[EL] Judge Posner Admits He Was Wrong in Crawford Voter ID Case/still more news

[Schultz, David A.]

I was at the Crawford hearing when Posner  was hearing the case.  Not only
is is nice to hear him say he was wrong after the damage is done, but it
would be nice to hear him say that he was hostile and probably not
impartial in the hearing.  I remember the ACLU attorney wished to argue in
the case and Posner made it clear that he did not think that the attorney
had anything of value to argue.  Moreover, Posner was clearly dismissive of
the arguments against voter ID and he simply just assumed that there was
real fraud without even being willing to entertain the fact that the state
of Indiana had stipulated that none existed.  He also simply followed the
district court in dismissing evidence of voter disenfranchisement.  It is
always nice to admit you are wrong after the fact and when the evidence
contradicts your position.  However when you had contrary evidence at the
time of the decision and still made the wrong decision. . .well I expect
better of judges.


On Fri, Oct 11, 2013 at 3:36 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

>  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).
>
>
>  [image: 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.”
>
>
>
>
>  [image: 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.
>  [image: 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>
>  [image: 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>.
>
>
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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 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://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 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
>
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-- 
David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
Department of Political Science
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