

The objection some scholars have is that the evidence is wrong, and that calls into serious question the basis upon which the Court rendered it’s decision.

There was no evidence of in-person voter impersonation in Indiana (see page 8 here) and there is no evidence in Wisconsin, either.  The 2003 mayoral primary fraud case involved absentee ballots, a method of casting a ballot that does not require a voter ID.  Thus, the 2003 case is irrelevant for Crawford, and is irrelevant in Wisconsin.

Perhaps the evidence in the Wisconsin case was different from Indiana.  Perhaps there was not a single, irrelevant case of absentee voter fraud that could be used to justify the imposition of voter id requirements.  Perhaps proportionally more voters in Wisconsin lack a photo ID than in Indiana.

And perhaps the quotes in the story are incomplete.

But they seem to imply that the facts from a different case in a different state with a different body of evidence cannot possibly yield a different conclusion than the Crawford case.  I hope that’s not the way that evidence works in the Courts.