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.”