Friday, October 11, 2013
Breaking: Judge Posner Admits He Was Wrong in Crawford Voter ID Case
Posner:
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.”
In Crawford, at the en banc stage, I submitted an amicus brief providing some of this additional information, but the state objected and Judge Posner denied the motion to admit the brief. I had neglected to point out that I was a plaintiff in a related case, which is one of Posner's few grounds for admitting opposed amicus briefs.
I have an early draft of that amicus on my google drive, but am not sure how to attach it here.
Similarly in Majors v Abell, the one case I've argued in front of Posner, he got the the merits wrong, but might not have done so if he had read the two briefs I submitted but he rejected. The 7th circuit is very rulebound and persnickety about briefing, which contributes to the problem he is complaining about.
Stategically, it might be worthwhile for some set of plaintiffs to bring an as-applied challenge to Indiana's voter ID in federal court, angling to get the case before Posner again, or some of those who voted for rehearing en banc but narrowly lost.
By as-applied I do not mean necessarily just challenging one vote, although such a case might be a good start. An as-applied challenge could seek wider relief, such as having all provisional votes counted, or enjoining voter ID. I do mean a brandeis type brief with a lot of data, showing that over 1000 votes have gone uncounted, there have been numerous cases where voter ID wasn't implemented properly, at least one election has turned on whether a provisional vote get counted, and there have been no known cases of voter fraud being detected or deterred by the voter ID regime.
This would be particularly worthwhile if the case could get up to the Supreme Court during the Obama administration, so that the solicitor general could take a different tack than in Crawford. But I doubt things move that fast.
I have an early draft of that amicus on my google drive, but am not sure how to attach it here.
Similarly in Majors v Abell, the one case I've argued in front of Posner, he got the the merits wrong, but might not have done so if he had read the two briefs I submitted but he rejected. The 7th circuit is very rulebound and persnickety about briefing, which contributes to the problem he is complaining about.
Stategically, it might be worthwhile for some set of plaintiffs to bring an as-applied challenge to Indiana's voter ID in federal court, angling to get the case before Posner again, or some of those who voted for rehearing en banc but narrowly lost.
By as-applied I do not mean necessarily just challenging one vote, although such a case might be a good start. An as-applied challenge could seek wider relief, such as having all provisional votes counted, or enjoining voter ID. I do mean a brandeis type brief with a lot of data, showing that over 1000 votes have gone uncounted, there have been numerous cases where voter ID wasn't implemented properly, at least one election has turned on whether a provisional vote get counted, and there have been no known cases of voter fraud being detected or deterred by the voter ID regime.
This would be particularly worthwhile if the case could get up to the Supreme Court during the Obama administration, so that the solicitor general could take a different tack than in Crawford. But I doubt things move that fast.
the Posner interview is here: http://live.huffingtonpost.com/r/segment/judge-richard-posner-live-interview/524ced9502a76017d900006a
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