[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 13:36:47 PDT 2013
Well, Justice Posner has hubrus while Judge Posner has hubris.
Have a nice weekend.
On 10/11/13 1:34 PM, Lorraine Minnite wrote:
> I meant 'hubris' not 'hubrus' which isn't a word.
>
> 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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--
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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