A federal appeals court judge who made a crucial ruling in 2007 declaring an Indiana voter ID legal recently published a book where he “plead guilty” to upholding “a type of law now widely regarded as a means of voter suppression rather than of fraud prevention,” which many read as a confession that he made a mistake in that ruling. After dozens of election law experts and voting rights advocates criticized Judge Richard Posner for his second-thinking, given all that is at stake for elections (millions of people at risk of losing their ballot for not having ID), the judge wrote an op-ed in The New Republic this weekend walking back his guilty plea.
I did not say that my decision … [was] 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.
Posner’s original ruling in the 2007 Crawford v. Marion County Election Board case, when he upheld voter ID laws as constitutional, was the foundation for the U.S. Supreme Court’s later ruling that gave the laws the same legal greenlight. Posner posited in 2007 that since it was a new type of law (there were no other state voter ID laws at the time) that there weren’t enough data to prove that it would disenfranchise those without ID, as opponents argued in court. Of course, there were no data that proved it would stop voter impersonation fraud either — or that impersonation fraud even existed, as the law’s proponents argued. But Posner decided to err on the side of the non-existent fraud, and the rest is history.
The point I was making in my book in mentioning the Crawford case was not that the decision was right or wrong … but that in many cases judges can’t have any confidence in the soundness of their decisions if they do not have empirical data concerning the likely consequences of deciding the case one way rather than another.
Not having confidence in your decision sounds like doubting your decision, which, regardless of what he’s now saying in The New Republic, sounds like Monday-morning quarterbacking — in other words, reviewing your mistakes. In this op-ed, though, Posner sounds like he’s trying to have it both ways: He both questions the correctness of his decision and believes he is correct.
It wasn’t long ago that in an interview with Mike Sacks at Huffpost Live, he was unequivocal that he made a mistake. When Posner was asked if his ruling was wrong, the judge said, “Yes, absolutely.”
Meanwhile, the consequences of the half-baked ruling are apparent, particularly now in North Carolina and Texas (see below, from Advancement Project):