Some voters are more important than others:
Two weeks ago, Richard Posner, one of the most respected and iconoclastic federal judges in the country, startled the legal world by publicly stating that he’d made a mistake in voting to uphold a 2005 voter-ID law out of Indiana, and that if he had properly understood the abuse of such laws, the case “would have been decided differently.”
For the past ten days, the debate over Judge Posner’s comments has raged on, even drawing a response from a former Supreme Court justice.
Judge Posner claimed, during an Oct. 11 interview with HuffPost Live, that at the time of the ruling, he “did not have enough information … about the abuse of voter identification laws” to strike down the Indiana statute. But he also said the dissenting judge on the panel, Terence Evans, had gotten it “right” when he wrote that the law was “a not-too-thinly-veiled attempt to discourage election-day turnout” by certain voters who tended to vote Democratic. (It was passed on a straight party-line vote by a Republican-controlled legislature.)
Last Thursday, former Supreme Court Justice John Paul Stevens sounded several of the same notes, telling the Wall Street Journal that while he “isn’t a fan of voter ID,” his own 2008 opinion upholding Judge Posner’s ruling was correct — given the information available at the time. Incidentally, Justice David Souter dissented for roughly the same reasons as Judge Evans, and Justice Stevens now says that “as a matter of history,” Justice Souter “was dead right.”
In other words, both the Seventh Circuit and the Supreme Court got the balance of burdens wrong, as Indiana University law professor Fran Quigley rightly noted. Given that voting is a fundamental right, Quigley wrote, “the burden should have been on the State of Indiana to prove the law was necessary, not the challengers to prove how it would trigger abuse.”
Judge Evans put it more pungently in his 2007 dissent, saying the law was effectively using “a sledgehammer to hit either a real or imaginary fly on a glass coffee table.”
Rather than acknowledge this reality, Judge Posner’s original opinion dismissed the importance of the voters’ claims, contending that since no election gets decided by a single vote, the “benefits of voting to the individual voter are elusive.”
I’ve written about this twice before and some commenters (understandably angry) said that it doesn’t matter what Posner (and Stevens) say now because the deed is done.
It does matter, because we’re finally reaching the heart of this dispute. The conservative view on voting never made any sense. Voting is so unimportant that it doesn’t matter if people (here and there, whatever) are wrongfully disenfranchised AND so important that we need ever-increasing restrictions to “fight fraud.”
If one fraudulent vote is such an insult to the system that even the chance of that occurring justifies more and more restrictions, then one wrongfully disenfranchised voter is also vitally important and should justify protections. They can’t have it both ways, and they didn’t. They had it one way. Their way.
Their votes are important and can’t be “diluted” by the rest of you riffraff and their faith in the validity of elections is central and can’t be threatened even in the abstract, but your vote or your faith in the validity of elections when voters are disenfranchised? Get over it.
Just Some Fuckhead, Thought Leader
Some votes are more important than others, on a case by case basis. *wink*
The Snarxist Formerly Known as Kryptik
My take on the matter, much as it means anything, is that it doesn’t “mean” anything in that, the new precedent is now set, and tends to be a lot harder to overturn precedent than uphold it. The deed is done, and now it means that, even if the paradigm is shifting on the debate level, the Voter ID hacks might still win by default if the future rulings end up a push.
The quote with Quigley notes this: it SHOULD’VE been on those challenging voters on grounds of abuse rather than those asking proof of said abuse. But now thanks to the ruling, the opposite is now what we have to prove.
BruinKid
Speaking of voting and the riffraff they don’t like, turns out the Tea Party challenger in Mississippi to Sen. Thad Cochran (R) is a neo-Confederate secessionist. Or at least he seems to pal around with them quite a bit, even hosting their secession parties.
So of course Jim DeMint’s Senate Conservatives Fund and Pat Toomey’s former group Club for Growth endorsed this nutjob.
zoot
someone should point out to republicans that their voter ID laws are as strong a case as there is of over regulation. But then again regulation is a republicans’ best friend and THE most important thing when it suits their purpose (of voter suppression)
SFAW
As the Rethugs’ idol, Uncle Joe, said: “one wrongfully disenfranchised voter is a tragedy; a million is a Republican victory.”
feebog
The fact that all of these voter ID schemes are voter suppression tactics aimed squarely at minorities and poor people is self evident. One only has to be aware of over 100 years of voter suppression in the south to figure it out. That said, I do think these mea culpas do have some effect on judicial thinking. In the future, some judge, somewhere, may take their remarks under consideration and rule differently than he/she might have otherwise.
Alison
Oh, but having it both ways is a hallmark of conservative thinking.
