Oct 10, 2014

Richard Posner's Extraordinary Move to Sound the Alarm on GOP Voter Obstruction

Update: Republicans are not so certain about voters; enacting voter obstruction laws wherever they hold a majority, secure in the knowledge that federal Republican judges will reside in the Republican legislatures' "fact-free cocoon in which to lodge the federal judiciary." (Posner, Frank v. Walker; p. 26)
"Posner's dissent includes a devastating response to virtually every false and/or disingenuous rightwing argument/talking point ever put forth in support of Photo ID voting restrictions, describing them as "a mere fig leaf for efforts to disenfranchise voters likely to vote for the political party that does not control the state government." (Brad Friedman)
On the Court of Appeals for the Seventh Circuit known for its intellectual bulk, judges such as Easterbrook, Wood and Posner stand out.

What makes the public intellectual Richard Posner stand out more is this academic appointed by Ronald Reagan in 1981 has grown as a jurist, and now stands as a bulwark against the oppression the judiciary can inflict upon American citizens.

Posner as a sitting judge has taken the extraordinary step of requesting a rehearing on behalf of the five judges dissenting from Judge Easterbrook’s appalling opinion in Frank v. Walker.

The rehearing failed five-to-five.

The October 10 dissent authored by Posner is scathing and is certain to be noted when voting rights advocates take their consolidated cases to the US Supreme Court where a granting of cert is expected within 90 days.

Notes Posner:
The Practitioner’s Handbook for Appeals to the United States Court of Appeals for the Seventh Circuit states that 'en banc rehearing is authorized without a party’s invitation. A member of the court may ask for a vote on whether to rehear a case en banc.' I asked for a vote on whether to rehear the appeals en banc. The judges have voted, the vote was a 5 to 5 tie, and as a result rehearing en banc has been denied. We—the five who voted to grant rehearing en banc—believe that the decision to allow the panel’s opinion reversing the district court to stand, without consideration of the case by the full court, is a serious mistake.
Posner presents myriad arguments eviscerating the Easterbrook opinion, and as an example notes one bizarre element in Easterbrook's opinion that dismissed social scientific evidence introduced at federal trial last year because the evidence was published in the Harvard Law Review, a fact noted earlier this week by Rick Hasen.

Easterbrook refers to Judge Lynn Adelman, writing in his decision and order issuing a permanent injunction on April 29, 2014:

[O]ne of the plaintiffs’ expert witnesses, Barry Burden, a professor of political science at the University of Wisconsin–Madison, testified that the available empirical evidence indicates that photo ID requirements have no effect on confidence or trust in the electoral process. He described a study conducted by Stephen Ansolabehere and Nathaniel Persily and published in the Harvard Law Review which looked at the relationship between photo ID laws and voter confidence in the electoral process. See Stephen Ansolabehere and Nathaniel Persily, Vote Fraud in the Eye of the Beholder: The Role of Public Opinion in the Challenge to Voter Identification Requirements,121 Harv. L. Rev. 1737, 1756 (2008). Burden explained that this study employed multivariate analysis of survey data and found “zero relationship” between voter ID laws and a person’s level of trust or confidence in the electoral process. (p.18)

No relationship between voter ID laws and public confidence, the main argument advanced by Republicans in defense of their voter obstruction project after the occurrence of in-person voter fraud assertions by the Wisconsin DoJ were conceded not to exist during the 2013 trial in federal court.

This study is dismissed by Easterbrook.

Writes Posner:

"The panel opinion dismisses the Ansolabehere and Persily article on the ground that because it was published in the Harvard Law Review, it was not peer-reviewed. So much for law reviews. (And what about Supreme Court opinions? They’re not peer-reviewed either.)"

Posner goes on, as careful as Easterbrook is reckless in Easterbrook's "fact-free cocoon."

Concludes Posner:

"To conclude, the case against a law requiring a photo ID as a condition of a registered voter’s being permitted to vote that is as strict as Wisconsin’s law is compelling. The law should be invalidated; at the very least, with the court split evenly in so important a case and the panel opinion so riven with weaknesses, the case should be reheard en banc."

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