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Sunday, October 13, 2013

Ind. Decisions - Judge Posner has second thoughts on his voter ID decision; says he didn't know enough

This was Crawford v. Marion County Election Board, the voter ID decision that was later affirmed by the SCOTUS and has set the precedent. Here is the Jan. 4, 2007, 2-1 7th Circuit opinion. Here is the April 5, 2007 7-4 ruling denying rehearing en banc. Now-Chief Judge Woods wrote the 5-page dissent. Here is a sample:

The state’s justification for the new voting requirement is voter fraud—specifically, the problem of fraud on the part of people who show up in person at the polling place. Yet the record shows that the existence of this problem is a disputed question of fact. It is also a crucial question for the inquiry that Burdick demands, because if the burden on voting is great and the benefit for the asserted state interest is small as an empirical matter, the law cannot stand. This creates, as FED. R. CIV. P. 56 puts it, a “genuine issue of material fact” that may not be resolved in favor of the state in ruling on the state’s own motion for summary judgment. In fact, it appears that no one has ever, in Indiana’s history, been charged with voter fraud. Burdick requires an inquiry into the “precise interests put forward by the State as justifications for the burden imposed,” but in this case, the “facts” asserted by the state in support of its voter fraud justification were taken as true without any examination to see if they reflected reality.
Here is the SCOTUSblog case page on the April 28, 2008 opinion upholding the Indiana voter ID law.

Josh Gerstein of Politico wrote Oct. 11th on Judge Posner's widely-reported statement re his 2007 opinion. Here are some quotes:

In an interview Friday on HuffPostLive, Seventh Circuit Judge Richard Posner said his opinion finding the Indiana law constitutional was mistaken, due to the court not having sufficient information about how the law could be used to prevent or discourage people from voting. * * *

And the problem is that there hadn’t been that much activity with voter identification," Posner said. "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."

Posner authored the 2-1 opinion in Crawford v. Marion County, which likely influenced the Supreme Court in its 6-3 decision upholding the statute in the same case.

"There was a dissenting judge [on the appeals court panel], Judge Terence Evans, since deceased, and I think he was right," Posner said. "But at the time I thought what we were doing was right. It is interesting that the majority opinion was written by Justice [John Paul] Stevens, who is very liberal, more liberal than I was or am…. But I think we did not have enough information. * * *

The Supreme Court's ruling in the Indiana voter ID case is a potentially serious obstacle to efforts by private groups and the Justice Department to target voter ID laws in the wake of the Supreme Court ruling earlier this year striking down the requirement the Voting Rights Act imposed on all or parts of 15 states to get advance clearance for voter ID and similar laws.

Here is Rick Hasen's Election Law Blog report on Judge Posner's statements on Friday.

Finally, the ILB asked an attorney familiar with the case for a reaction:

For Judge Posner now to admit he was wrong but then blame the lawyers for not giving him enough information by which he could evaluate the suppression claims takes real chutzpah. He was well aware of the history of race and class-based voter suppression in this country. He also had no record of voter fraud in front of him, yet placed no burden of proof on the State while holding Crawford's attorneys to an impossible standard.

And if they presented him with such an anemic record, why did Judge Evans, and later Judges Wood, Williams and Rovner en banc, who looked at the same evidence, get it right while Posner got it wrong?

The consequences of this mistake were immense. Had Posner switched his vote, Judge Sykes may have as well, and the odds of SCOTUS hearing this case decline exponentially. Indiana's law would thus not have become a model for other voter suppression laws across the nation, and Crawford's majority opinion may have been written by Judge Evans, striking down Indiana's law. That would have dramatically altered the course of election law and set a completely different tone and direction, particularly in light of Posner's prodigious reputation.

Posted by Marcia Oddi on October 13, 2013 01:50 PM
Posted to Ind. (7th Cir.) Decisions