Finally, the ILB asked an attorney familiar with the case for a reaction:
For Judge Posner now to admit he was wrong but then blame the lawyers for not giving him enough information by which he could evaluate the suppression claims takes real chutzpah. He was well aware of the history of race and class-based voter suppression in this country. He also had no record of voter fraud in front of him, yet placed no burden of proof on the State while holding Crawford’s attorneys to an impossible standard.And if they presented him with such an anemic record, why did Judge Evans, and later Judges Wood, Williams and Rovner en banc, who looked at the same evidence, get it right while Posner got it wrong?
The consequences of this mistake were immense. Had Posner switched his vote, Judge Sykes may have as well, and the odds of SCOTUS hearing this case decline exponentially. Indiana’s law would thus not have become a model for other voter suppression laws across the nation, and Crawford’s majority opinion may have been written by Judge Evans, striking down Indiana’s law. That would have dramatically altered the course of election law and set a completely different tone and direction, particularly in light of Posner’s prodigious reputation.