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Sunday, October 20, 2013

Ind. Decisions - Wrapping up, on the ILB at least, the comments on Judge' Posner's disclosure re his decision in the voter ID challenge [Updated Oct. 22]

The ILB has had a number of entries under the heading "Judge Posner has second thoughts on his voter ID decision; says he didn't know enough," dating back to this one from a week ago. Since that time there have been various news articles and editorials, including this article and this editorial from the NYT, posted on the ILB on the 16th and 17th.

Also on the 17th, the attorney who argued the Crawford side before the SCOTUS spoke out, responding to Judge Posner's disclaimer that he wasn't presented enough information.

Also on the 17th, the $$ WSJ Law Blog reported that retired Supreme Court Justice John Paul Stevens "said he was concerned by the proliferation of state laws tightening voter-identification requirements but believes he ruled correctly in 2008 that an Indiana voter-ID law could stand." More:

But he said his opinion was correct because the challengers failed to present enough evidence showing the requirement suppressed poor and minority voters. "My opinion should not be taken as authority that voter-ID laws are always OK," Justice Stevens said. "The decision in the case is state-specific and record-specific." * * *

"At the time of the Indiana arguments, we understood it was a party-line vote [by Indiana lawmakers] and it was perfectly clear the Republicans thought they would get an advantage out of it," Justice Stevens said. But "even though the motives were bad, I don't think the constitutionality turns on the motive of the legislature" if the law is "otherwise valid," he added. * * *

The Supreme Court's 2008 ruling upholding the Indiana law, which requires voters to present a photo ID issued by the state or federal government, didn't have a single majority opinion. Justice Stevens's opinion, joined by Chief Justice John Roberts and Justice Anthony Kennedy, explicitly left open the door to challenges to voter ID laws if plaintiffs present evidence of burdens that violate the 14th Amendment's equal-protection clause.

Justice Antonin Scalia wrote a concurring opinion joined by Justices Clarence Thomas and Samuel Alito that left less room for future challenges. Three justices including David Souter dissented and said they would have struck down the Indiana law.

Justice Souter reasoned that "tens of thousands of voting-age residents lack the necessary photo identification" and the law would disproportionately affect those who have trouble getting to state offices offering photo IDs. The dissent included statistics sourced to Indiana state agency websites. Justice Souter, who retired in 2009, declined to comment for this article.

"I have always thought that David Souter got the thing correct, but my own problem with the case was that I didn't think the record supported everything he said in his opinion," said Justice Stevens, who retired in 2010. "He got a lot of stuff off the Internet and inferred things and so forth." But "as a matter of actual history, he's dead right. The impact of the statute is much more serious" on poor, minority, disabled and elderly voters than evidence in the 2008 case demonstrated, he said.

Comment #4 to this entry on The Brad Blog (more about the blogger), dated Oct. 13th and written by Indianapolis attorney Bill Groth, reads:
I served as lead counsel for the Indiana Democratic Party in Crawford and write to respond to Mr. Canning's apparently uninformed comments suggesting that the record in Crawford contained no evidence that any voter had been or would be harmed by Indiana's new ID requirements. Though my client brought this suit as a pre-enforcement facial challenge, it is untrue to state or imply that the record contained no evidence from or about voters who'd be disenfranchised or unnecessarily burdened by the law's requirements. If anyone would take the time to review the voluminous record of affidavits, deposition transcripts, and declarations submitted in support of our summary judgment motion, as well as by the ACLU which represented several individuals and associations, it will be obvious that the problem with Posner's ruling was not the lack of evidence but that, as he now concedes, he applied the wrong legal standards, including a too strict burden on the Plaintiffs and no burden whatsoever on the State to prove that the "problem" the State sought to ameliorate (imposter voting) existed. He also made no effort to inquire whether the new law would unnecessarily burden or even disenfranchise more voters than the number of imposters it would deter or detect. Not only did the record before the district court, which is accessible at no cost here, include a large number of affidavits from voters who did not have and would be unable to obtain a photo ID, it included expert testimony including from a renowned political scientist at Indiana University who opined, without contradiction, that this law would increase the costs associated with voting and thus have an adverse impact on turnout.

Judge Posner's admission of errer is indeed a stunning one. Had he switched his vote, the Indiana law would have been declared unconstitutional, and the odds that SCOTUS would have granted cert. would have declined exponentially, given Posner's prodigious reputation. In short, there would have been no Crawford decision handed down by SCOTUS in 2008 and many other voter suppression laws subsequently enacted would not have enjoyed the broad license many now (though wrongly) claim Crawford provides.

Finally, today, both the IndyStar and the Fort Wayne Journal Gazette have articles/editorials on last week's story. From the Star:
Posner’s admission didn’t sit well with Bill Groth, the lead attorney for the Indiana Democratic Party in Crawford v. the Marion County Board of Election.

Groth wrote on www.BradBlog.com that plenty of evidence was submitted. The problem, Groth writes, was that Posner put too much of a burden on the law’s challengers to prove the law was a burden, and didn’t require the state to prove that the action they were trying to prevent — people impersonating others to cast a vote in person — existed.

Marion County Clerk Beth White, a Democrat, struck a similar note when she told The Star last week that Posner’s mea culpa on the case was “cold comfort” for her and other opponents of the voter ID law.

From the FWJG:
Judge Terence T. Evans, the dissenting vote on the three-judge panel, “was right,” Posner said.

“Let’s not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic,” wrote Evans, who died in 2011.

But the majority opinion, affirmed by the U.S. Supreme Court in 2008, became the foundation for GOP efforts elsewhere to restrict access to the polls. Posner told the New York Times last week that the political environment has changed since the case was heard. “There’s always been strong competition between the parties, but it hadn’t reached the peak of ferocity that it’s since achieved,” he said. “One wasn’t alert to this kind of trickery, even though it’s age old in the democratic process.”

The trickery has continued with a continuing assault on voter rights. “Fraud” is the inevitable justification for each new measure. The current Indiana secretary of state, Connie Lawson, unveiled a new state voter registration form just this month with the obligatory reference to fraud. Prosecutions for voter fraud, of course, are exceedingly rare. Save for the felony conviction of Lawson’s predecessor, Republican Secretary of State Charlie White, charges are virtually unheard of in Indiana.

The Supreme Court decision left room for examining evidence that voter ID laws disenfranchise voters. Those examples are growing and will inevitably form the basis of new challenges and new precedent.

In the meantime, Posner’s admission of error should stand as the definitive word against further attacks on voter rights. Supporters of similar suppression laws have used the appeals court ruling as a battering ram against mostly minority voters with obstacles to obtaining birth certificates or other acceptable ID verification. That tool is rendered ineffective by the judge’s mea culpa.

[Updated Oct. 22] Fran Quigley, a clinical professor at Indiana University McKinney School of Law, posted this article on Nuvo's News Blog yesterday.

Posted by Marcia Oddi on October 20, 2013 12:54 PM
Posted to Ind. (7th Cir.) Decisions