We talked about Judge Posner’s admission that he made a mistake in the Indiana voter ID case…. Posner blamed the advocate in the case for not presenting enough information. The lawyer who argued the case wrote this in response:
As the lawyer who argued the constitutional challenge to the Indiana Voter ID law in the Supreme Court in 2008, I was both fascinated and pleased to hear that Judge Richard Posner--the author of the Seventh Circuit majority opinion affirmed by the Supreme Courtin Crawford v. Marion County Elections Board--has now publicly stated that he was wrong. It is refreshing, if not unprecedented, for a jurist to admit error on such a major case.
I was a little less pleased to see that he attempted to excuse his error by blaming the parties for not providing sufficient information to the court. As he put it in an interview quoted in the New York Times, weren’t given the information that would enable that balance to be struck between preventing fraud and protecting voters’ rights.”
Really? The information provided was enough for the late Judge Terence Evans, dissenting from Judge Posner’s decision, to say quite accurately:
Let’s not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by folks believed to skew Democratic.
There had never been a single known incident of in-person voter impersonation fraud in the history of Indiana and there have been precious few nationally--yet the Indiana law targeted only in-person voting. The law was passed immediately after Republicans took complete control of the legislature and governorship of the State of Indiana. Every Republican legislator supported the law, while every Democratic legislator opposed it. Indiana Secretary of State Todd Rokita, the primary supporter of the bill, himself stated that there are certain “groups of voters for whom compliance with [the Voter ID law] may be difficult”… “elderly voters, indigent voters, voters with disabilities, first-time voters, [and] re-enfranchised ex-felons.” Moreover, the district court had conservatively estimated that there were 43,000 voting-age Indianans without a state-issued driver’s license or identification card, and that nearly three-quarters of them were in Marion County…. And by the time of the Seventh Circuit ruling… voter turnout in Marion County in the 2006 midterm general election had fallen…. In 2002 Marion County turnout was only three percentage points lower than turnout in the rest of the state. In 2006, the gap rose to eight percentage points….
The unfortunate approval of the Indiana law that the Seventh Circuit provided cannot fairly be blamed on how the case was litigated.