The movement in a number of states including Wisconsin to require voters to prove eligibility by presenting a photo of themselves when they try to vote has placed an undue burden on the right to vote. Wisconsin’s statute permits voters to use only a Wisconsin driver’s license or Wisconsin state card, a military or tribal ID card, a passport, a naturalization certificate if issued within two years, a student ID (so long as it contains the student’s signature, the card’s expiration date and proof that the student really is enrolled in a school), or an unexpired receipt from a driver’s license/ID application. Wisconsin does not recognize military veteran IDs, student ID cards without a signature and other government-issued IDs. A recent national survey found that millions of American citizens do not have readily available documentary proof of citizenship. Many more — primarily women — do not have proof of citizenship with their current name. The survey also showed that millions of American citizens do not have government-issued photo identification, such as a driver’s license or passport. Finally, the survey demonstrated that certain groups — primarily poor, elderly and minority citizens — are less likely to possess these forms of documentation than the general population. … Consider the effect of strict voter ID laws on lawful turnout. The panel opinion does not discuss the cost of obtaining a photo ID. It assumes the cost is negligible. That’s an easy assumption for federal judges to make, since we are given photo IDs by court security free of charge. And we have upper-middle-class salaries.
A recent posting here suggested that the constitutional analysis of ID statutes is foundering on the issue of partisan motivation—the politics of ID. The centrality of this motivation is inescapable. it is impressing itself on a prominent jurist like Richard Posner, once dismissive of claims against ID statutes, and it is supported by the evidence considered by political scientists (see here and here). Yet the jurisprudence developed around ID has fared poorly in showing how political motivation can be incorporated into a constitutional test. The Supreme Court’s decision in Crawford is largely at fault here, having accepted the role of partisanship, even the hard, undeniable fact of it, so long as the state could point other reasons in theory for its enactment. So judges skeptical of ID laws have looked elsewhere for the case against ID. Posner’s recent dissent in the Wisconsin case is an example of what happens. He recognizes the driving force of partisanship: he even locates the Wisconsin law within a trend among states with Republican leadership that have moved toward ID around the same time in circumstances that indicate a common political purpose. But his opinion treats this as the only conclusion to be drawn from other facts–facts about the comparative restrictiveness of the ID laws and the projections about their disenfranchising impact.
Liberal observers are astonished and thrilled that Judge Richard Posner, the most influential judge sitting on the federal bench, has written a scathing condemnation of Wisconsin voter ID laws. Posner was appointed by Ronald Reagan, and his law-and-economics approach with its libertarian overtones can in a certain sense be described as conservative. Notably, Posner wrote a 2007 opinion upholding Indiana’s strict voter ID law — an opinion subsequently upheld by the Supreme Court. Now, it would seem from the headlines, Posner has reversed himself. Newsworthy, right? Well, sort of. A close reading of Posner’s opinion indicates that the judge hasn’t so much reversed his earlier view as he has taken seriously data that were unavailable in 2007. The numbers, as Posner now interprets them, do strongly suggest that the purpose of voter ID laws is to make it more difficult for poor people, especially blacks and Latinos, to cast votes. According to Posner, he wasn’t wrong in 2007. It’s just that then, there was no basis to assume that Indiana was trying to exclude minority voters. Now, there’s evidence in favor of that view. A careful look at Posner’s opinion is an object lesson in how a rational person should reconsider initial presumptions in light of new evidence — an approach pioneered by the British statistician Thomas Bayes in the 18th century and now dubbed Bayesianism. When Posner had to analyze the Indiana statute, he made much of the fact that, as he now puts it, “there was no evidence that the Indiana law was likely to disenfranchise more than a handful of voters.”
Congress leaned toward a breakthrough on Thursday, as elder statesmen from both parties agreed on a plan to restore the Voting Rights Act of 1965. Rep. John Lewis, who was beaten during the Selma march for civil rights in 1965, joined Rep. John Conyers, first elected that same year, and Rep. Jim Sensenbrenner, the conservative author of the Patriot Act and a longtime backer of the Voting Rights Act. They offered the first legislative response to the Supreme Court’s decision gutting the law last year. In June, the court invalidated parts of the Voting Rights Act because the law was not updated for current conditions. Chief Justice Roberts criticized Congress for using “40-year-old data” to patrol modern voter discrimination. That was peculiar logic, since most federal regulations sit on the books without updates. After all, laws aren’t iPhone apps. Their power comes from permanence, not a constant refinement. As Richard Posner, a respected appeals judge, explained in a critique of the ruling, “ordinarily… a federal statute is not invalidated on the ground that it’s dated.”
