Saturday, September 27, 2014
Posner, maybe, has changed his position on voter ID.
I did not think he would or should recuse on the Wisconsin voter ID case,
merely because he has made some public comments about voter ID,
which might or might not have reflected a change of heart on the issue.
The 7th circuit just split 5-5 on whether to rehear Wisconsin's voter ID stay.
The opinions, forthcoming eventually, maybe, will be an interesting read,
and I expect a lot of discussion of whatever Posner has to say.
It's entirely possible his vote to rehear is not based on the merits, but on the problems
of the short time frame for changing the rules.
This is the second time the 7th circuit has split on voter ID rehearing. Was it 4-4 last time,
in Crawford, or 4-5?
I happened to meet former Representative Crawford last week. He was doing security for Rev. William Barber who is bringing Moral Mondays to Indiana.
Indiana's Moral Monday group is watching developments at the 7th circuit closely, pondering whether to file another voter ID lawsuit there. They have a lawyer, but he prefers to remain anonymous at the moment, so I don't know who it is.
Both the 7th Circuit case and the 4th Circuit North Carolina one are likely headed to the Supreme Court, which might or might not act before the election.
In many ways I think that the best thing that can happen in Wisconsin is for the stay to stay lifted, and for the election to be a chaotic mess, exposing voter ID as an unworkable sham.
But interim relief from the Supreme Court, a la Purcell, would also be a welcome development.
When Crawford was before the 7th circuit for en banc rehearing, I submitted an amicus brief, but the state objected and Posner denied the motion to admit it.
I recently found an earlier draft of that brief in an old email,and I may update this post later with a link to it if I figure out how to get blogger to link to a file. The brief, at least that draft, has some problems, and I made a substantial error in the motion to file it, by failing to point out that the case court resolve my pending litigation below (Palmer v Marion County.) Still, the brief made some good points, that partly went un-addressed.
That brief argued that Posner had used the wrong standard of review, which the Supreme Court later agreed with, and also argued that Posner erred in failing to address the state constitutional claims.
A state appellate court later found the statute unconstitutional on state grounds, although that was later reversed by the state supreme court. I think that's solid enough evidence that the state issues were non-trivial. I argued that the court should certify the state issues to the Indiana Supreme Court.
Since the circuit split, I think 4-4, I have often wondered if my brief would have changed one vote.
If the state questions had been certified to the state supreme court, Crawford would have taken a different path to the US supreme court. At the US Supreme Court, I also had an amicus, although I didn't write it. I joined the Privacy Project brief.
Here is the NYT on the 7th Circuit's ruling
http://www.nytimes.com/2014/09/27/us/federal-court-declines-to-take-up-wisconsins-voter-id-law.html?_r=0 and Volokh.
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/09/26/seventh-circuit-splits-down-the-middle-over-wisconsin-voter-id-law/
I did not think he would or should recuse on the Wisconsin voter ID case,
merely because he has made some public comments about voter ID,
which might or might not have reflected a change of heart on the issue.
The 7th circuit just split 5-5 on whether to rehear Wisconsin's voter ID stay.
The opinions, forthcoming eventually, maybe, will be an interesting read,
and I expect a lot of discussion of whatever Posner has to say.
It's entirely possible his vote to rehear is not based on the merits, but on the problems
of the short time frame for changing the rules.
This is the second time the 7th circuit has split on voter ID rehearing. Was it 4-4 last time,
in Crawford, or 4-5?
I happened to meet former Representative Crawford last week. He was doing security for Rev. William Barber who is bringing Moral Mondays to Indiana.
Indiana's Moral Monday group is watching developments at the 7th circuit closely, pondering whether to file another voter ID lawsuit there. They have a lawyer, but he prefers to remain anonymous at the moment, so I don't know who it is.
Both the 7th Circuit case and the 4th Circuit North Carolina one are likely headed to the Supreme Court, which might or might not act before the election.
In many ways I think that the best thing that can happen in Wisconsin is for the stay to stay lifted, and for the election to be a chaotic mess, exposing voter ID as an unworkable sham.
But interim relief from the Supreme Court, a la Purcell, would also be a welcome development.
When Crawford was before the 7th circuit for en banc rehearing, I submitted an amicus brief, but the state objected and Posner denied the motion to admit it.
I recently found an earlier draft of that brief in an old email,and I may update this post later with a link to it if I figure out how to get blogger to link to a file. The brief, at least that draft, has some problems, and I made a substantial error in the motion to file it, by failing to point out that the case court resolve my pending litigation below (Palmer v Marion County.) Still, the brief made some good points, that partly went un-addressed.
That brief argued that Posner had used the wrong standard of review, which the Supreme Court later agreed with, and also argued that Posner erred in failing to address the state constitutional claims.
A state appellate court later found the statute unconstitutional on state grounds, although that was later reversed by the state supreme court. I think that's solid enough evidence that the state issues were non-trivial. I argued that the court should certify the state issues to the Indiana Supreme Court.
Since the circuit split, I think 4-4, I have often wondered if my brief would have changed one vote.
If the state questions had been certified to the state supreme court, Crawford would have taken a different path to the US supreme court. At the US Supreme Court, I also had an amicus, although I didn't write it. I joined the Privacy Project brief.
Here is the NYT on the 7th Circuit's ruling
http://www.nytimes.com/2014/09/27/us/federal-court-declines-to-take-up-wisconsins-voter-id-law.html?_r=0 and Volokh.
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/09/26/seventh-circuit-splits-down-the-middle-over-wisconsin-voter-id-law/
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