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

[Robbin Stewart]

A question about mootness.
In 2012, Jake Myers went to vote in Indianapolis. He did not show ID, and
was told he could not vote, but after 15 minutes the election judge let him
vote a provisional ballot, which was then not counted. He has an audio file
of the 15 minutes. Myers has now moved to Tennessee, and does not plan to
vote in Indiana again. Does he have a live claim? Could he seek a
declaratory judgment or an injunction to get his vote counted, or is this
all moot now? I genuinely don't know.

With Judge Posner's admission that he was wrong in Crawford, there may (or
may not) be interest in bringing follow-up cases to Crawford. If Myers has
a live claim, what he needs next is a lawyer, and somebody to fund the case
- he is indigent. He is willing. If anybody's remotely interested, let me
know.

http://ballots.blogspot.com/2013/10/a-question-about-mootness.html

http://ballots.blogspot.com/2013/10/breaking-judge-posner-admits-he-was.html

Posner:
*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.”*

 In Crawford, at the *en banc *stage, I submitted an amicus brief providing
some of this additional information, but the state objected and Judge
Posner denied the motion to admit the brief. I had neglected to point out
that I was a plaintiff in a related case, which is one of Posner's few
grounds for admitting opposed amicus briefs.

I have an early draft of that amicus on my google drive, but am not sure
how to attach it here.

Similarly in *Majors v Abell*, the one case I've argued in front of Posner,
he got the the merits wrong, but might not have done so if he had read the
two briefs I submitted but he rejected. The 7th circuit is very rulebound
and persnickety about briefing, which contributes to the problem he is
complaining about.

Stategically, it might be worthwhile for some set of plaintiffs to bring an
as-applied challenge to Indiana's voter ID in federal court, angling to get
the case before Posner again, or some of those who voted for rehearing *en
banc* but narrowly lost.

By as-applied I do not mean necessarily just challenging one vote, although
such a case might be a good start. An as-applied challenge could seek wider
relief, such as having all provisional votes counted, or enjoining voter
ID. I do mean a brandeis type brief with a lot of data, showing that over
1000 votes have gone uncounted, there have been numerous cases  where voter
ID wasn't implemented properly, at least one electionhas turned on whether
a provisional vote get counted, and there have been no known cases of voter
fraud being detected or deterred by the voter ID regime.

This would be particularly worthwhile if the case could get up to the
Supreme Court during the Obama administration, so that the solicitor
general could take a different tack than in Crawford. But I doubtthings
move that fast.

the Posner interview is here:
http://live.huffingtonpost.com/r/segment/judge-richard-posner-live-interview/524ced9502a76017d900006a

#<http://ballots.blogspot.com/2013/10/breaking-judge-posner-admits-he-was.html>
posted
by gt @ 4:51 PM


On Fri, Oct 11, 2013 at 4:23 PM, Schultz, David A. <dschultz at hamline.edu>wrote:

> 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.
>
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