Working ballot by ballot, county by county, the Republican Party is attempting to alter voting laws in the biggest and most important swing states in the country in hopes of carving out a sweeping electoral advantage for years to come. Changes already on the books or in bills before state legislatures would make voting harder, create longer lines, and threaten to disenfranchise millions of voters from Ohio to Florida, Pennsylvania to Wisconsin, Georgia to Arizona and Texas. Efforts underway include moving election days, ending early voting and forcing strict new voter ID laws. The results could significantly cut voter turnout in states where, historically, low participation has benefited Republicans. In the 10 months since President Obama created a bipartisan panel to address voting difficulties, 90 restrictive voting bills have been introduced in 33 states. So far, nine have become law, according to a recent comprehensive roundup by the Brennan Center for Justice – but others are moving quickly through statehouses. “We are continuing to see laws that appear to be aimed at making it more difficult to vote—for no good reason,” Daniel Tokaji, an election law expert at Ohio State University, said in an interview.
A stunning reversal by the judge who wrote the key opinion upholding voter ID laws has given new ammunition to opponents of the laws passed or strengthened by Republican governors and legislatures in more than a dozen states, including Texas. Judge Richard Posner, a veteran member of the 7th U.S. Circuit Court of Appeals, made the reversal in a single sentence of his new book, Reflections on Judging, declaring such laws are “now widely regarded as a means of voter suppression, rather than fraud protection. 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,” wrote Posner, a Reagan appointee on the Chicago-based appeals court, who said last year, “I’ve become less conservative since the Republican Party started becoming goofy.” Subsequently, in a video interview with the Huffington Post, he said his majority opinion in the court’s 2-1 decision was “absolutely” wrong. Seemingly blaming lawyers opposing the law, he said, in 2007, “we weren’t really given strong indications that requiring additional voter identification would actually disenfranchise people entitled to vote.”
Voter ID laws are back in the news. Curiously, the most recent action concerns one of the oldest cases. Judge Richard Posner wrote the 2007 appellate opinion upholding Indiana’s strict photo ID law — the first legal one in the country — against a challenge. Justice John Paul Stevens wrote the 2008 opinion for the Supreme Court upholding that upholding. Both have recently publicly mused about the merits of arguments by the judges that disagreed. That sort of reflective appreciation for the opposing view is sufficiently unusual that it has provoked a flood of commentary. And that flood of commentary has largely lost sight of two very important distinctions. First: ID laws are not all the same. Every state makes sure, when people come to the polls, that they are who they say they are. It’s the details of how they do this that matter. Some states compare signatures. Many see whether they can match up Social Security digits, or ask for a document like a utility bill or paycheck, off a long list. Some have a shorter list of approved documents. Some ask for a government-issued photo ID card from those who have one, and demand a special affidavit from those who do not.
Voting Blogs: Judge Posner Recants Own Recantation of His Own Polling Place Photo ID Ruling. (Seriously.) | BradBlog
Okay. Now this is beginning to get completely absurd. In an article at New Republic headlined “I Did Not ‘Recant’ on Voter ID Laws’,” published Monday, 7th Circuit Appellate Court Judge Richard Posner now claims he hasn’t actually disavowed his landmark majority opinion in Crawford v. Marion County Election Board after all! The record will show, however, the Reagan-appointed judge may have a bit of a faulty — or, at least, selective — memory. The Crawford case is the now-infamous 2007 challenge to Indiana’s then new polling place Photo ID restriction law which Posner voted to uphold in a 2 to 1 decision. The law was subsequently upheld by the U.S. Supreme Court in 2008. It is the only high-profile case to uphold such laws as Constitutional, even though Justice John Paul Stevens, who wrote the controlling opinion at SCOTUS, now believes dissenting Justice David Souter “got the thing correct.”
