Does this change anyone's mind? Posner: we were wrong to allow Indiana's voter ID law

[UltraVires]

@Rhythmdvl

If it was a whoosh or there is some subtle distinction between not noticing Posner’s Crawford decision and the SCOTUS decision, have at it. If I’d told any of my law professors that discussing or quoting a SCOTUS opinion meant we never noticed or were aware of the lower court’s ruling I’d expect to have been laughed at. YMMV.

I think the point is that since the Supreme Court already ruled, it doesn’t really matter that a lower court judge has changed his mind.

Let’s say that one of the 9th Circuit Judges said that he changed his mind and that he now feels that DOMA was constitutional after all. Apart from some law school discussion, that doesn’t make DOMA any more or less unconstitutional that the Supreme Court decided it was.

[Rhythmdvl]

@jtgain

I think the point is that since the Supreme Court already ruled, it doesn’t really matter that a lower court judge has changed his mind.
.

But I was baffled by **Bricker’s ** “I don’t believe I have ever noticed Posner’s Crawford decision mentioned here! at least before this thread,” not by structural arguments made elsewhere. As in, yes, for analysis of a particular law’s constitutionality, the primary guidance is the SCOTUS opinion. But that’s not what he seemed to be suggesting, unless it was a Brickroll. Even then I can’t really fathom what it was. Any law student, law clerk or law firm associate would get his ass handed to him if his responsibility was to analyse a fact pattern and he/she limited their analysis solely to the SCOTUS opinion, particularly when the topic at hand is the lower court’s ruling.

[elucidator]

@Evil_Captor

… … bastard!..

Family legend has it that my Mom went in to labor nine months to the day after she married my father. My grandmother was hustling around getting ready to go to the hospital when my Mom said “I’m not going anywhere till I can call Aunt Ophelia and rub her damn nose in it!”.

And da trut? I thought that you could only pick one, either the keyword or the user. Ricky Retardo, c’est moi!

Still, much thanks! Gonna get some mileage out of this little nugget of knowledge!

[Bricker]

@Rhythmdvl

Sorry, not following too closely. Was this sarcasm/ a whoosh?

If it was a whoosh or there is some subtle distinction between not noticing Posner’s Crawford decision and the SCOTUS decision, have at it. If I’d told any of my law professors that discussing or quoting a SCOTUS opinion meant we never noticed or were aware of the lower court’s ruling I’d expect to have been laughed at. YMMV.

I spoke precisely. Each and every quote from me above – the two that explicitly say “Supreme Court” and the one that doesn’t – that refers to “the Crawford decision,” refers to the Supreme Court’s Crawford decision. The only laughter would properly come from me holding up a Seventh Circuit decision and claiming that it was the law of the land. Posner wrote the Seventh Circuit decision. Had the Supreme Court affirmed per curium, perhaps there might be something to conflating the two.

[Bricker]

@jsgoddess

From Politico:

Just curious if this makes anyone who supported this decision think again. I think having the judge who wrote it say they weren’t imaginative enough to think of the ways it could be used is a big deal for how we should think about decisions like this.
ETA: The decision: “Posner authored the 2-1 opinion in Crawford v. Marion County”

And not that it makes the slightest bit of difference, but Posner now says he was wrong to say he was wrong – he only “may” have been wrong:

To my considerable surprise, one sentence—I should have thought it entirely innocuous—in the book has received unusual attention in the media and blogs, much of it critical. The sentence runs from the bottom of page 84 to the top of page 85, in a chapter entitled “The Challenge of Complexity.” The sentence reads in its entirety: “I plead guilty to having written the majority opinion (affirmed by the Supreme Court) upholding Indiana’s requirement that prospective voters prove their identity with a photo ID—a type of law now widely regarded as a means of voter suppression rather than of fraud prevention.” (The footnote provides the name and citation of the opinion: Crawford v. Marion County Election Board, 472 F.3d 949 (7th Cir. 2007), affirmed, 553 U.S. 181 (2008).)

To understand the sentence in context, one must read the portion of the first sentence of the paragraph in which it appears. I say that “the Supreme Court and the lower federal courts have managed to enmesh themselves deeply in the electoral process without understanding it sufficiently well to be able to gauge the consequences of decisions.” I did not say that my decision, and the Supreme Court’s decision affirming it (written, be it noted, by the notably liberal Justice Stevens), were wrong, only that, in common with many other judges, I could not be confident that it was right, since I am one of the judges who doesn’t understand the electoral process sufficiently well to be able to gauge the consequences of decisions dealing with that process. I may well have been wrong in Crawford, because laws similar (I do not say identical) to Indiana’s represent a “type of law now widely regarded as a means of voter suppression rather than of fraud prevention” (emphasis added)—“now” referring to the fact there has been a flurry of such laws since 2007, when my opinion in the Crawford case was issued, and they have been sharply criticized.

[Damuri_Ajashi]

@Bricker

In other words, Posner’s decision did not sway the ultimate result.

Do you honestly think Posner doesn’t sway legal opinions on the Supreme court?

We hear about all these 5-4 SCOTUS decisions but the majority of them are still 9-0 9-1 or 7-2. Especially when it comes to businesses, the line of thinking that has most influenced this pro-business tilt in the court is probably law & economics. Posner is probably the dean of that school of legal thought.

Together with Easterbrook, I don’t think there is a more respected circuit court in the country. Perhaps Guido Calabresi on the second circuit is on their level (and I think they are all law & econ guys).

I’m not saying that this means Posner gets insurmountable deference on voting rights issues but he is respected and influences judicial thought across the country.

or maybe I’m just a Posner fanboi

@Bricker

Posner was the author of an opinion which means little once the Supreme Court took the case. If the Court had stayed out of it, sure, we’d be hotly debating how influential the Seventh Circuit should be in the rest of the country, and Posner’s decision might be of great importance.

Sure, there is no precedential value but don’t you think that things might have gone differently if Posner had laid out the potential for using voter ID laws as a method of voter suppression in an appellate decision to knock down the law?

@Really_Not_All_That_Bright

This is the sort of naive analysis for which Posner is (perhaps rightfully, to some extent) famous. “People are rational actors and nothing bad will ever happen if we allow the market/highway/school district/election to police itself.” If there’s a “oh shit” moment here, it should be (for a majority of Americans) the discovery that strict scrutiny does not attach to voting rights.

I disagree that Posner is naive but I’m still still scratching my head that voting rights are not subject to some higher level of scrutiny. Its as if the law forbids both prince and pauper from sleeping under the bridge.

@Bricker

And not that it makes the slightest bit of difference, but Posner now says he was wrong to say he was wrong – he only “may” have been wrong:

“I may well have been wrong in Crawford, because laws similar (I do not say identical) to Indiana’s represent a “type of law now widely regarded as a means of voter suppression rather than of fraud prevention” (emphasis added)—“now” referring to the fact there has been a flurry of such laws since 2007, when my opinion in the Crawford case was issued, and they have been sharply criticized.”

He isn’t just saying that there is some doubt, he seems to think the likelihood of error was more than a mere possibility. From his opinion:

“The Indiana law is not like a poll tax, where on one side is the right to vote and on the other side the state’s interest in defraying the cost of elections or in limiting the franchise to people who really care about voting or in excluding poor people or in discouraging people who are black. The purpose of the Indiana law is to reduce voting fraud, and voting fraud impairs the right of legitimate voters to vote by diluting their votes—dilution being recognized to be an impairment of the right to vote.”

So the PURPOSE of the law was relevant to the 7th circuit decision.

In the end, after the 2012 election I’m not so sure that the voter supperssion is working as intended.