Fed Appellate Judge Recants: We Blew Voter ID Opinion

Authoring Judge of Voter ID case recants

Republican Party Voter Obstruction Project Could Be Heading for Trainwreck

Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit (1981-present) is a sitting justice who writes a column for Slate Magazine and regularly intones on the abundant rightwing, judicial idiocies of our time.

In an amazing, audacious and perhaps bizarre interview featuring Posner and Mike Sacks (Host/Producer with HuffPost Live) first reported by Rick Hasen, Posner has recanted his 2007 decision in Crawford heard before the U.S. Court of Appeals for the Seventh Circuit, and authored by Posner, affirmed by the U.S. Supreme Court in 2008.

 "The purpose of the Indiana law is to reduce voting fraud, and voting fraud impairs the right of legitimate voters to vote by diluting their votes," Judge Richard Posner wrote in his majority opinion in 2007, affirmed by the U.S. Supreme Court in CRAWFORD v. MARION COUNTY ELECTION BD. (Nos. 07-21 and 07-25) (2008).

Posner has now publicly recanted his opinion.

The Brad Blog reports, "This is nothing less than remarkable. The 7th circuit court judge who wrote the majority opinion in the landmark Crawford v. Marion County Election Board case, has now admitted he got it wrong! 'I think we did not have enough information," Judge Richard Posner said in remarks today. "If the lawyers had provided us with a lot of information about the abuse of voter identification laws, this case would have been decided differently.'"

Posner made his comments in an interview with Mike Sacks discussing jurisprudence and Posner's new book, Reflections on Judging (Harvard University Press, 2013).

Writes Hasen:

In response to Mike Sacks’s questions about whether Judge Posner and the 7th circuit got it wrong in Crawford case, the one upholding Indiana’s tough voter id law against constitutional challenge (Posner says):

'Yes. Absolutely. And the problem is that there hadn’t been that much activity with voter identification. And … 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. There was a dissenting judge, Judge Evans, since deceased, and I think he is right. But at the time I thought what we were doing was right. It is interesting that the majority opinion was written by Justice Stevens, who is very liberal, more liberal than I was or am ... But I think we did not have enough information. And of course it illustrates the basic problem that I emphasize in book. We judges and lawyers, we don’t know enough about the subject matters that we regulate, right? And that if the lawyers had provided us with a lot of information about the abuse of voter identification laws, this case would have been decided differently.'

Here’s the quote from Posner’s book, which Mike Sacks flashed on the screen: '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.'

The repercussions for protecting voter rights of Americans against the Republican and Tea Party are stunning.

The whole nationwide Republican Party project of obstructing the voting of Americans could be in dire jeopardy.

This is because Crawford is the landmark case that, for example, the Wisconsin DoJ, Scott Walker and even the historically (and formerly) non-partisan Wisconsin Legislative Reference Bureau (and every other GOP state hack) have hyped (erroneously) as the controlling legal case on challenges to the GOP's photo voter-obstruction statutes.

The Crawford case was challenged as unconstitutional on its face, so no evidence was presented demonstrating how voters were obstructed.

This lack of the evidence will not be a problem in Wisconsin.

In Wisconsin, two federal challenges to the state Voter ID law are set to heard on November 4: Frank v. Walker, (Case 11cv1128), (U.S. District Court for the Eastern District of Wisconsin) and Jones et al v. Deininger et al (Case 2:12-cv-00185), (U.S. District Court for the Eastern District of Wisconsin).

There is a mountain of social scientific evidence accumulated in Wisconsin Courts in state cases and by the federal plaintiffs demonstrating how voters were intended by this GOP legislation and the practice of the legislation to be obstructed from voting.

Look for a federal decision finding that Act 23, Wisconsin's Photo Voter ID law, is discriminatory and not supported by valid neutral justifications.

Mike Sacks interview with Judge Richard A. Posner: