Friday, October 25, 2013
A post on which mistakes Posner actually made in Crawford:
1. Wrong standard of review.
2. Failed to address state constiutional claims.
There's been a lot written this week about Judge Posner's admission (in his latest book and in an interview with the New York Times) that he was wrong in Crawford v Marion County Election Board, the Indiana voter ID case. But I haven't seen anything that talks about -how- he was wrong, just the end result that he upheld the statute.
In the Indiana case, the district judge applied the wrong standard of review, rejected Plaintiffs' expert witness as speculative, and upheld the statute. The 7th circuit panel split 2-1, with Posner writing the opinion. The en banc panel of the 7th circuit split 5-4 to uphold Posner's ruling. The Supreme Court split 3-3-3, with 3 judges finding voter ID unconstitutional, 3 finding it constitutional, and the controlling opinion finding that plaintiffs lost on a technicality, that they had filed a facial challenge instead of an as-applied one. See Washington State Grange, McConnell v FEC. Along the way, mistakes were made by many. Judge Posner wasn't the only one who got it wrong, he is just the only one who has 'fessed up. Posner's role was key, being the deciding vote in the panel opinion and the en banc opinion, and being the gatekeeper as to what briefs were and weren't accepted.
Justice Stevens, interviewed in the WSJ, now says that he overall agrees with the dissent, but stands by his decision to rule against Crawford based on the defects in the plaintiffs' pleadings as compared to the evidence. That is a defensible position.
The plaintiffs were wrong in filing only a facial challenge while conceding that the statute would be constititional for most voters, a concession which lost the the case. Voter ID is unconstitutional for all voters, and even non-voters, since it damages the integrity of the election process. I was wrong to not get involved sooner. As one of the people in Indiana whose votes are no longer counted, I could have sought to intervene. But plaintiffs had good lawyers and Posner deservedly has a reputation as a great judge, so I didn't think my input would be needed. My second mistake was that when I submitted an amicus brief, I didn't bother to mention that I was a plaintiff in a related case, Palmer et al. v Marion County. Posner is unusually hostile to amicus briefs, and being part of a related case is one of the few times he allows them.
The district judge was wrong in applying the mimimal, "anything goes" standard of review from Burdick v Takushi. Burdick was a Hawaii case that Justice Scalia described as being about the right to cast a write-in vote for Mickey Mouse. Posner repeated this mistake of using the wrong standard of review, as did Scalia. 5, possibly 6, members of the Supreme Court disagreed, and preferred the Anderson v Celebrezze balancing test. However, these 5 did not join a single opinion, and did not return the case to either of the lower courts for reconsideration under the proper standard.
Although one could go on for pages about specific passages Posner wrote in his opinion, they follow from the initial error to use lax scutiny. If he'd been right about that, the rest would have been ok as well.
Posner's next mistake was in failing to discuss, at all, the state constitutional claims, which the lower court may or may not have gotten right. Voter ID raises serious issues of state constitutional law. Missouri had already found voter ID unconstitutional under its free and open elections section. Georgia, Wisconsin, and Pennsylvania are among the states where voter ID has been enjoined on state constitutional grounds. Other cases are ongoing including North Carolina. An Indiana Court of Appeals later found Indiana's voter ID unconstitutional, although this was overturned by the state supreme court. Indiana still has not addressed a claim under its free and equal elections clause which is similar to Missouri's.
The previous Indiana cases while instructive are not outcome determinative. The court should have certified the state questions to the Indiana Supreme Court. At a minimum, Posner should have discussed the state precedents on the side of finding that voter ID adds a qualification, and is therefore barred by the state constitution. The USSCt's opinion in Crawford did classify voter ID as a qualification, even if the Indiana court later said it wasn't.
The recent admissions by Posner and Stevens emphasis a point I've been trying to make for years.
Crawford left the door wide open for a new challenge seeking to strike down the voter ID program based on actual evidence of how it worked, or didn't. When James Bopp lost McConnell v FEC, he didn't give up. He kept coming back with cases like Wisconsin Right to Life I and II, which set the stage for Citizens United. Indiana needs a lawyer like that to keep challenging voter ID until it falls.
As somebody who tried to do this pro se, and as ineptly as the typical pro se plaintiff, I can say that the project needs a good lawyer and some organization with adequately deep pockets to fund such a project. When voter ID first came up, Howard Dean promised us that he would send lawyers guns and money to take it on, but he seems to have lost interest years ago. The struggle against voter ID has mostly moved on to other states, where battles have been won and lost. A new challenge to Indiana's rules could be a game-changer.
