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

Sat Oct 12 07:00:19 PDT 2013

In the Supreme Court, Stevens -- writing for the Crawford majority -- upheld
voter ID because of a failure in evidence. Plaintiffs simply failed to
adduce sufficient evidence to prove that Indiana's voter ID law was
discriminatory because the statistical support for the argument was too
generalized. This does not mean that voter ID laws in general will be
upheld. There is better social science data and analysis now and hopefully
experts who are better prepared to drill down into it. 

There are limits to what we can expect Judges to take judicial notice of -
even left wing versions of judges like Posner who were somewhat notorious in
discovering social science as a matter of logic when wishing to expand law
and economics theory. 

Cynics might wonder if Posner might have been more disposed to exercise
himself in this way then if the Plaintiffs were somehow of a right wing
stripe. I doubt it. I suspect the country has changed much more than Posner:
the left has moved to the right - closer to where Posner was, and the right
has moved way off into la la land.

Marc Greidinger

Attorney at Law

(703) 323-4661

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick
Hasen
Sent: Friday, October 11, 2013 4:37 PM
To: Lorraine Minnite
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] Judge Posner Admits He Was Wrong in Crawford Voter ID
Case/still more news

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-intervie
w/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/AR200709180
1572.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).

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3Fp%3D55927&title=Breaking%3A%20Justice%20Posner%20Admits%20He%20Was%20Wrong
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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>  

<http://live.huffingtonpost.com/r/segment/judge-richard-posner-live-intervie
w/524ced9502a76017d900006a>  my transcription from HuffPostLive:

"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."

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3Fp%3D55925&title=Judge%20Posner%20on%20Campaign%20Finance&description=>
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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-rosenjeffre
y-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.

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ndence%20Corruption&description=> Share

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-votin
g-rights-act#.Ulg8QqeShYI.twitter> 

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3Fp%3D55921&title=Andrew%20Cohen%20Responds%20to%20WSJ%20Editorial%20on%20Ju
stice%20Stevens%20and%20Voter%20Fraud&description=> Share

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
<http://electionlawblog.org/?p=55919> 's History on the Original Meaning of
Corruption 

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-su
preme-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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essig%E2%80%99s%20History%20on%20the%20Original%20Meaning%20of%20Corruption&
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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 92697-8000
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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