Seventh Circuit Court of Appeals Judge Richard Posner now says that he got it wrong in his 2007 opinion upholding Indiana's voter I.D. law. The decision was affirmed in 2008 by the U.S. Supreme Court in an opinion authored by Justice John Paul Stevens. Stevens told the Wall Street Journal last week that he stands by his decision, which he called "state-specific and record-specific," despite his concerns with the proliferation of voter I.D. laws He said that at the time of the Indiana arguments, the Justices understood that the Indiana law had been enacted by a party-line vote and "it was perfectly clear the Republicans thought they would get an advantage out of it." But, he said, "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."
Posner revealed his change of heart in a new book, Reflections on Judging, in which he writes "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." Posner fails to credit the advocacy of the law's defenders for persuading him to uphold the law, appearing instead to blame the attorneys arguing against the law for failing to tell him what he needed to know:
We weren’t really given strong indications that requiring additional voter identification would actually disenfranchise people entitled to vote.
The lead counsel for the challengers to the law, William Groth, responded:
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.
Indiana Law Blog posts a similar assessment from an attorney "familiar with the case":
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?
This is all very interesting stuff, of course, to lawyers interested in voting rights cases, and so Posner's change of heart has gotten lots and lots of media play (see this link for a sample). But isn't it worth giving at least a little thought to the meaning and implications of judges publicly second-guessing their own decisions in a nonjurisprudential forum, when the decisions themselves continue to live, and perhaps subsequently evolve and die, exclusively within a jurisprudential universe? Are Posner's remarks intended primarily as expiation -- a juicy footnote in the biography of an impressive legal figure -- or are they intended as political speech aimed at influencing the course of future decisions on voter i.d. issues?
Photo: Richard Posner, from Wikipedia, attributed to chensiyuan