[EL] Judge Posner Admits He Was Wrong in Crawford Voter ID Case/still more news
Rick Hasen
rhasen at law.uci.edu
Fri Oct 11 13:11:30 PDT 2013
Breaking: Justice Posner Admits He Was Wrong in Crawford Voter ID
Case <http://electionlawblog.org/?p=55927>
Posted on October 11, 2013 1:09 pm
<http://electionlawblog.org/?p=55927>by Rick Hasen
<http://electionlawblog.org/?author=3>
Wow.
My transcription from HuffPostLive:
<http://live.huffingtonpost.com/r/segment/judge-richard-posner-live-interview/524ced9502a76017d900006a>
In response to Mike Sacks's questions about whether Judge Posner and the
7th circuit got it wrong in Crawford case, the one upholding Indiana's
tough voter id law against constitutional challenge:
"Yes. Absolutely. And the problem is that there hadn't been that much
activity with voter identification. And ... maybe we should have been
more imaginative... we.... weren't really given strong indications that
requiring additional voter identification would actually disfranchise
people entitled to vote. There was a dissenting judge, Judge Evans,
since deceased, and I think he is right. But at the time I thought what
we were doing was right. It is interesting that the majority opinion was
written by Justice 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."
Here's the quote from Posner's book, which Mike Sacks flashed on the
screen: "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."
I wrote a Washington Post oped
<http://www.washingtonpost.com/wp-dyn/content/article/2007/09/18/AR2007091801572.html>
criticizing Judge Posner's opinion in Crawford, and urging the Supreme
Court to take the case. That was, as I admit in the Voting Wars, a
terrible thing to wish for (though I doubt my oped had anything to do
with the Supreme Court taking the case).
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>, voter id
<http://electionlawblog.org/?cat=9>
Judge Posner on Campaign Finance <http://electionlawblog.org/?p=55925>
Posted on October 11, 2013 12:53 pm
<http://electionlawblog.org/?p=55925>by Rick Hasen
<http://electionlawblog.org/?author=3>
my transcription from HuffPostLive:
<http://live.huffingtonpost.com/r/segment/judge-richard-posner-live-interview/524ced9502a76017d900006a>
"I didn't like the Citizens United case. I think political contributions
... ought to be tightly regulated. And this is one those issues where to
which the Constitution doesn't actually speak. Right? The Bill of Rights
is very vague. And we have a sentence about Congress shall make no law
abridging freedom of speech. What does that mean? There's enormous
regulation of speech and why shouldn't it embrace campaign finance?
That's my view. Of course, the Supreme Court disagrees."
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
Lessig on Hasen on Rosen on Lessig on Dependence Corruption
<http://electionlawblog.org/?p=55923>
Posted on October 11, 2013 11:20 am
<http://electionlawblog.org/?p=55923>by Rick Hasen
<http://electionlawblog.org/?author=3>
Larry responds
<http://lessig.tumblr.com/post/63746705807/twitter-rickhasen-new-rosenjeffrey-piece>
to my most recent post <http://electionlawblog.org/?p=55919>:
What's puzzling about Rick Hasen's position on the originalist
argument for why "corruption" means more than "quid pro quo"
corruption is that he uses language like this --- "New @RosenJeffrey
piece channeling @Lessig on originalism and campaign finance is
wrong" --- when what he means is --- "it won't work." He has no real
response to the claim that in fact the framers used the word
"corruption" in the way I (and others like Teachout) say. His only
response --- in fine --- is that the conservatives on the court
aren't consistent enough to be moved by an originalist argument to a
non-conservative end.
This feels both cynical and destructive of the ends I know Hasen and
I share. I get that he wishes for a time when the Supreme Court says
"it's perfectly constitutional to pursue perfect equality in the
political speech market." I don't support that position; I'm pretty
confident Kagan won't either; so it will be a long time till a Court
could be constructed that would embrace it.
But given we both support aggregate limits, I don't get why he's so
invested in denying an argument which at the very least would mark
the originalists as both wrong and inconsistent if indeed they
rejected it?
Not to mention, the possible good if at least one followed it.
I strongly disagree that I have no response to the argument that this is
a good originalist argument. My article and post
<http://electionlawblog.org/?p=55919>argues this is a /bad/ originalist
argument.
Whether you like originalism or not, I don't think this is a strong
originalist argument.
It is true that I also don't think that this argument will sway the
originalists on the Court, who I believe or originalists of
convenience---but that was not my primary point.
So why am I "so invested" in this fight? Because I think it is a
distraction from the kinds of arguments which are (1) forthright and (2)
can actually move the ball forward. Dependence corruption gives people
false hope that conservatives on the Court will be swayed by a gloss on
original meaning.
Time to take on political equality and corruption (as understood by the
Court) head on, and make the best arguments under these approaches.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
Andrew Cohen Responds to WSJ Editorial on Justice Stevens and Voter
Fraud <http://electionlawblog.org/?p=55921>
Posted on October 11, 2013 11:01 am
<http://electionlawblog.org/?p=55921>by Rick Hasen
<http://electionlawblog.org/?author=3>
Here.
<http://www.brennancenter.org/analysis/truth-about-justice-stevens-and-voting-rights-act#.Ulg8QqeShYI.twitter>
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>, Voting Rights Act
<http://electionlawblog.org/?cat=15>
Jeffrey Rosen is Wrong to Buy into Larry Lessig's History on the
Original Meaning of Corruption <http://electionlawblog.org/?p=55919>
Posted on October 11, 2013 10:58 am
<http://electionlawblog.org/?p=55919>by Rick Hasen
<http://electionlawblog.org/?author=3>
Rosen says
<http://www.newrepublic.com/article/115152/mccutcheon-case-corruption-and-supreme-court>
that if Clarence Thomas were a true originalist, he would allow for
campaign finance regulation. Here, he buys into Larry Lessig's arguments
about the original meaning of corruption ("dependence corruption") to
the founding fathers.
I've been debating Lessig about "dependence corruption" for some time;
see for example this Election Law Journal piece
<http://online.liebertpub.com/doi/abs/10.1089/elj.2013.1234> and the
Harvard Law Review piece
<http://www.harvardlawreview.org/issues/126/december12/Book_Review_9410.php>.
On the originalism point specifically, here's what I wrote in ELJ
(footnotes omitted):
Last year, the Montana Supreme Court tried to buck the U.S. Supreme
Court's decision in Citizens United by holding that the state of
Montana provided enough evidence that independent corporate
political spending could corrupt the state's political process to
justify corporate spending limits.70 While the case was pending
before the Supreme Court, Lessig was alone in predicting that the
Supreme Court would take the case and affirm the lower court, with
his betting on Justice Kennedy switching sides from his Citizens
United vote.71 The rest of us in the field predicted what actually
happened:72 in American Tradition Partnership (ATP) v. Bullock,73
the U.S. Supreme Court smacked down the Montana Supreme Court in a
5--4 summary reversal in which all the Justices in the Citizens
United majority reaffirmed the soundness of that precedent.
But Lessig was undeterred by the ATP smackdown. As late as January
2013, months after the Montana case, he was predicting that an
''originalist'' Justice (but not Justice Scalia, for whom he
clerked) could well reverse course on Citizens United in a future
case.74 Lessig believes, following the work of Professor Zephyr
Teachout,75 that ''dependence corruption'' is a form of corruption
that would have been recognizable and accepted by the Framers as a
legitimate basis to limit spending in elections.76
I leave to others the question whether or not the Lessig/Teachout
interpretation of ''corruption'' to include concepts of political
equality is consistent with originalist thinking.77 I will note
however that in Federalist No. 52, the phrase ''dependent upon the
people alone'' appears in a passage explaining why the Constitution
set the qualifications for suffrage pertaining to voting for members
of the U.S. House the same as the qualifications for voting for the
state legislature. Publius states that allowing the state
legislature the discretion to set the rules for voting for Congress
''would have rendered too dependent on the State Governments, that
branch of the federal government which ought to be dependent on the
people alone.''78 The language here has everything to do with
federalism and the federal-state balance, and nothing to do with
improper influence by those with money or other benefits over the
Congress. Later in the pamphlet, Publius explains that biennial
elections insure that Congress will be properly dependent on the
people: ''Frequent elections are unquestionably the only policy by
which this dependence and sympathy can be effectually secured.''79
There is no hint in this Federalist Paper about worries of monied
classes influencing the people in their votes for Congress.
Regardless of the soundness of the originalist debate, the idea that
the current Supreme Court will change course thanks to an
undiscovered originalist argument is a pipe dream. Justice Thomas
has been the Justice most hostile to campaign finance regulation in
his time on the Court, leading the way toward deregulation,80 with
Justice Alito closely following suit.81 Justice Kennedy has never
wavered from his dissents in Austin, in which he said that the
Michigan law limiting corporate spending in elections to PACs ''is
the rawest form of censorship,''82 and in McConnell, in which he
first declared that ingratiation and access are not corruption83---a
point he made into a majority opinion in Citizens United.84 And
Chief Justice Roberts has yet tovote to uphold a campaign finance
limit while on the Court; his opinions have lamented FEC regulation
as speech suppression, declaring ''enough is enough.''85
This Supreme Court majority won't budge on this question despite
original understandings of the meaning of ''corruption,'' and
arguing that it will gives supporters false hope.
See also Bruce Edward Cain, Is Dependence Corruption the Solution to
America's Campaign Finance Problems?, Cal. L. Rev. (forthcoming 2013),
draft available,<
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2267187 ; Guy-Uriel
E. Charles, Corruption's Temptation, Cal. L. Rev. (Forthcoming 2013),
draft available, < http://ssrn.com/abstract=2272189>
<http://ssrn.com/abstract=2272189> .
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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