Editorials: More on Judge Posner’s (Now Disavowed?) Mea Culpa on Voter ID Laws | Ed Whelan/National Review
For those interested in another round of Judge Richard Posner’s self–immolation, here’s the latest bizarre twist concerning (to quote his words from pp. 84-85 of his new book Reflections on Judging) his “plead[ing] 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”: In a postfor the New Republic, Posner now contends that he is not “publicly recanting” his vote and that he has not “switched sides.” I agree with election-law expert (and voter ID-law critic) Rick Hasen, who finds Posner’s latest account “incredible.” For starters (as Hasen points out), in a recent HuffPost Live interview, Mike Sacks, after quoting the passage in Posner’s book, specifically asked Posner whether he thinks that he “got this one [the ruling in the Indiana voter ID case] wrong.” Posner’s response (at 9:08 of the interview) begins: “Yes. Absolutely.” He adds that he thinks the dissenting judge “was right.” (See Hasen’s post for the remainder of the response, none of which contradicts these excerpts.)
A month or so ago, a new book of mine, called Reflections on Judging, was published by the Harvard University Press. I have been a federal court of appeals judge since 1981, and over this extended period I have become acutely conscious of certain deficiencies of the federal judiciary, and those deficiencies are the principal focus of the book. To my considerable surprise, one sentence—I should have thought it entirely innocuous—in the book has received unusual attention in the media and blogs, much of it critical. The sentence runs from the bottom of page 84 to the top of page 85, in a chapter entitled “The Challenge of Complexity.” The sentence reads in its entirety: “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 type of law now widely regarded as a means of voter suppression rather than of fraud prevention.” (The footnote provides the name and citation of the opinion: Crawford v. Marion County Election Board, 472 F.3d 949 (7th Cir. 2007), affirmed, 553 U.S. 181 (2008).)
Judge Richard A. Posner, the judge who delivered the landmark decision that upheld voter ID laws in Indiana in 2007, has made legal history again. In his new book, Reflections on Judging, Judge Posner includes a single sentence admitting he made a mistake: “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.” Further extrapolating on his turnabout in an interview with HuffPost Live’s Mike Sacks, Judge Posner, who sits on the United States Court of Appeals for the Seventh Circuit, blamed the lawyers for not giving “strong indications that requiring additional voter identification would actually disfranchise people entitled to vote.” Posner further defended himself by saying that even the more liberal Justice John Paul Stevens wrote an opinion for the Supreme Court affirming Posner’s decision. Then Justice Stevens in an interview with the Wall Street Journal defended his decision in Crawford v. Marion County Elections Board and blamed the lawyers too.
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.
An unusual admission of regret by of one of America’s top judges throws new light on Queensland’s misguided attempts to tackle the non-existent problem of voter fraud. In a rare turnaround, Judge Posner of the United States Court of Appeals recently admitted that he was wrong in a landmark case he decided 7 years ago. Crawford v Marion County allowed the state of Indiana to require voters to show photo identification at the ballot box and was later upheld by the US Supreme Court. … Judge Posner’s turnaround should be on the mind of Queensland Attorney-General Jarrod Bleijie this week. Bleijie has announced plans to introduce laws requiring voters to produce identification in order to cast their vote at Queensland elections, making Queensland the only state or territory to have a voter ID requirement.
It is the kind of thought that rarely passes the lips of a member of the federal judiciary: I was wrong. But there was Richard A. Posner, one of the most distinguished judges in the land and a member of the United States Court of Appeals for the Seventh Circuit, saying he was mistaken in one of the most contentious issues in American politics and jurisprudence: laws that require people to show identification before they can vote. Proponents of voter identification laws, who tend to be Republican, say the measures are necessary to prevent fraud at the polls. Opponents, who tend to be Democrats, assert that the amount of fraud at polling places is tiny, and that the burdens of the laws are enough to suppress voting, especially among poor and minority Americans. One of the landmark cases in which such requirements were affirmed, Crawford v. Marion County Election Board, was decided at the Seventh Circuit in an opinion written by Judge Posner in 2007 and upheld by the Supreme Court in 2008.
