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You are here: Home / Open Threads / Judge Posner was wrong

Judge Posner was wrong

by Kay|  October 14, 20131:54 pm| 28 Comments

This post is in: Open Threads

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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:

“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.”

Of course, a lot has happened since Crawford. Many more states added voting restrictions and Justice Roberts stripped out protections that we had in the Voting Rights Act. Now have a new tactic directed at Latinos where we may have first and second- class voters.

I disagree with Judge Posner on his diagnosis of the problem. I don’t think it was a lack of subject matter knowledge, really – a lack of imagination comes closer. I think it’s a lack of interaction with a broad cross-section of people on a daily basis. The municipal court judge across the street is no expert on election process, but I think if I asked him “in your experience, do poor people who move a lot and lack reliable transportation have trouble producing valid photo ID?” he would say “yes.” He would go into it knowing that. Not everyone has a bank account and a driver’s license, and there is a huge group of people who will never, ever board an airplane. They should be able to vote without navigating an ever-changing thicket of laws.

via: Election Law Blog

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Reader Interactions

28Comments

  1. 1.

    schrodinger's cat

    October 14, 2013 at 1:56 pm

    He made the wrong decision but is now blaming it on the lawyers. Lovely. Is he a Republican?

  2. 2.

    srv

    October 14, 2013 at 2:02 pm

    If you have to show ID to buy a gun, you should have to show ID to vote.

    Someone needs to send Cleek to jail:

    U.S. District Judge David Bunning sentenced Pullen five months in prison and ordered him to pay $21,000 in restitution to the Internet company.

    Pullen said he would replace posts he considered racist or homophobic with something like, “I’m super fancy. Why don’t you call me fancy pants?”

  3. 3.

    Ruckus

    October 14, 2013 at 2:02 pm

    I have been hearing stories most of my life that tell me that a lot of judges have no idea about what a large portion of citizens lives are like at all. Judges are generally well paid, as they should be, but that means that it is much harder to connect with a sizable portion of the people that come before them or whose laws they judge. Yes those laws affect us all but many affect us differently depending on our “station” in life. Voting restriction laws are a case in point.

  4. 4.

    Baud

    October 14, 2013 at 2:04 pm

    Business groups make similar arguments about judges — that they just don’t appreciate business concerns. The difference is, their complaints are more likely to be listened to.

  5. 5.

    Kay

    October 14, 2013 at 2:05 pm

    @schrodinger’s cat:

    He made the wrong decision but is now blaming it on the lawyers.

    He’s got a point. Had they waited, they might have had more to show him to spur his imagination or done a better job educating him on the subject matter. Indiana and Georgia were in the first batch of laws.

  6. 6.

    Baud

    October 14, 2013 at 2:06 pm

    @Kay:

    Still would have been upheld 5-4, rather than 6-3.

  7. 7.

    schrodinger's cat

    October 14, 2013 at 2:09 pm

    @Kay: I am no lawyer so I defer to your expertise. It just sounded to me like a professor blaming his grad student for a mistake in the paper.

  8. 8.

    West of the Cascades

    October 14, 2013 at 2:14 pm

    @Kay: And (if I remember correctly) part of Justice Stevens’s opinion went out of its way to emphasize that it was based on the lack of an evidentiary showing in the specific Indiana case, rather than blanket endorsement of voter ID laws. Given the hard evidence of discriminatory effect of these laws in the last couple of years, more specific challenges with larger bodies of evidence are likely to convince judges like Posner who are willing to be persuaded. Facial, pre-enforcement challenges are the hardest to win because you have to rely on the prediction of likely harm, rather than showing actual harm. Now that we’ve had a couple of election cycles in which voters have been disenfranchised by these laws (bearing out the predictions, incidentally), judges are more likely to find voter ID laws unconstitutional.

    At least, I hope.

  9. 9.

    KG

    October 14, 2013 at 2:15 pm

    @schrodinger’s cat: there’s an old saying in the law, “bad facts make bad law.” The way the lawyers frame arguments – for a jury, a trial judge, or an appellate panel matter. Appellate opinions often point out that the panel’s knowledge of the case is generally limited to the record on appeal and the arguments made by the attorneys.

  10. 10.

    Botsplainer

    October 14, 2013 at 2:18 pm

    @srv:

    U.S. District Judge David Bunning sentenced Pullen five months in prison and ordered him to pay $21,000 in restitution to the Internet company.