“We need smaller government! Oh and the government should also decide what medical procedures you can have, who you can marry, and also let’s spend a kajillionty dollars on bombs and war!”
“Government is awful and needs to go away forever and we would get rid of all these departments if we could! Oh and the shut-down was so terrible and isn’t Obama just the worst for making it happen and keeping you from seeing a war memorial for a few days??”
“Fetuses are the most important things ever! Oh and stop asking for food stamps and assistance, you pregnant welfare-queen moms and your moocher kids!”
They have zero compunction about constantly talking out of both sides of their mendacious, drooling mouths…
srv
How did all those people ever manage to vote before there were photographs.
Where is ID in The Constitution?
J
OT but likely to be of interest.
This is disgusting, but hardly surprising
digbysblog.blogspot.com/2013/10/im-sure-feeling-was-mutual.html
“In a ‘negotiation’ meeting with the president, one GOP House Leader told the president: ‘I cannot even stand to look at you.'”
— Senate Majority Whip Dick Durbin (D-IL)
Time to name names!
Anoniminous
Typical Republican:
Fuck off Posner. You did it. You own it.
Gene108
I think the point about voter disenfranchisement was made in Florida, in the 2000 Presidential election. Keep enough of “those people” from voting and your idiot candidate can win.
Everything else is derivative.
Also, too I am incredulous that JPS,, who heard Bush v Gore cannot fathom how dirty electioneering tricks are used to push an election to favor Republicans.
Edit: The lack of voter outrage about “those people” not being able to vote is as much of a problem in making these ID laws possible.
Elizabelle
Kay: I sent you a link about the “Interstate Voter Registration Crosscheck.” Heritage Foundation article by our beloved Hans von Spakovsky. Mandatory Voter Registration: How Universal Registration Threatens Electoral Integrity.
Turns out Kris Kobach, Kansas’s Krazy Secretary of State and scourge of illegal aliens anywhere in our homeland, is its guiding spirit. (One of his four daughters is named “Reagan”.) Here’s his PDF on Crosscheck.
The Crosscheck is at the root of last week’s purge of 38,000+ voters in Virginia, after registration deadlines had passed.
Oh well.
Lex
Denying a person his civil rights under law is a federal crime, even if you’re an official acting under color of law. One might have thought Posner and Stevens would have considered that fact, even at the time.
Omnes Omnibus
@Anoniminous: Posner is owning it. He is saying was wrong.
a hip hop artist from Idaho (fka Bella Q)
@Anoniminous:
Exactly. Weaseling around blaming counsel won’t change that. (Apologies to weasels, which are unfairly maligned in this and other such remarks). But as Kay notes, it finally gets to the crux of the issue.
It won’t help, but it’s at least out there. Of course, an Ohio county is facing a $920K legal fee award for fighting (to the 6th Circuit and back) a US District Court order to count more provisional ballots than the GOP believed would be helpful to their candidate. They were correct that the provisionals weren’t in favor of the GOP. But the opposition to counting them was a needless expense. And shameful, but, we knew that some votes count more than others.
@Omnes Omnibus: Yes, he is saying that, but what does it really do? Beyond get the reality of the effect out in the open, which is not inconsiderable.
Kay
@Elizabelle:
Thanks so much. My two favorites. This is the cartoon villain, Hans:
He’s completely full of shit. There are two giant federal laws that govern aspects of election administration, motor voter and the HAVA.
I know mandatory universal registration terrifies them because they’re inherently anti-democratic, but every county in the country already has to follow a whole set of federal laws in elections.
Tissue Thin Pseudonym (JMN)
@The Snarxist Formerly Known as Kryptik:
I’m wondering if a part of the subtext to Posner’s comments is, “Please bring me a new case so I can overturn my previous decision.” And I hope someone takes him up on that.
Omnes Omnibus
@a hip hop artist from Idaho (fka Bella Q): Posner is influential. It may make a difference to future suits. It may affect people’s thinking. Of course, it would have been vastly better if Posner had gotten right when it mattered. But he didn’t.
Hell, this should be a lesson for the GOP in how to admit that he was wrong. Most of the time they just double down.
kindness
While I am glad that both esteemed ex-judges now admit they decided this wrongly based on knowledge they know now and claim to not have known then, neither can any longer do anything about it as they are both ex-judges. And in the current scheme of things those members who currently sit on the benches do not give the musings of those who don’t any weight when making judicial calls. I wish they would but they don’t. And so long as we are being honest about it, this Supreme Court does not decide cases on their judicial merits so much as the political aspects the justices agree or disagree with as far as the 5 conservative justices practices seem to indicate.
burnspbesq
This is the inherent problem with pre-enforcement facial challenges to newly enacted statutes: by definition, plaintiffs have no data to back up their claims.
