Judge in Landmark Case Disavows Support for Voter ID
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.
In a new book, “Reflections on Judging,” Judge Posner, a prolific author who also teaches at the University of Chicago Law School, said, “I plead guilty to having written the majority opinion” in the case. He noted that the Indiana law in the Crawford case is “a type of law now widely regarded as a means of voter suppression rather than of fraud prevention.”
Judge Posner, who was appointed by President Ronald Reagan in 1981, extended his remarks in a video interview with The Huffington Post on Friday.
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.
The dissent by Judge Evans, who died in 2011, began, “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.”
In a telephone interview on Tuesday, Judge Posner noted that the primary opinion in the 2008 Supreme Court decision upholding the law had been written by Justice John Paul Stevens, “who is, of course, very liberal.” The outcome of the case goes to show, he said, that oftentimes, “judges aren’t given the facts that they need to make a sound decision.”
“We weren’t given the information that would enable that balance to be struck” between preventing fraud and protecting voters’ rights, he added.
Richard L. Hasen, a law professor at the University of California, Irvine, and an expert on election law, said an admission of error by a judge is unusual, and “gives to Democrats an ‘I-told-you-so’ ” argument on voter identification issues.
More significant, he said, it reflects what he called a recent shift. Previously, cases were decided largely along party lines, but then “you started seeing both Democratic- and Republican-leaning judges” reining in voter identification requirements.
Judge Posner seemed surprised that his comments had caused a stir, and said much had changed since Crawford. “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 in the interview. “One wasn’t alert to this kind of trickery, even though it’s age old in the democratic process.”