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.”
Here’s the quote from Posner’s book, which Mike Sacks flashed on the screen: “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 law now widely regarded as a means of voter suppression rather than fraud prevention.”
I wrote a Washington Post oped criticizing Judge Posner’s opinion in Crawford, and urging the Supreme Court to take the case. That was, as I admit in the Voting Wars, a terrible thing to wish for (though I doubt my oped had anything to do with the Supreme Court taking the case).
UPDATE: Posner had previously criticized the Shelby County decision.