Posner was right then, and he’s right now.
The answer is to go back to court, and if the state says “res judicata,” the answer is “there’s new data.”
Omnes Omnibus
@kindness: As far as I know, Posner is still on the bench.
Mike G
@Anoniminous:
Oopsy! I made a “mistake” that just happens to benefit my side of the political aisle at the expense of everyone else! Heavens to betsy, what a coincidence! Oh well, nothing to be done now!
Kay
@a hip hop artist from Idaho (fka Bella Q):
I haven’t read your email yet, but I will. Congrats on Medicaid expansion! I know you worked on it.
Sherrod Brown is coming in an hour. He’s having a meeting with “supporters” out here in the boonies. He set it up during shutdown but had to cancel so this is the reschedule. I’m sure he’ll talk about Medicaid because rural hospitals lobbied hard for it. I’m curious if our Wall Street Journal-letter writing hospital CEO will show up, Mr. Small Government.
burnspbesq
@Anoniminous:
The problem with your wonderful theory is that there wasn’t any evidence of discriminatory intent.
In North Carolina, there is evidence of discriminatory intent. In Texas, there is evidence of discriminatory intent.
Facts matter in litigation, and they have to be proven by admissible evidence.
“Any fool can see” isn’t evidence.
Waspuppet
It’d be nice if someone pointed out that he just destroyed the entire “intellectual” underpinnings of Robertsism right there, by admitting that a judge can and should consider the real-world implications of his decisions, a responsibility which good ol’ “Balls and Strikes” abdicates (when convenient).
Omnes Omnibus
@Mike G:
Not true. As burnsie noted above, filing a new suit with actual data showing that the law has the actual effect that the plaintiffs in the original case were arguing that it would have is perfectly possible.
Belafon
Did you see the story about Judge Sandra Watts here in Texas has been flagged for possible voter fraud because the middle name on her license (her maiden name) doesn’t match the name on the voter rolls (her actual middle name)? It’s the first time in 49 years she’s had trouble voting.
Anoniminous
@Omnes Omnibus:
So who cares he’s crying crocodile tears now? What’s the recourse? He can’t vacate (right word? (IANAL)) his own decision unless it comes before him again. (?)
xenos
@burnspbesq: Still does not explain how he got the burden of proof backwards. Every argument he accepts now was in the pleadings and discussed in the dissent.
Anoniminous
@burnspbesq:
But “Reasonable Person” is.
Or was. IANAL and so do not follow current admissible arguments.
handsmile
@Omnes Omnibus:
According to Posner’s UChicago faculty page, he remains a judge on the US Court of Appeals for the Seventh Circuit (and a senior lecturer in law at the university.)
The final paragraph of the NYT opinion piece excerpted by Kay for this post wryly proposes how Judge Posner might consider his rulings on “future suits” (a hope advanced by commenter TTP above, #17):
“Particularly in light of the Supreme Court’s decision in June gutting the Voting Rights Act, it would be nice if Judge Posner extended his fuller understanding of the true nature of voter-ID laws to his legal opinions, and not simply to online interviews.”
Omnes Omnibus
@Anoniminous: And Cole can’t take back his votes for Bush, and so on. Posner is an influential legal theorist. If he is going public with this, it should have some effect.
What’s the recourse, you ask? Filing a suit and using data to show that the law does disenfranchise people.
Violet
@Belafon: Moral of the story: do not change your name when you get married. It’s a pain in the ass for everything from drivers licenses to voting to passports and more. Just keep your name.
Kay
@handsmile:
The National Review had a devastating rebuttal. “He said he was wrong last time, what if he’s wrong again?”
Check and MATE, Judge Posner! They got ya there.
xenos
@Omnes Omnibus: Are you talking about a reconsideration? I am not too conversent on the FRAP, but it has got to be too late for that.
A totally new case due to some new evidence? What new evidence? Of disparate effect? Like that was not obvious from the beginning, when there was testimony about how different communities have different access to whatever credentials the state would demand?
I haven ot looked at this case in ages, so maybe I don’t remember it clearly enough, but this was all out there in the briefs. Maybe not proven as an existing fact, but clearly spelled out and set in balance against a clearly phantasmic harm. None of that has changed, has it?
