This post first appeared in The Nation.
When the United States Court of Appeals for the 7th Circuit in Chicago issued a critical 2007 ruling defending the constitutionality of voter identification laws, Judge Richard Posner authored the decision.
The arguments Judge Posner made for upholding Indiana’s voter ID law framed out some of the essential underpinnings for the 2008 determination of the US Supreme Court – in the case of Crawford v. Marion County Election Board – that has since served as a justification for the enactment of ever harsher laws in states across the country.
According to the National Conference of State Legislatures, “a total of 34 states have passed voter ID laws of some kind.” Not all of those laws have been implemented, with a number of them facing court challenges.
With the status of voting issues protections complicated by the Supreme Court’s June, 2013, decision to invalidate key sections of the Voting Rights Act, the wrangling over voter ID laws in states such as North Carolina and Texas has only become more legally complex and confusing.
So it should count for something that Judge Posner now says that he was mistaken in his 2007 decision.
Indeed, the judge’s rethink ought to inspire a national rethink — about not just voter ID laws but the broader issue of voter rights.
In his new book, Reflections on Judging, Judge Posner writes, “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 law now widely regarded as a means of voter suppression rather than fraud prevention.”
Judge Posner, an appointee of former President Ronald Reagan, is not stopping there.
In an interview with HuffPost Live, Mick Sacks asked: “Do you think that the court got this one wrong?”
“Yes,” replied Judge Posner. “Absolutely. And the problem is that there hadn’t been that much activity with voter identification… [The 7th Circuit judges have] really given strong indications that requiring additional voter identification would actually disfranchise people [who are] entitled to vote.” Posner continued:
There was a dissenting judge, Judge [Terence] Evans, since deceased, and I think he [was] right. But at the time I thought what we were doing was right. It is interesting that the majority opinion was written by Justice [John Paul] Stevens, who is very liberal, more liberal than I was or am… 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.
Judge Posner should have paid closer attention to the detailed amicus brief filed in 2006 by the Brennan Center for Justice, which explained how the Indiana law threatened to “exclude many eligible voters from participating in our democratic process.”
But the jurist, one of the most prominent on the federal bench, has now come around.
Judge Posner is making a bigger point about the challenges judges face in making determinations about complex and controversial concerns.
That broader point is certainly worthy of discussion.
But the specific point Judge Posner is making about voter ID laws ought not be lost on Americans as state legislatures and courts continue to wrestle with voting rights issues.
Because voter ID requirements have been widely criticized as weighing more heavily on specific classes of voters – people of color, students, low-income voters, the elderly — legitimate concerns have been raised about equal protection and a host of other constitutional concerns.
The Supreme Court’s 2008 ruling has been used to defend voter ID laws as constitutionally credible.
Now, the judge whose decision helped to shape that decision says he was wrong.
The case against voter ID laws has always been compelling. Voter ID laws represent “solutions” in search of a “problem” that the Brennan Center describes as a “myth.” They are unduly burdensome and threatening to democratic participation by substantial portions of the nations voting-age population; the American Civil Liberties Union explains that “more than 21 million Americans do not have government-issued photo identification; a disproportionate number of these Americans are low-income, racial and ethnic minorities and elderly.” And where voter ID requirements involve costs for those seeking, Attorney General Eric Holder has said: “We call those poll taxes.”
But as solid as the case against voter ID laws has always been, Judge Posner’s admission of error should — at least for honest observers — make that case a good deal stronger.