Wednesday, October 23, 2013
Ind. Courts - Reactions to Judge Posner's mea culpa continue; and what did the District Court say? [Updated]
The ILB recently has been collecting responses in two posts, this one from Oct. 20th, headed "Wrapping up, on the ILB at least, the comments on Judge' Posner's disclosure re his decision in the voter ID challenge", and this one Oct. 21st, which looks at the why and whether of Judge Posner's statement.
But they continue. Today Jesse Wegman, an attorney and an editorial writer for the NY Times, neatly summarizes (and links to) practically everything that has been written before, and then concludes:
In other words, both the Seventh Circuit and the Supreme Court got the balance of burdens wrong, as Indiana University law professor Fran Quigley rightly noted. Given that voting is a fundamental right, Quigley wrote, “the burden should have been on the State of Indiana to prove the law was necessary, not the challengers to prove how it would trigger abuse.” ,p> Judge Evans put it more pungently in his 2007 dissent, saying the law was effectively using “a sledgehammer to hit either a real or imaginary fly on a glass coffee table.”David Bangert, a columnist with the Lafayette Journal & Courier, has a lengthy article today, with quotes from a number of people.
Rather than acknowledge this reality, Judge Posner’s original opinion dismissed the importance of the voters’ claims, contending that since no election gets decided by a single vote, the “benefits of voting to the individual voter are elusive.”
That bizarre logic suggests that the judge’s problem was not a lack of information, but what former White House counsel Bob Bauer called “a failure of democratic imagination.”
Particularly in light of the Supreme Court’s decision in June gutting the Voting Rights Act, it would be nice if Judge Posner extended his fuller understanding of the true nature of voter-ID laws to his legal opinions, and not simply to online interviews.
Some ILB thoughts: The saying goes that the first wave of history always gets it wrong, that time provides needed perspective. Maybe that is the case with the voter ID issue and the courts. With the benefit of 7 years of history, I went back and looked again at the district court judge Sarah Evans Barker's 127-page, 4/14/2006 opinion in the case that next went to the 7th Circuit and the Posner panel. Here is Judge Barker's 2006 summary:
This litigation is the result of a partisan legislative disagreement that has spilled out of the state house into the courts. Plaintiffs (with one possible exception) became engaged in this dispute while it was still being debated by the Indiana General Assembly and, in moving to this judicial forum, in many respects they have failed to adapt their arguments to the legal arena. Plaintiffs, for example, have not introduced evidence of a single, individual Indiana resident who will be unable to vote as a result of SEA 483 or who will have his or her right to vote unduly burdened by its requirements. Plaintiffs also have repeatedly advanced novel, sweeping political arguments which, if adopted, would require the invalidation, not only of SEA 483, but of other significant portions of Indiana’s election code which have previously passed constitutional muster and/or to which Plaintiffs do not actually object; indeed, they offer them as preferable alternatives to the new Voter ID Law. In so doing, Plaintiffs’ case is based on the implied assumption that the Court should give these Constitutional and statutory provisions an expansive review based on little more than their own personal and political preferences.[Updated at 4:30 PM] Law prof. Rick Hasen has a new article in The Daily Beast titled "Why Judge Posner Changed His Mind On Voter ID Laws." Definitely a must read on this topic.
Plaintiffs have mounted a facial challenge to the validity of SEA 483, raising a variety of related issues about the Voter ID Law, including that it substantially burdens the fundamental right to vote, impermissibly discriminates between and among different classes of voters, disproportionately affects disadvantaged voters, is unconstitutionally vague, imposes a new and material requirement for voting, and was not justified by existing circumstances or evidence. Defendants deny all of these criticisms, defending the enactment of SEA 483 as being justified by legitimate legislative concern for inperson voting fraud and a reasonable exercise of the State’s constitutional power to regulate the time, place, and manner of elections. Defendants also claim that Plaintiffs lack standing to bring this attack on the statute, and that, in any event, the Secretary of State and the Co-Directors of the Indiana Election Division are not proper defendants in this action.
For the reasons elaborated below, we hold that SEA 483 is a constitutionally-valid, reasonable time, place, and manner restriction on voting and on voters and, therefore, we GRANT Defendants’ Motions for Summary Judgment and DENY Plaintiffs’ Motions for Summary Judgment.
Posted by Marcia Oddi on October 23, 2013 11:30 AM
Posted to Indiana Courts