With 20/20 Hindsight, Posner Says Crawford Was Wrongly Decided

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By Gabriella Khorasanee, JD on October 14, 2013 1:01 PM

It takes a big person to admit when they are wrong, and last week, Judge Posner did just that.

In 2007, Judge Posner wrote the Crawford v. Marion County Election Board decision, which upheld an Indiana voter ID law requiring voters to show valid ID when voting at a polling place. In 2008, the Supreme Court affirmed Judge Posner's Crawford decision.

20/20 Hindsight

Earlier this year, Judge Posner released his 40th book, "Reflections on Judging" in which he states:

I plead guilty to having written the majority opinion (affirmed by the Supreme Court) upholding Indiana's requirement that prospective voters prove their identity with a photo id --a law now widely regarded as a means of voter suppression rather than fraud prevention.

Last Friday, in an interview with Mick Sacks of HuffPost Live, Sacks posted the quote above on a screen and in response to whether he got Crawford wrong, Posner stated, according to a transcript of the interview on Election Law Blog:

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.

The Lasting Repercussions of Crawford

We are still feeling the effects of Crawford today, especially in light of all the new voter ID laws popping up across the country since the Supreme Court recently struck portions of the Voting Rights Act of 1965 in Shelby County v. Holder. Interestingly, Judge Posner also criticized the Shelby decision in an article for Slate where he stated: "The opinion rests on air." There is a ray of hope for voting rights activists, however, because Crawford rejected a facial challenge to a statute, leaving open an "as applied" challenge.

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