Justice [Update: err, Judge] Posner has admitted that his opinion in Crawford v. Marion County was wrong, Though, he couched his error by saying that he was not presented with a full factual record, and that he had no idea that Voter ID could be used for such nefarious purposes.
So what’s the next shoe to drop? Of course, Justice Stevens wrote the opinion for the Court affirming Judge Posner. Stevens’s opinion acknowledges the potential abuses for Voter ID, but upheld the program. Will Justice Stevens opine that either his opinion was wrong, or that he didn’t have enough facts to fully appreciate the consequences of the law?
For what it’s worth, a lawyer from Indiana who was familiar with the case said there was more than enough facts in the record to establish these problems–instead the court placed the burden on the challengers, rather than on the state to establish the need for their program despite its cost:
For Judge Posner now to admit he was wrong but then blame the lawyers for not giving him enough information by which he could evaluate the suppression claims takes real chutzpah. He was well aware of the history of race and class-based voter suppression in this country. He also had no record of voter fraud in front of him, yet placed no burden of proof on the State while holding Crawford’s attorneys to an impossible standard.And if they presented him with such an anemic record, why did Judge Evans, and later Judges Wood, Williams and Rovner en banc, who looked at the same evidence, get it right while Posner got it wrong?
And a comment from the lead counsel for the Indiana Democratic Party:
Though my client brought this suit as a pre-enforcement facial challenge, it is untrue to state or imply that the record contained no evidence from or about voters who’d be disenfranchised or unnecessarily burdened by the law’s requirements. If anyone would take the time to review the voluminous record of affidavits, deposition transcripts, and declarations submitted in support of our summary judgment motion, as well as by the ACLU which represented several individuals and associations, it will be obvious that the problem with Posner’s ruling was not the lack of evidence but that, as he now concedes, he applied the wrong legal standards, including a too strict burden on the Plaintiffs and no burden whatsoever on the State to prove that the “problem” the State sought to ameliorate (imposter voting) existed. He also made no effort to inquire whether the new law would unnecessarily burden or even disenfranchise more voters than the number of imposters it would deter or detect. Not only did the record before the district court, which is accessible at no cost here, http://moritzlaw.osu.edu…litigation/indy-dems.php
include a large number of affidavits from voters who did not have and would be unable to obtain a photo ID, it included expert testimony including from a renowned political scientist at Indiana University who opined, without contradiction, that this law would increase the costs associated with voting and thus have an adverse impact on turnout.
Judge Posner’s admission of errer is indeed a stunning one. Had he switched his vote, the Indiana law would have been declared unconstitutional, and the odds that SCOTUS would have granted cert. would have declined exponentially, given Posner’s prodigious reputation. In short, there would have been no Crawford decision handed down by SCOTUS in 2008 and many other voter suppression laws subsequently enacted would not have enjoyed the broad license many now (though wrongly) claim Crawford provides.