Next time, clean those glasses before writing your ruling.
In his new book,
Reflections on Judging, 31-year veteran Judge Richard Posner of the federal judiciary's Court of Appeals for the Seventh Circuit
concedes that he screwed up in writing the majority opinion of a seminal voter ID case that has had far-reaching effects.
The case was Crawford v. Marion County Election Board. In 2005, the Indiana legislature passed a law requiring a voter to present a photo ID at the polls before being allowed to cast a ballot. Despite plaintiffs' insistence that this would keep some citizens without a proper ID from voting, the Seventh Circuit and the U.S. Supreme Court upheld the law. Subsequently, with Crawford as their shield, other states from Pennsylvania to Texas have added or tried to add a photo ID requirement for voting. All part of a concerted Republican effort to shave a few points off the turnout of demographics more likely to vote Democratic than not.
A 1981 appointee of Ronald Reagan who has acted like a moderate Republican on the bench even as he adopted right-wing Chicago School economic views, Posner now says what the Crawford ruling was about “is a type of law now widely regarded as a means of voter suppression rather than of fraud prevention.” In a video interview with the Huffington Post:
Asked whether the court had gotten its ruling wrong, Judge Posner responded: “Yes. Absolutely.” Back in 2007, he said, “there hadn’t been that much activity in the way of voter identification,” and “we weren’t really given strong indications that requiring additional voter identification would actually disenfranchise people entitled to vote.” The member of the three-judge panel who dissented from the majority decision, Terence T. Evans, “was right,” Judge Posner said.
Indeed, he was. Here is the no-nonsense crux of Evans's dissent:
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. We should subject this law to strict scrutiny—or at least, in the wake of Burdick v. Takushi, 504 U.S. 428 (1992), something akin to “strict scrutiny light”—and strike it down as an undue burden on the fundamental right to vote.
The percentage of eligible voters participating in elections has, for many years, been on a downward trajectory. With that being the case, one would think states should be looking for creative ways (like allowing people to vote at places they frequent and are familiar with, like shopping malls rather than basements of fire stations) to increase voter participation. Yet, the Indiana law we sanction today does just the opposite. Constricting the franchise in a democratic society, when efforts should be instead undertaken to expand it, is not the way to go.
The fig leaf of respectability providing the motive behind this law is that it is necessary to prevent voter fraud—a person showing up at the polls pretending to be some- one else. But where is the evidence of that kind of voter fraud in this record?
Unfortunately, Evans died in 2011 and isn't around to hear Posner admitting he was right all along. Not that the book-promoting judge is offering anything like an apology for the damage he caused by getting it wrong. The problem, he says, is that the court was not given enough facts to get it right. Given Evans's clear view of the matter, that's a thinly argued cop-out.