Incredible: Judge Posner Said He Did Not Recant on Voter ID

Here is his New Republic piece:

I did not say that my decision, and the Supreme Court’s decision affirming it (written, be it noted, by the notably liberal Justice Stevens), were wrong, only that, in common with many other judges, I could not be confident that it was right, since I am one of the judges who doesn’t understand the electoral process sufficiently well to be able to gauge the consequences of decisions dealing with that process. I may well have been wrong in Crawford, because laws similar (I do not say identical) to Indiana’s represent a “type of law now widely regarded as a means of voter suppression rather than of fraud prevention” (emphasis added)—“now” referring to the fact there has been a flurry of such laws since 2007, when my opinion in the Crawford case was issued, and they have been sharply criticized.

But here’s Judge Posner in his interview with Mike Sacks on Huff Post Live:

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.”  [UPDATE: Ed Whelan writes to say that he thinks my transcription is in error and that Judge Posner said that Judge Evans “was” right rather than “is” right.]

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 type of law now widely regarded as a means of voter suppression rather than of fraud prevention.” [Updated]

Now Sacks is justifiably incredulous.

Readers and listeners should judge for themselves.

(Here’s my Daily Beast piece from last week: Why Judge Posner Changed His Mind on Voter ID.)

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