10/15/2014 02:52 pm ET Updated Dec 15, 2014

Posner's Dissent Cast Shadow on the GOP's Future

When future legal scholars look back on the significant moments of 21st-century jurisprudence, they may well see fit to include Judge Richard Posner's recent dissent on Wisconsin's voter identification law as worthy of inclusion.

Like Justice John Harlan's famous dissent in the infamous Plessy v. Ferguson decision, Posner's dissent may ultimately prove to be the last word on this unsavory act that is a solution in search of a problem.

The Reagan-appointed judge who sits on the United States Court of Appeals for the Seventh Circuit, who is also arguably the most influential judge on the federal bench, considers voter identification laws equal to voter suppression.

Posner hasn't always felt this way. In 2007, Posner wrote an opinion upholding Indiana's voter identification law that was subsequently upheld by the Supreme Court. Borrowing from words attributed to Winston Churchill, it would appear Posner would rather be right than consistent.

But Posner's reversal was the end result of an illumination process that included data that did not exist in 2007. The current data now lead Posner to conclude that voter identification laws have but one overarching goal: to make it more difficult for poor people, especially blacks and Latinos, to cast votes.

"Some of the 'evidence' of voter-impersonation fraud is downright goofy, if not paranoid, such as the nonexistent buses that according to the 'True the Vote' movement transport foreigners and reservation Indians to polling places," Posner wrote in his recent dissent.

He adds: "Even Fox News, whose passion for conservative causes has never been questioned, acknowledges that Voter ID Laws Target Rarely Occurring Voter Fraud.'"

The latter point referred to a September 2011 article published on the Fox News website stating: "Supporters of the new (Voter ID) laws are hard pressed to come up with large numbers of cases in which someone tried to vote under a false identity."

But underneath Posner's dissent lies a political party languishing in the bowels of desperation. Whether voter identification laws help the Republican Party in the upcoming midterm election does not alter the immutable reality that the country is changing demographically.

Alabama Governor George Wallace stated on January 14, 1963, "In the name of the greatest people that have ever trod this earth, I draw the line in the dust and toss the gauntlet before the feet of tyranny and I say segregation now, segregation tomorrow, segregation forever!" Though a Democrat, Wallace unleashed the Republican playbook that would last for more than 50 years.

From Richard Nixon's Southern Strategy to Ronald Reagan's "I believe in States Rights" to the 2006 Senate race in Tennessee, Republicans have consistently used the dog whistle of race to incite fear in many white voters.

But stoking white fears alone no longer renders the success it once did.

California is not a Democratic stronghold because of the superiority of its ideals, but more so because of Republicans consistent desire for short-term gains by marginalizing segments of minority populations.

This trend does not mean good news for Democrats. The electorate will invariably be the ultimate loser. In a two-party system, if both are not strong, mediocrity is the best that can be achieved and the narrow concerns of special interest will prevail.

Though these tactics may suffice in November, it does not offer stability in the long-term.
The GOP is largely regional in its influence, systematically whittling itself out of the Electoral College in its ability to garner 270 votes. This reality is evident by its use of paranoia as a viable political tool.

After decades of political success, Republicans have painted themselves into a corner with contrition offering of the only exit. Instead of competing in the marketplace of ideas, the Republican Party would rather cling to the low hanging fruit of divisiveness and fear.

In a democracy, it is never a good sign when a major political party feels its best chances for victory include voter suppression.