There is little left to be said about Judge Posner’s second thoughts, and his further thoughts about those second thoughts, about his voter ID opinion in Crawford v. Marion County Election Board. No one seems satisfied with his various statements—neither critics or supporters of the “ID” movement, and certainly not the lawyers whom he seemed to fault for failing to fully inform the Court about the consequences of ID statutes like Indiana’s. But the frustration directed at him should be tempered, just a little, by this fact: in suggesting that much legal argument before and by the courts is ill-informed about the political process—and thus about the consequences of regulation or deregulation—the Judge has a fair point. And it is a point that applies to legal decision-makers of all kinds—legislators and regulators, as well as judges.

Law is proposed, made and litigated on speculation about its effects on the political process that is often, if well-intentioned, groundless; at their worst, these projections are guided by the analyst’s ideological predisposition of the advocate. Adversaries are quick to level this accusation at their opponents and deny the charge indignantly when it comes their way.

Consider campaign finance. The roll of predictions made and disproved might include these forecasts, beginning with the 1970s and through the present day:

  • -The dominance of corporate political action committees;
  • -The effect of “soft money” bans on the national political parties;
  • -The impact of soft money reforms on the vitality of state parties (see the role of “Levin” funds in state level GOTV activity);
  • -The effectiveness of legal controls on corporate spending for election-related communications;
  • -The influence of “stand by your ad requirements” on the candidate use of negative campaign messages;
  • -The relationship of increased hard money limits to the amount of time federal candidates spend on fundraising; and
  • -The contribution of increased regulation to enhanced public confidence in government.

In each case, it cannot be said that things have turned out quite as promised or envisioned. This is one, but only one, example in the field of regulation politics, and yet it is particularly instructive because the intense activity of recent years has been characterized by plentiful predictions about the consequences of one enactment or the other. Another example of strong assertions about consequences, and now doubts, can be found in the current debate about the effects of gerrymandering—and gerrymandering reform—on political polarization. Chris Cillizza, The Political Middle is Dying. But It’s Not Redistricting’s Fault, The Washington Post (October 29, 2013, 11:23 AM),

Now, it has to be granted that there are multiple reasons outside the control of the forecasters why expectations in the field of campaign finance have not been satisfied. The courts played a major part in altering the intended course of reform, as did the Federal Election Commission’s actions or inactions. And most accounts of what has transpired over recent years rightly pay attention to the ways political actors adapted to regulatory changes. But these arguments oversimplify the complexity of the relationship between law and politics, offering instead a morality tale in which the well laid plans were doomed by judicial ideologues, shiftless and partisan regulators and bad actors trampling on the black letter of the law and insensitive to its spirit. The larger truth is close enough to what Judge Posner has to say—that those charged with making, interpreting and applying the law often don’t “understand the electoral process sufficiently well to be able to gauge the consequences of decisions dealing with that process.” Richard A. Posner, I Did Not ‘Recant’ on Voter ID Laws, The New Republic (October 24, 2013),

What makes Posner’s point all the more remarkable is that it is persuasive generally but not so much in the case of the decision he is looking back on, Crawford. That case involved an issue that, more than most, could well be seen leading to trouble—the potential for manipulation of the legal process to limit or burden the right to vote. In the history of the franchise, this has not been a rarity. In Crawford, Judge Posner missed it.

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