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Monday, October 06, 2014

I havent yet read the 7th circuit decision in Wisconsin upholding voter ID. Or rather a 7th circuit panel, opinion by Easterbrook. Hasen says it's terrible. Sometimes a terrible decision is better than a merely bad one.

The 7th recently split 5-5 on whether to rehear the stay in the same case. Maybe some of those votes were about procedure; the stay is too close to the election. But if there are at least 5 votes, a really bad opinion by Easterbrook could help pick up one more vote, either on the full 7th circuit or the U S Supreme Court.

Posner's decision in Crawford was really bad, and there have been some ambivalent comments suggesting a possible change of heart. A 6-4 opinion by Posner, following a chaotic Wisconsin election, would be high drama.

Also at the Supreme Court we don't yet know how Roberts and Kennedy will vote in an actual case where multiple people are disenfranchised by voter ID and bring an as-applied challenge.

The worse the Easterbrook opinion, the more these sometimes moderate judges could feel  compelled to grant cert and give the case a fair hearing.

update!: another 5-5 split, Posner for the losing side, and meanwhile the Supreme Court has stayed voter ID for wisconsin this cycle, 3 dissenters, Scalia, Alito, Thomas.

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