[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 13:14:39 PDT 2013
sorry, didn't mean to accidentally elevate Posner to SCOTUS.
On 10/11/13 1:11 PM, Rick Hasen wrote:
>
>
> 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).
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D55927&title=Breaking%3A%20Justice%20Posner%20Admits%20He%20Was%20Wrong%20in%20Crawford%20Voter%20ID%20Case&description=>
> 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."
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D55925&title=Judge%20Posner%20on%20Campaign%20Finance&description=>
> 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.
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D55923&title=Lessig%20on%20Hasen%20on%20Rosen%20on%20Lessig%20on%20Dependence%20Corruption&description=>
> 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>
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D55921&title=Andrew%20Cohen%20Responds%20to%20WSJ%20Editorial%20on%20Justice%20Stevens%20and%20Voter%20Fraud&description=>
> 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> .
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D55919&title=Jeffrey%20Rosen%20is%20Wrong%20to%20Buy%20into%20Larry%20Lessig%E2%80%99s%20History%20on%20the%20Original%20Meaning%20of%20Corruption&description=>
> 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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--
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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