Omnes Omnibus
@xenos: I agree with you and disagree with burnsie. Posner got it wrong then – pure and simple, no excuses. He has, commendably, changed his mind and has it right now. This will probably mean that if he is on any panel hearing a future case, the GOP will be calling for him to recuse himself.
raven
@Violet: We did that and I thought the lil old ladies at the courthouse in small town Virginia were going to faint!
a hip hop artist from Idaho (fka Bella Q)
@Omnes Omnibus: That’s exactly my problem with it. he’s said he was wrong while at the same time conveniently eliminating the possibility that he can get it right in the future. Which is not to discount the idea that actual data in a new case will be successful, but another panel may still view it the way Posner did, and he won’t be on it, having already declared his view.
West of the Cascades
@burnspbesq: If I recall correctly, there also wasn’t much evidence of actual discriminatory effect in Crawford – that is, evidence of how Voter ID laws had actually resulted in denying people the right to vote. Instead, likely discriminatory effect was inferred statistically. This, from the Wikipedia entry on the case: “At trial, the plaintiffs were unable to produce any witnesses who claimed they were not able to meet the law’s requirements” (too lazy to fire up Westlaw this morning).
At this point, eight years after these laws started to rear their ugly heads, there ought to be ample evidence of how these laws have had actual discriminatory effect and resulted in an inability (or severe burden) for specific individuals to obtain the required IDs. That should help in any future challenges to the NC and TX laws (and any others) — and having Posner and Stevens disavow their decisions ought to give judges evaluating those cases a little more to think about when determining the relative burdens on individual voters vs. the fictitious dilution of voting “integrity” that justified the photo ID requirement. The fact that there have been so few instances of actual voter fraud in the five years since the Supreme Court’s decision should also be a factor that new plaintiffs’ lawyers ought to try to raise.
jenn
I guess I don’t understand the Posner hate on this. He fucked up, and is not only admitting he fucked up, he’s publicizing the fact that he fucked up. Isn’t this what we WANT people in his position to do?
Omnes Omnibus
@xenos: As I understand Posner’s recent statements, the arguments about people being disenfranchised were theoretical. No one had been denied a vote. The majority of the panel, including Posner, said, “Pshaw!” to those arguments. Now that the law has been in effect and people have actually been disenfranchised, it is no longer theoretical. There is hard data. It is new evidence. I think a new case is perfectly reasonable.
Napoleon
Personally I think what Posner did is huge. You just don’t have judges doing what he did very often, and on top of it he really is a prominent conservative.
xenos
@Omnes Omnibus: I am glad to hear it. I can’t wait to see what rationales will be developed over at Volokh.com for barring such a suit because this was obvious at the time.
artem1s
this is gonna be the next litmus test for nominees to the supremes. it trumps pretty much everything else.
rikyrah
stay on it, Kay
handsmile
@Kay:
With such a denunciation, I’d have to imagine that Judge Posner’s letter of resignation from the Court is already in the mail.
And lookee here!. Chuck Lane, legal thumbsucker for Amazon Prime Daily, chastises Posner for his, um, shrillness: “A judicial mea culpa better left unsaid.” (interested readers can find their own damned link)
When Villago’s tumbrels get wheeled out, Chuck Lane deserves one all to himself.
Omnes Omnibus
@handsmile: Good god, Lane hasn’t published a sensible word in years.
Chris
@kindness:
I was so focused on the “mea culpa” I didn’t even notice the “ex” in front of the word “judges” till now. Christ.
I tend to very sincerely dislike people who are doing harm the entire time that they’re in a position to actually do something else… and then, once it’s all over but they want to put in a nice word for their “legacy,” suddenly do a mea culpa.
Eisenhower denouncing the military-industrial complex would be another such instance (being that he did it in his farewell address, after riding the Red Scare into power and happily growing the MIC during his eight years in office).
George Washington freeing his slaves – at the moment of his death – would be another.
“Well, now that I don’t benefit from my sins anymore, I suppose there’s no longer any harm in admitting that they were, in fact, sins, and, uh, I guess you younguns have your work cut out for you trying to clean them up! LOLOLOL ok bye now.”
Chris
@Mike G:
Or what you said.
drkrick
@xenos:
The original case was pre-implementation, so the briefs would have been talking about presumed effects. In a new challenge, actual effects can be documented. I would assume that would count as new facts, even if the facts buttress what were predictions before.
Omnes Omnibus
@Chris: Posner is still a sitting judge. kindness is wrong.*
*Teehee.
Chris
@Omnes Omnibus:
FOILED again!
… and right after the editing time was up, too.
jenn
@Chris: (a) Posner’s still a judge, (b) so you’re saying it would have been better for Washington to have NOT kept his slaves? I figure it made a pretty damn big difference to them. It would have been better had Ike not made his speech about the MIC at all? I can’t help but feel you’re judging people who actually did something more harshly than those who did nothing at all.