    US District Judge David Bunning is the son of the odious retired Senator Jim Bunning (who read no newspapers and got all of his news from Fox when still in office). US District Judge David Bunning was a 35 year old (!) assistant US Attorney with no other legal or judicial experience when Bush nominated him in 2001.

    Clearly the finest, bestest, most experienced man for a lifetime appointment.

  11. 11.

    Roger Moore

    October 14, 2013 at 2:21 pm

    @srv:

    Someone needs to send Cleek to jail:

    There’s an important difference between allowing users to make changes to what their browsers show (what Cleek does) and hacking into the server and changing the posts there (which the defendant was convicted of doing). If you are incapable of grasping this difference, you are incompetent to comment on the instant case.

  12. 12.

    Snarki, child of Loki

    October 14, 2013 at 2:24 pm

    If you have to show ID to buy a gun, you should have to show ID to vote.

    But there’s the Vote Show Loophole.

    You know, when bunches of folks come together in previously scheduled locations, to all do their voting together.

    IOW, “an election”.

  13. 13.

    fuckwit

    October 14, 2013 at 2:24 pm

    They won’t be happy until only white straight male property owners can vote. Because those are the only “real Americans”.

  14. 14.

    Tokyokie

    October 14, 2013 at 2:25 pm

    The traditional test for government restricting a civil right was that it could only be done in pursuit of a legitimate state interest and could only be broad enough to accomplish that state interest. And here we are, with states passing increasingly restrictive measures in order to stop in-person voting fraud, a problem that basically doesn’t exist. But then, that “originalist” Tony the Chin doesn’t consider the right to vote a civil right.

  15. 15.

    Ruckus

    October 14, 2013 at 2:27 pm

    @Botsplainer:
    Clearly if all of the crazy conservatives in congress fell dead from stupidity all at once, tomorrow, we would still be feeling the effects of Reagan Critical Mass for years to come.

  16. 16.

    Keith G

    October 14, 2013 at 2:32 pm

    After the publication of The Other America, by Michael Harrington, it sure seemed there was a moment where the will to mitigate economic classism in this land was achieving a critical mass. Now we are heading backwards. Important forces here are working to further isolate the poor and rip away the tools they might use to have any influence in this society.

    It is most unsettling that few, if any, political leaders today seem inclined to champion the needs of the poor with the commitment of LBJ, Humphrey, McGovern, or the Kennedy’s. Without that leadership, it is easier for the courts and the press to play ignorant.

  17. 17.

    TriassicSands

    October 14, 2013 at 3:01 pm

    I think you’re right about the lack of imagination. Justice O’Connor was the queen of out-of-touch. Reading what she had to say about the butterfly ballot during the 2000 Florida electoral disaster is all one needs to do to understand that O’Connor knew virtually nothing of the people her decisions hurt. I don’t doubt that the same is often true — even for liberal judges. I see the same thing play out in blogs, where well-meaning so-called liberal bloggers fail to understand how something like the chained CPI or raising the age of eligibility for Medicare will play out for millions of people.

  18. 18.

    Another Holocene Human

    October 14, 2013 at 3:02 pm

    @srv: Of course. Hacking a computer account? Crime worse than rape. Threatening to shoot “libruls”? Just a spot of fun.

    That’s right, prosecute the guy who guerilla-moderated your lusers’ death threats. It’s not like threats of violence, death, and mayhem are illegal or anything.

    There’s a big aspect in anti-hacking law to BURN THE WITCH! who dared, DARED to expose big business’ shitty code.

    Remember, they prosecuted the brave citizen who exposed all those Stuebenville creeps who were bragging about the assault on Facebook. HOW DARE HE show up the cops.

  19. 19.

    Another Holocene Human

    October 14, 2013 at 3:04 pm

    @Ruckus: Born into wealth, but, if not, ostracized.

    And it is interesting how many judges are caught extorting sex or living secret double lives or stroking under their robes on the bench–just like convicted rapist Warren Jeffs.

    Like they have too much power and for a sadist it’s a feast.

  20. 20.

    Thoughtcrime

    October 14, 2013 at 3:06 pm

    Judge Posner is using the Condi Rice “no one could have imagined” defense.

  21. 21.

