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.
Ed Whelan in the National Review is frustrated with Judge’s Posner’s renunciation of his Crawford opinion on voter ID. He contends that Posner’s admission of error—and his new, more critical judgment about voter photo ID requirements—is a demonstration of the flaws in the “pragmatic” adjudication that the Judge has long championed. Posner is now convinced that photo ID requirements have led to voter suppression, and Whelan counters that Posner is just expressing a personal judgment, “sloppy and ill-considered,” that follows from an open-ended mode of judging that invites subjective judgments.
Category: Voting Rights

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.