Judge Posner’s Regret

October 17, 2013
posted by Bob Bauer

So far the commentary on Judge Richard Posner’s expression of regret over his opinion in Crawford v. Marion County Election Board has featured the reaction of those who object to voter photo ID requirements and now feel vindicated. This is understandable, but if Posner just got it wrong, there is only so much left to say, and he might expect credit for his candor. But Judge Posner’s explanation of Crawford is unsatisfying, and it does not really get at the problem with the approach he took in that case.

One difficulty with the explanation is that it is at odds with the larger point Posner wishes to make about the requirements of sound judging. This is his point: that judges don’t possess the information or knowledge to decide cases of a technical nature. About politics, he states, they can be positively “naïve,” as the Court was in Citizens United: they “enmesh themselves deeply in the electoral process without understanding it sufficiently well to be ale to gauge the consequences of their decisions.” Richard A. Posner, Reflections on Judging 84 (2013). It is in this context that he decides to “plead guilty” to having overlooked the partisan abuses of photo ID. Id. But he adds his doubts on the same grounds about recent campaign finance decisions and about political gerrymandering which, he states, is “a practice that in conjunction with the Court’s endorsement of promiscuous campaign donations seems to have poisoned our national politics.” Id.

Now, whether one agrees or disagrees with these statements, nothing in the presentation suggests that Posner is bringing to it the expert knowledge that finds lacking in the judiciary as a whole. For example, partisan gerrymandering is a legitimate concern, but the extent of the problem as it bears on political polarization is a subject of dispute. Some may agree with Posner, some may not, and others may take up a position in the middle; but to disagree with Judge Posner on this question would not establish that the dissenter was deficient in a sophisticated understanding of the electoral process.

Judge Posner is not especially convincing, either, when giving reasons for his position in Crawford. He suggests that party competition has grown fierce in the years since Crawford, and he did not anticipate the intensity it would achieve. This comes as a surprise, since Posner has defended Bush v. Gore in part as the Court’s pragmatic reluctance to allow political combat over the election results to catapult the country into chaos. Richard A. Posner, Breaking the Deadlock: the 2000 Election, the Constitution, and the Courts (2001). Evidently, at that time, the Judge was sensitive to the ways that political actors might aggressively manipulate the electoral process to achieve partisan objectives. Why he relaxed his suspicions six years later is not clear. And in his interview with the New York Times, he both suggested that he did not foresee this partisan conflict and acknowledged somewhat inconsistently that “it’s age old in the democratic process.”

So what was really going in Crawford? Then Posner famously questioned the value of the vote to the individual voter: “the benefits of voting to the individual voter are elusive (a vote in a political election rarely has any instrumental value, since elections for political office at the state or federal level are never decided by just one vote)…” He proceeded to say:

[E]ven very slight costs in time or bother or out-of-pocket expense deter many people from voting, or at least from voting in elections they’re not much interested in. So some people who have not bothered to obtain a photo ID will not bother to do so just to be allowed to vote, and a few who have a photo ID but forget to bring it to the polling place will say what the hell and not vote, rather than go home and get the ID and return to the polling place.

472 F.3d 949, 951 (7th Cir. 2008). So, in weighing the competing arguments, Judge Posner rated quite low both the benefit to any individual voter of the franchise and the value that any number of voters attach to it. Some won’t bother to get an ID, and others, having one but leaving it behind, don’t care enough to go get it—for them it is a “what the hell” proposition, even if, as he states elsewhere, “most people who don’t have photo ID are low on the economic ladder” and might face meaningful costs in acquiring IDs or having to make additional trips to the polling place. Id. But Judge Posner can only care so much if they don’t, and if the benefit of the vote is “elusive.”

In the pragmatic reckoning that Judge Posner favors, the state imposing an ID requirement has an insuperable advantage over the weaker claims of the individual voter. It is nonetheless apparent that the Judge’s stumble here was not attributable to a lack of information, or, as he has suggested, weaknesses in the quality of advocacy. It was a problem with his view of popular political participation—a failure of democratic imagination.

Leave a Reply