    Another Holocene Human

    October 14, 2013 at 3:07 pm

    @Roger Moore: Is hacking a server to alter some posts more serious than accosting someone in person and threatening them with a weapon? The punishment doesn’t fit the crime.

    It’s very telling the difference between the punishment for violence against a fellow prole and “violence” (actual or virtual) against a commercial entity.

  22. 22.

    Roger Moore

    October 14, 2013 at 3:25 pm

    @Another Holocene Human:
    I get your point, but I think that you’re missing mine. Regardless of whether you think the law is ridiculous, the guy in question was convicted of something that is actually illegal. Cleek is doing something different that is perfectly legal, so he shouldn’t be accused of being in the same boat.

  23. 23.

    Villago Delenda Est

    October 14, 2013 at 3:26 pm

    a lack of imagination comes closer.

    Well, comes closer, but the truth of the matter is, the Rethuglican judges are supporting Rethuglican political objectives, which are to disenfranchise by any means they can get away with groups that are unlikely to vote for Rethuglicans, because members of these groups have realized that Rethuglicans, if they could get away with it, would turn them into chattel.

  24. 24.

    a hip hop artist from Idaho (fka Bella Q)

    October 14, 2013 at 3:27 pm

    Not everyone has a bank account and a driver’s license, and there is a huge group of people who will never, ever board an airplane. They should be able to vote without navigating an ever-changing thicket of laws.

    You’ve nailed it with lack of imagination. It’s also quite correct that muni judges absolutely get this, because they see it every day. Lots of the folks (most?) who become jurists at the level of Judge Posner have lived very sheltered and provincial loves. The province of course, being Privilegeville.

    @Botsplainer:
    Clearly a crony appointment, but… Davide Bunning is much more moderate that his father. Or at least was as an AUSA. And a great deal smarter; a low bar to be sure. I had a couple of occasions to deal with him, and he was among the most reasonable AUSAs I’ve encountered. I was surprised by that, given his last name.

  25. 25.

    Tissue Thin Pseudonym (JMN)

    October 14, 2013 at 4:07 pm

    @Villago Delenda Est: In this particular case, not really. Richard Posner is definitely a conservative so I disagree with a lot of his premises but he has also shown a good deal of intellectual integrity in his time on the bench. So I take him at his word that he didn’t realize what would happen.

  26. 26.

    Calliope Jane

    October 14, 2013 at 5:12 pm

    Justice Stevens is very liberal? In today’s world, apparently, when he would of voted the same in Brown v Board of Ed., grumble, grumble, grumble. I miss his opinions, though.

    I heard Judge Posner speak at a torts conference back in (early) 2006 and he said at the outset that he didn’t want to talk politics (he had written that he was totally okay with what the Bush admin had been doing in their war on terror). I felt at that point that we really had a shot of taking back the House :)

    I’m surprised at his comments now, tbh. At the time of the Indiana law, I was (in another state in the, ahem, southwest) taking an election law class taught by state officials. They knew the people in Indiana involved in this and told us that the IN attorney general was not looking forward to defending this law — he didn’t want his name on a court case limiting voting rights. The instructors’ point was that we should feel sorry for the guy; when I asked why the attorney general was pushing a case he knew was limiting voting rights since there was no fraud to speak of — they didn’t have a response for me. They also didn’t like that I asked that question :/. Regardless, I’m on board with the fact that it was failure of imagination, lack of empathy, etc. Wasn’t this the case with the elderly nun that lacked transportation, ID, etc ? I think Roberts commented that it shouldn’t be a problem to change buses on the way to the DMV (he says, being chauffeured around town). Total lack of understanding how the world works but also lack of caring — they knew there were problems, but didn’t care that it would prevent some people from voting.

  27. 27.

    burnspbesq

    October 14, 2013 at 6:10 pm

    @West of the Cascades:

    Bingo! “Any fool can see” isn’t admissible.

  28. 28.

    jenn

    October 14, 2013 at 7:00 pm

    I disagree with the folks jumping on Posner for this. It’s the lawyers’ JOB to present their case. It doesn’t matter how imaginative/empathetic a person is, they’re going to have “d’oh! I didn’t think of THAT” moments from time to time. It’s the lawyer’s job to make sure that their judge doesn’t have that happen on their case. If the lawyer presents it, and the judge still can’t assimilate it, then that’s on the judge.

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