Election Law

Posner: I may have been wrong on voter ID, but the point was about about the dearth of data

Federal appeals judge Richard Posner is surprised by all the hullabaloo over one sentence in his recent book Reflections on Judging.

The sentence reads: “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 type of law now widely regarded as a means of voter suppression rather than of fraud prevention.”

Posner writes in an article for the New Republic that the sentence was in a book about certain deficiencies in the federal judiciary, in a chapter about the challenge of complexity. The intent, he says, was to emphasize the importance of empirical data showing the likely consequences of court decisions.

Posner says his 2007 opinion—Crawford v. Marion County Election Board—showed an awareness that the voter ID law could deter some people from voting, but the judges didn’t have good data to balance the good and bad effects of the law.

Posner thinks some journalists who reported on his sentence about the voter ID opinion misstated his view of the case.

“I did not say that my decision, and the Supreme Court’s decision affirming it (written, be it noted, by the notably liberal Justice Stevens), were wrong,” Posner says, “only that, in common with many other judges, I could not be confident that it was right, since I am one of the judges who doesn’t understand the electoral process sufficiently well to be able to gauge the consequences of decisions dealing with that process.

“I may well have been wrong in Crawford, because laws similar (I do not say identical) to Indiana’s represent a ‘type of law now widely regarded as a means of voter suppression rather than of fraud prevention’ (emphasis added)—‘now’ referring to the fact there has been a flurry of such laws since 2007, when my opinion in the Crawford case was issued, and they have been sharply criticized. …

“The point I was making in my book in mentioning the Crawford case was not that the decision was right or wrong (I was not, as one journalist has it, ‘publicly recanting’; I had not ‘switched sides’), but that in many cases judges can’t have any confidence in the soundness of their decisions if they do not have empirical data concerning the likely consequences of deciding the case one way rather than another. …

“Given such empirical uncertainty, we naturally were reluctant to invalidate the law in the name of the Constitution; to have done so would have plunged the federal courts deeply into the management of the electoral process—a managerial responsibility that sections 1 and 4 of Article I of the Constitution actually consign to the states. …

“My book argues that judges need a better understanding of the consequences of their decisions—including decisions that may have a profound impact on elections. I stand by that argument.”

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