[EL] Judge Posner Admits He Was Wrong in Crawford Voter ID Case/still more news
Lorraine Minnite
lminnite at gmail.com
Fri Oct 11 13:32:08 PDT 2013
On Posner and voter ID: All I can say is, Wow, what hubrus. I find
this incredible, an admission of ignorance by a federal judge. Posner
thought he was right and now, based on what does he think he was wrong?
Has another case on voter ID as disfranchisement come before him?
Blaming lawyers for not giving him enough information by which he could
evaluate the suppression claims is a cheap excuse, especially if he's
now changed his mind on his own. As a learned man, I'm sure he is at
least somewhat familiar with the history of race and class-based voter
suppression in the United States. He had no record of voter fraud in
front of him so what did he think was going on? And why did Judge
Evans, hearing the same evidence get it right while Posner got it
wrong? More importantly, what is Judge Posner now going to do about the
fact that he got it wrong? Elites like him simply "make mistakes" they
admit to later, pay no price, and let many more suffer the consequences.
On 10/11/13 4:11 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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