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. Debate over the case was reopened last week when a federal appeals judge in Chicago repudiated his own 2007 opinion upholding the Indiana law. Judge Richard Posner wrote the 2-1 decision of the Seventh U.S. Circuit Court of Appeals that the Supreme Court, by a 6-3 vote, upheld the following year. “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 type of law now widely regarded as a means of voter suppression rather than of fraud prevention,” Judge Posner writes in his new book, “Reflections on Judging.”
Editorials: Thoughts on Judge Posner’s Admission of Error on the Indiana Voter ID Law | Paul M. Smith/ACS
As the lawyer who argued the constitutional challenge to the Indiana Voter ID law in the Supreme Court in 2008, I was both fascinated and pleased to hear that Judge Richard Posner – the author of the Seventh Circuit majority opinion affirmed by the Supreme Courtin Crawford v. Marion County Elections Board – has now publicly stated that he was wrong. It is refreshing, if not unprecedented, for a jurist to admit error on such a major case. I was a little less pleased to see that he attempted to excuse his error by blaming the parties for not providing sufficient information to the court. As he put it in an interview quoted in the New York Times, “We weren’t given the information that would enable that balance to be struck between preventing fraud and protecting voters’ rights.” Really? The information provided was enough for the late Judge Terence Evans, dissenting from Judge Posner’s decision, to say quite accurately: “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 folks believed to skew Democratic.”
So far the commentary on Judge Richard Posner’s expression of regret over his opinion in Crawford v. Marion County Election Board has featured the reaction of those who object to voter photo ID requirements and now feel vindicated. This is understandable, but if Posner just got it wrong, there is only so much left to say, and he might expect credit for his candor. But Judge Posner’s explanation of Crawford is unsatisfying, and it does not really get at the problem with the approach he took in that case. One difficulty with the explanation is that it is at odds with the larger point Posner wishes to make about the requirements of sound judging. This is his point: that judges don’t possess the information or knowledge to decide cases of a technical nature. About politics, he states, they can be positively “naïve,” as the Court was in Citizens United: they “enmesh themselves deeply in the electoral process without understanding it sufficiently well to be ale to gauge the consequences of their decisions.” Richard A. Posner, Reflections on Judging 84 (2013). It is in this context that he decides to “plead guilty” to having overlooked the partisan abuses of photo ID. Id. But he adds his doubts on the same grounds about recent campaign finance decisions and about political gerrymandering which, he states, is “a practice that in conjunction with the Court’s endorsement of promiscuous campaign donations seems to have poisoned our national politics.” Id.
When the United States Court of Appeals for the 7th Circuit in Chicago issued a critical ruling defending the constitutionality of Voter ID laws, Judge Richard Posner authored the decision. The arguments Judge Posner made for upholding Indiana’s Voter ID law framed the some of the key underpinnings for the 2008 decision of the US Supreme Court that, since it was issued, has been employed as a justification for similar initiatives in states across the country. According to the National Conference of State Legislatures, “a total of 34 states have passed voter ID laws of some kind.” Not all of those laws have been implemented, with a number of them facing court challenges. So it should count for something that Judge Posner now says that he was mistaken in his determination. Indeed, the judge’s rethink ought to inspire a national rethink — about not just Voter ID laws but the broader issue of voter rights.
A federal appeals court judge said Friday that he erred when writing a decision which served as a key precursor to the Supreme Court’s 2008 ruling upholding the constitutionality of Indiana’s voter ID law. 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. “Do you think that the court got this one wrong?” HuffPo’s Mike Sacks asked. “Yes. Absolutely. 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.”
Editorials: Conservative Judge Richard Posner Bashes Supreme Court’s Citizens United Ruling | The Daily Beast
The American political system is marked by legal corruption in which “wealthy people essential bribe legislators” with campaign contributions, according to one of the nation’s most influential federal judges. Speaking to foreign educators, Judge Richard Posner told the assembled that the wealthy give lots of money to legislators and that an individual legislator “knows that if he doesn’t promote the interests of the donor,” he won’t get any more money. Posner is a renowned member of the Chicago-based Seventh Circuit Court of Appeals. He is not only the nation’s most prolific jurist-academic, he is seen by some as the most influential judge outside of the nine members of the U.S. Supreme Court.