Earlier this month, the U.S. circuit court judge who wrote the majority opinion in the landmark election law case that originated from Indiana, Crawford v. Marion County Election Board, confessed that he was wrong.
"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," Judge Richard Posner wrote in his latest book, Reflections on Judging. Posner affirmed those statements in a subsequent interview.
The admission is remarkable, and in a way, quite heartening. Posner's mea culpa is further evidence of the accuracy of Dr. Martin Luther King Jr.'s optimistic observation that the arc of the moral universe bends toward justice. Slavery, segregation, and government punishment of anti-war speech were all once affirmed by the Supreme Court.
But all those decisions were eventually refuted. Now, with voter ID, a crass and blatant effort to suppress the votes of the poor and the weak so that a single political party can make electoral gains, the arc of history is again bending the right way.
That conclusion is bolstered by the fact that retired Supreme Court Justice John Paul Stevens, who wrote that court's 2008 majority decision in Crawford, gave his own interview last week suggesting he too has some regrets about his role in the case.
"I always thought that (dissenting Justice) David Souter got the thing correct," Stevens told the Wall Street Journal, citing Souter's decision that said the law would harm poor, minority, disabled, and elderly voters. "As a matter of actual history, he's dead right."
Stevens says he stands by his decision, though, insisting his conclusion in Crawford is unique to that case and should not indicate he is favor of voter ID laws.
But forgive me for not lining up to offer congratulations to the judges. Because in their full statements, Posner and Stevens attempt to save themselves some embarrassment by blaming the Crawford lawyers for not adequately informing them of the evil they were approving. In the process, they throw some wonderful advocates for human rights under the bus.
"I think we did not have enough information (then)," Posner said. "(I)f the lawyers had provided us with a lot of information about the abuse of voter identification laws, this case would have been decided differently."
Stevens echoed Posner's conclusion, saying the impact of voter ID statutes is much more serious than the evidence in the case suggested.
Let me make it very clear: I am not unbiased here. The two lead lawyers in the Crawford case were Ken Falk, then and now the litigation director of the ACLU of Indiana, and Bill Groth, a veteran labor law and election law attorney who represented the Indiana Democratic Party in the case. I am proud to have worked for ACLU of Indiana alongside Ken, including when the Crawford case was originally filed, although I was never counsel in the case. I have known and admired Bill Groth for a long time, and my students and I have learned a lot about employment law from him. More to the point, I think that Ken and Bill are two of the finest lawyers - and human beings - I have had the honor to know. The Crawford case is just one in a long line of instances where they have fought for the rights of poor, marginalized, and disenfranchised people.
Posner's and Stevens' finger-pointing in the lawyers' direction is not new. Even when they filed the suit, the Crawford plaintiffs faced some judges' complaints that there was limited evidence that the voter ID law actually prevented people from voting.
There were - and are - two problems with those complaints.
First, there was plenty of evidence of the problems the voter ID law would be creating. The Crawford lawsuit was filed immediately after the law was passed, and asked the court to prevent voter ID from ever being applied in Indiana. This kind of suit is what is known as a facial challenge, claiming that the law on its face is unconstitutional, so it should never be used to disenfranchise voters. There are real difficulties of proving likely problems in a vacuum, and these were alluded to by Judge Posner in an interview last week with the New York Times. Posner said, when he wrote his Crawford decision in 2007, it was not yet clear how partisan the voter ID law would become.
"There's always been strong competition between the parties, but it hadn't reached the peak of ferocity that it's since achieved," Posner said. "One wasn't alert to this kind of trickery, even though it's age old in the democratic process."
But the parties litigating the case in front of Judge Posner desperately tried to alert him to this very fact. The Crawford plaintiffs presented piles of sworn statements by Indiana voters who would struggle to get an ID and by experts who said the law, supported by every Indiana Republican legislator and opposed by every Democrat, would suppress voting. Many of the affidavits were submitted by elderly African American voters who were unable to obtain their original birth certificates because they were not born in a hospital. That extensive trial court record is viewable here.
The late Seventh Circuit Judge Terence T. Evans and three other Seventh Circuit judges looked at the same evidence Posner did, and suffered from no lack of alertness to the intent and likely effect of the law.
"Let's not beat around the bush," Evans wrote in his dissent from Posner's decision. "The Indiana voter photo ID law is a not-too-thinly veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic."
The second problem with Posner's and Stevens' complaint is that they were looking to the wrong side of the courtroom for the production of persuasive evidence. U.S. Supreme Court decisions before Crawford had said that the right to vote is so fundamental that a new voting restriction should not be approved unless the government can show it is necessary to serve important governmental interests.
That was the standard Judge Evans tried in vain to convince Posner to apply to the State of Indiana.
"The fig leaf of respectability providing the motive behind this law is that it is necessary to prevent voter fraud - a person showing up at the polls pretending to be someone else," he wrote in 2007. "But where is the evidence of that kind of voter fraud in this record?" In fact, there had never been an arrest for imposter voting in Indiana's history.
Judge Evans called for "strict scrutiny" of the voter ID law, or at least "strict scrutiny light." As Justice Souter wrote in his dissent to Justice Stevens' Supreme Court decision in Crawford, "(The government must) make a particular, factual showing that threats to its interests outweigh the particular impediments (to voting) it has imposed. The State has made no such justification here, and as to some aspects of its law, it has hardly even tried."
There is very good reason why U.S. law puts the burden on the government that wants to impose a law that restricts voting: the franchise is such a fundamental right that our constitution provides special protections against it being interfered with. The lawyers for the Crawford plaintiffs had little to work with in terms of a track record for voter ID in Indiana, but that should not have mattered. The burden should have been on the State of Indiana to prove the law was necessary, not the challengers to prove how it would trigger abuse.
Judge Evans' conclusion about the likely impact of the law was correct, Posner now admits. But what Posner still fails to acknowledge is that Evans was also correct in challenging the powerful Indiana officials who were defending the law, rather than the civil rights groups and individuals who brought the law to the court's attention. Posner and Stevens were looking to the plaintiffs to prove the problems with the law when they should have looked to the State to prove that voter ID was ever anything more than a cynical power grab.
Ken Falk, Bill Groth, and their clients were right when Crawford was litigated, and they are right now. Posner and Stevens were wrong when the case was litigated. Despite their recent tepid walk-backs, the judges are still wrong now.
And, long after judges worried about their legacy issue partial confessions of embarrassing errors, history is going to keep bending away from the decisions they have already come to regret.
Fran Quigley is a clinical professor at Indiana University McKinney School of Law. His book, How Human Rights Can Save Haiti, is forthcoming from Vanderbilt University Press in Spring, 2014.