Monday, October 14, 2013

Identifying the Problem

Seventh Circuit Judge and noted polymath Richard Posner has come out and stated that he was "absolutely" wrong to have voted to uphold voter ID laws. Posner authored a 2-1 opinion in Crawford v. Marion County, later upheld by the Supreme Court, which affirmed the constitutionality of Indiana's voter ID requirement.
Yes [I got the Crawford case wrong. 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.
I don't necessarily disagree that there were, in fact, plenty of people who had the knowledge and imagination to understand how voter ID laws would act primarily to disenfranchise selcted classes of voters while doing virtually nothing to staunch the voter fraud non-issue. Nonetheless, Judge Posner deserves a nod of approval for admitting that he was wrong on such a high-profile issue. Between this and A Failure of Capitalism, Judge Posner has shown an admirable willingness to revisit his positions when new facts warrant it, and that is laudable.

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