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Oct 16 2013

Posner Recants Voter ID Ruling

Richard Posner is an absolutely legendary federal judge on the 7th Circuit Court of Appeals, probably the most famous and most respected member of the federal bench not on the Supreme Court. And he once wrote a decision upholding photo ID laws for voting, a decision he has now decided was wrong. Rick Hasen, one of the nation’s foremost experts on voting rights and election law, has the story.

In response to Mike Sacks’s questions about whether Judge Posner and the 7th circuit got it wrong in Crawford case, the one upholding Indiana’s tough voter id law against constitutional challenge:

“Yes. Absolutely. And the problem is that there hadn’t been that much activity with voter identification. And … maybe we should have been more imaginative… we…. weren’t really given strong indications that requiring additional voter identification would actually disfranchise people entitled to vote. There was a dissenting judge, Judge Evans, since deceased, and I think he is right. But at the time I thought what we were doing was right. It is interesting that the majority opinion was written by Justice Stevens, who is very liberal, more liberal than I was or am…. But I think we did not have enough information. And of course it illustrates the basic problem that I emphasize in book. We judges and lawyers, we don’t know enough about the subject matters that we regulate, right? And that if the lawyers had provided us with a lot of information about the abuse of voter identification laws, this case would have been decided differently.”

After such laws were implemented, studies have shown that they have a hugely disparate impact on poor, minority and elderly voters. Posner has a new book out in which he discusses the Crawford case, saying, “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 law now widely regarded as a means of voter suppression rather than fraud prevention.”

7 comments

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  1. 1
    D. C. Sessions

    Nice to see anyone admitting a mistake.

    In Judge Posner’s case, maybe he can give some thought to some of his other landmark efforts as well, such as gutting the legal protections against monopoly abuse.

  2. 2
    doublereed

    It’s things like this that I find judicial activism quite worrying (and yes I understand that ‘judicial activism’ refers to ‘things I don’t like’). People codifying precedent that is extremely difficult to overturn and then not realizing they had simply had inaccurate or skewed information. I wonder if any of the justices have changed their mind about Citizen’s United.

  3. 3
    D. C. Sessions

    I wonder if any of the justices have changed their mind about Citizen’s United.

    We’re about to find out. CU part II is on its way, with the issue being direct contributions to campaigns from known donors.

  4. 4
    Dr X

    IIRC, Posner said during an interview last year on NPR (or on the NPR station in Chicago) something to the effect that the conservatives have gone batshit crazy, rendering him something of an outsider to conservatism, which in turn, had the effect of freeing him to rethink and change some of his views. He didn’t articulate it perfectly, but it struck me at the time that he was implicility acknowledging an effect of tribalism on the way people think about politics. If you realize you’re not part of the tribe anymore, your thinking starts to change. Perhaps this is part of the change in Posner.

  5. 5
    howardhershey

    My wife is pissed at Posner. She wrote an accompanying document used as evidence presented to the judges (and to the Supreme Court as well) that demonstrated that political science clearly showed that there would be a differential impact on the poor, the elderly, minorities, and people living in cities for very little effect on any in-person voting fraud. [There is voting fraud: It tends to be people voting absentee from assisted living and nursing homes as a bloc because someone is voting for them, fraudulent registration which only passes on names from people who they want to vote and discarding the others; and rich people with houses in more than one district voting in both. Even that fraud typically makes little difference. In person fraud is very rare. Voter suppression is not.] Her paper was introduced as evidence in both the Posner court, where it was opposed (rather weakly) by a counter-argument and accepted without dissent when it went to the Supremes. If they read her paper, they cannot now claim ignorance about the probable impact.

  6. 6
    Ben P

    Her paper was introduced as evidence in both the Posner court, where it was opposed (rather weakly) by a counter-argument and accepted without dissent when it went to the Supremes. If they read her paper, they cannot now claim ignorance about the probable impact.

    ehhhhhh

    What you’re describing is an Amicus Brief. An Amicus Brief is argument, which is very distinct from evidence.

    By law, an appellate court is restricted to evidence presented at the Trial Court. That is stuff that was offered by one of the parties, without objection, or successfully over objection, and accepted by the court, pursuant to the Rules of Evidence. The evidence considered by the trial court, along with the arguments advanced by the parties, form the record on appeal, which according to law, are the only things the appellate court is allowed to consider.

    This distinction gets fuzzy at the Supreme Court Level because the Supreme Court can, and has, written opinions based on various social science theories, as well as opinions based on arguments barely raised by the lower parties.

    It is much much less fuzzy for a circuit court of appeals, because they can and will get overturned by the supreme court if they make up a judicial argument not based in the evidence or not advanced by the parties.

    An Amicus Brief is a brief by a “friend of the court,” and is NOT evidence in the technical sense. It is simply argument presented by a third party, suggesting the judges consider one or more outside opinions. They are not used in most cases, and even where they are used, you’re kidding yourself if you think the courts actually read all the Amicus Briefs filed. (politically controversial cases draw dozens of requested Amicus briefs).

    For all Posner’s esteem as a judge, it is very likely that either (a) he never read your wife’s amicus brief, or (b) considers it not to have been part of the record on appeal and therefore largely outside of his consideration on which to accept new theories.

  7. 7
    howardhershey

    Thanks. I am not a lawyer and don’t even play one on TV.

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