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.”
Of course, a lot has happened since Crawford. Many more states added voting restrictions and Justice Roberts stripped out protections that we had in the Voting Rights Act. Now have a new tactic directed at Latinos where we may have first and second- class voters.
I disagree with Judge Posner on his diagnosis of the problem. I don’t think it was a lack of subject matter knowledge, really – a lack of imagination comes closer. I think it’s a lack of interaction with a broad cross-section of people on a daily basis. The municipal court judge across the street is no expert on election process, but I think if I asked him “in your experience, do poor people who move a lot and lack reliable transportation have trouble producing valid photo ID?” he would say “yes.” He would go into it knowing that. Not everyone has a bank account and a driver’s license, and there is a huge group of people who will never, ever board an airplane. They should be able to vote without navigating an ever-changing thicket of laws.
via: Election Law Blog