1. Wrong standard of review.
2. Failed to address state constiutional claims.
There's been a lot written this week about Judge Posner's admission (in his latest book and in an interview with the New York Times) that he was wrong in Crawford v Marion County Election Board, the Indiana voter ID case. But I haven't seen anything that talks about -how- he was wrong, just the end result that he upheld the statute.
In the Indiana case, the district judge applied the wrong standard of review, rejected Plaintiffs' expert witness as speculative, and upheld the statute. The 7th circuit panel split 2-1, with Posner writing the opinion. The en banc panel of the 7th circuit split 5-4 to uphold Posner's ruling. The Supreme Court split 3-3-3, with 3 judges finding voter ID unconstitutional, 3 finding it constitutional, and the controlling opinion finding that plaintiffs lost on a technicality, that they had filed a facial challenge instead of an as-applied one. See Washington State Grange, McConnell v FEC. Along the way, mistakes were made by many. Judge Posner wasn't the only one who got it wrong, he is just the only one who has 'fessed up. Posner's role was key, being the deciding vote in the panel opinion and the en banc opinion, and being the gatekeeper as to what briefs were and weren't accepted.
Justice Stevens, interviewed in the WSJ, now says that he overall agrees with the dissent, but stands by his decision to rule against Crawford based on the defects in the plaintiffs' pleadings as compared to the evidence. That is a defensible position.
The plaintiffs were wrong in filing only a facial challenge while conceding that the statute would be constititional for most voters, a concession which lost the the case. Voter ID is unconstitutional for all voters, and even non-voters, since it damages the integrity of the election process. I was wrong to not get involved sooner. As one of the people in Indiana whose votes are no longer counted, I could have sought to intervene. But plaintiffs had good lawyers and Posner deservedly has a reputation as a great judge, so I didn't think my input would be needed. My second mistake was that when I submitted an amicus brief, I didn't bother to mention that I was a plaintiff in a related case, Palmer et al. v Marion County. Posner is unusually hostile to amicus briefs, and being part of a related case is one of the few times he allows them.
The district judge was wrong in applying the mimimal, "anything goes" standard of review from Burdick v Takushi. Burdick was a Hawaii case that Justice Scalia described as being about the right to cast a write-in vote for Mickey Mouse. Posner repeated this mistake of using the wrong standard of review, as did Scalia. 5, possibly 6, members of the Supreme Court disagreed, and preferred the Anderson v Celebrezze balancing test. However, these 5 did not join a single opinion, and did not return the case to either of the lower courts for reconsideration under the proper standard.
Although one could go on for pages about specific passages Posner wrote in his opinion, they follow from the initial error to use lax scutiny. If he'd been right about that, the rest would have been ok as well.
Posner's next mistake was in failing to discuss, at all, the state constitutional claims, which the lower court may or may not have gotten right. Voter ID raises serious issues of state constitutional law. Missouri had already found voter ID unconstitutional under its free and open elections section. Georgia, Wisconsin, and Pennsylvania are among the states where voter ID has been enjoined on state constitutional grounds. Other cases are ongoing including North Carolina. An Indiana Court of Appeals later found Indiana's voter ID unconstitutional, although this was overturned by the state supreme court. Indiana still has not addressed a claim under its free and equal elections clause which is similar to Missouri's.
The previous Indiana cases while instructive are not outcome determinative. The court should have certified the state questions to the Indiana Supreme Court. At a minimum, Posner should have discussed the state precedents on the side of finding that voter ID adds a qualification, and is therefore barred by the state constitution. The USSCt's opinion in Crawford did classify voter ID as a qualification, even if the Indiana court later said it wasn't.
The recent admissions by Posner and Stevens emphasis a point I've been trying to make for years.
Crawford left the door wide open for a new challenge seeking to strike down the voter ID program based on actual evidence of how it worked, or didn't. When James Bopp lost McConnell v FEC, he didn't give up. He kept coming back with cases like Wisconsin Right to Life I and II, which set the stage for Citizens United. Indiana needs a lawyer like that to keep challenging voter ID until it falls.
As somebody who tried to do this pro se, and as ineptly as the typical pro se plaintiff, I can say that the project needs a good lawyer and some organization with adequately deep pockets to fund such a project. When voter ID first came up, Howard Dean promised us that he would send lawyers guns and money to take it on, but he seems to have lost interest years ago. The struggle against voter ID has mostly moved on to other states, where battles have been won and lost. A new challenge to Indiana's rules could be a game-changer.
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