Napoleon
@Chris:
Posner is still on the bench.
Chris
@jenn:
I know (now I do). I accept Omnes’ correction. And yours.
No, I’m saying he was an asshole for having used them his entire life and not released them until right up at the point where he no longer needed them.
No, it would’ve been better if Ike had actually made a stand against the military industrial complex at a time when such a stand could actually have made a difference in terms of the public policies that actually govern that military-industrial complex, instead of simply remaining what it’s been ever since, a pretty speech that was never translated into policy by anyone.
How do you figure? Which part of my post said anything about how I judged people who did nothing at all?
LanceThruster
It used to be, “It’s not who casts the vote…”
Now they’ve managed to leapfrog the whole process.
DIAF!
[sigh]
Mnemosyne
@jenn:
I think what Chris is saying that words or actions taken after the fact aren’t that much better than never doing anything at all. Lee Atwater repented of his race-baiting actions as he lay dying, but that didn’t repair the damage he’d already done. With Washington, IIRC his will said that the majority of his slaves would be freed after his widow Martha’s death, though she ended up freeing them early out of (justified) fear that one of them might decide to hurry her death along to gain everyone’s freedom sooner.
Maybe it’s the lapsed Catholic in me — repentance is good, but if it’s not followed by actions to repair the damage, it’s a little hollow.
The Snarxist Formerly Known as Kryptik
@jenn:
@Napoleon:
The problem is still that he and the assenting inverted what the burden of proof here should’ve been, in requiring that discriminatory effect be shown, rather than the proponents of the law showing the necessity of the law where the current law was failing drastically without directly affecting the eligible.
And now thanks to the ruling the burden of proof remains inverted and apparently will remain so until the precedent is undone.
Unless someone with better (read: actual) legal knowledge and reading would be so kind as to correct me if I’ve stumbled here.
kc
@zoot:
You can try that, but they always start shouting about how you have to show picture ID to write a check so what’s your problem with showing ID to vote? It just does not compute with them.
The Snarxist Formerly Known as Kryptik
@The Snarxist Formerly Known as Kryptik:
And to clarify, I meant better legal knowledge than myself, since, as should be the standard disclaimer in cases like this, I Am Not A Lawyer., and I know the dangers of laymen trying to sound like experts..
kc
@J:
“In a ‘negotiation’ meeting with the president, one GOP House Leader told the president: ‘I cannot even stand to look at you.’”
Fuck. Can you even IMAGINE if some Democrat had said that to Bush at any point in his presidency?
kc
@Belafon:
I’d like to see a whole lot of rich white people get flagged and blocked from voting. That’s basically the only way anyone in power is going to look critically at these laws.
LanceThruster
@kc:
Sad but true.
John Revolta
since no election gets decided by a single vote
FWIW, my State Rep. was elected by one vote back in 2010.
It recently came out that his uncle and aunt illegally voted for him in the wrong district. However, since he’s since been re-elected, nothing can be done…………………KC politics! Tom Pendergast would be proud.
jefft452
@jenn: “and is not only admitting he fucked up, he’s publicizing the fact that he fucked up”
No, he is blaming the layers for not giving him more convincing arguments
That said, you have a point.
In the words of Chris Rock “what do you want? A cookie?”
Maybe judges shouldn’t expect a cookie for admitting that their past badly reasoned decisions had incredibly horrible consequences, but we are where we are – give him his damn cookie
burnspbesq
@West of the Cascades:
Your recollection is consistent with mine. And as I said up at comment 20 or thereabouts, that’s the inherent problem with pre-enforcement facial challenges.
The Texas and North Carolina cases are different, because unlike Indiana Republicans, those whackaloons are too dumb to keep their mouths shut about what they’re trying to do. In the DC case involving the Texas maps, there was overwhelming evidence of discriminatory intent in how the boundaries were drawn.
In North Carolina, the Legislature received a report from the office that is in charge of administering elections, setting forth the view that the new legislation would disproportionately disenfranchise minority voters. With that report in hand, they voted for the legislation. Short of an email saying “we gotta fuck the ni*CLANG*s,” I don’t know how the evidence gets any better.
burnspbesq
@xenos:
He didn’t. In Section 2 cases, the burden is on the plaintiffs. Only in Section 5 cases is the burden on the state. And Indiana was never subject to pre-clearance.
Lurking Canadian
@kc: just as with Arizona’s “show your papers” law, the solution is to start harassing middle-aged white people on suspicion that they might be Canadian.
brantl
@burnspbesq:”If any fool could see it”, was our test, we would certainly use you as the test.