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“A Failure Of Democracy”: Judge Richard Posner’s Unforced Error On Voter ID And Non-Existent Voter Fraud

Two weeks ago, Richard Posner, one of the most respected and iconoclastic federal judges in the country, startled the legal world by publicly stating that he’d made a mistake in voting to uphold a 2005 voter-ID law out of Indiana, and that if he had properly understood the abuse of such laws, the case “would have been decided differently.”

For the past ten days, the debate over Judge Posner’s comments has raged on, even drawing a response from a former Supreme Court justice.

The law in question requires voters to show a photo ID at the polls as a means of preventing voter fraud. Opponents sued, saying it would disenfranchise those Indianans without photo IDs — most of whom were poor, elderly, or minorities. State officials said the law was necessary, even though no one had ever been prosecuted for voter fraud in Indiana.

Judge Posner claimed, during an Oct. 11 interview with HuffPost Live, that at the time of the ruling, he “did not have enough information … about the abuse of voter identification laws” to strike down the Indiana statute. But he also said the dissenting judge on the panel, Terence Evans, had gotten it “right” when he wrote that the law was “a not-too-thinly-veiled attempt to discourage election-day turnout” by certain voters who tended to vote Democratic. (It was passed on a straight party-line vote by a Republican-controlled legislature.)

Last Thursday, former Supreme Court Justice John Paul Stevens sounded several of the same notes, telling the Wall Street Journal that while he “isn’t a fan of voter ID,” his own 2008 opinion upholding Judge Posner’s ruling was correct — given the information available at the time. Incidentally, Justice David Souter dissented for roughly the same reasons as Judge Evans, and Justice Stevens now says that “as a matter of history,” Justice Souter “was dead right.”

But all the judges had the same record in front of them at the time. So what information did the dissenters rely on that Judge Posner and Justice Stevens did not? That’s the question raised in a smart critique by Paul M. Smith, who argued the plaintiffs’ case before the Supreme Court.

Mr. Smith pointed out that there was never any doubt the law would make voting harder for potentially tens of thousands of voters, and that the plaintiffs submitted numerous affidavits from voters who explained how they would be harmed by the law. Even if the actual number was lower, it was certainly higher than zero, which is the number of voter-fraud incidents recorded in Indiana when the law was enacted.

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.”

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.”

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.


By: Jesse Wegman, Editors Blog, The New York Times, October 22, 2013

October 23, 2013 - Posted by | Federal Judiciary, SCOTUS, Voter ID | , , , , , ,

1 Comment »

  1. Reblogged this on counseltown.


    Comment by counseltown | November 15, 2013 | Reply

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