Judge Denounces His Own Ruling on the Constitutionality of Voter ID Laws


Posner, Richard 08-10

The Judge who wrote that the ruling that give Vote suppression laws legal cover admits he got it wrong. Judge Richard Posner,  who was appointed to the 7th Circuit by Ronald Reagan made the admission in his book, Reflections on Judging.

Other courts, including the Supreme Court of the United States, used Posner’s arguments in Crawford v. Marion County Election Board  as the framework to justify rulings on subsequent harsher laws that were clearly designed to suppress votes by certain classes of eligible voters.


It’s worth noting, that while Judge Posner thought he was doing the right thing at the time, he recognizes that his ruling was abused to justify vote suppression under the pretense of addressing statistically non-existent voter fraud.

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.

During an interview with Mike Sacks on Huff Post Live,  elaborated.

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.

This is a big deal for two reasons.  First, judges disavowing their own rulings is a rare event.  When that happens it means there is a real reason to revisit the question addressed in the disavowed ruling. In this case, the judge also acknowledged that an unintended consequence of his ruling is vote suppression.  if he had more information about the abuse of voter ID laws, he would have ruled differently.  Without Posner’s ruling, subsequent decisions justifying vote suppression laws go bye-bye.  It’s that simple.

Second,  rulings by other courts, including the Supreme Court hinged on Posner’s ruling. Honest judges would recognize that Posner’s denouncement of his ruling means the legal basis on which subsequent rulings found Voter ID laws constitutional no longer exists. That means the core question of whether voter ID laws are constitution should be addressed again.  More so when one considers the reality that Red States are competing to see who can come up with the most barbaric vote suppression law.  These laws don’t stop at restrictive Voter ID requirements, as seen in the laws passed by increasing numbers of red states. After the SCOTUS gutted  the preclearance formula in the Voting Rights Act, Texas and North Carolina  pass laws that are so extreme, the Department of Justice is challenging  them in the courts.  Moreover, Republicans are less shy about admitting that they are passing these laws because they can’t win elections when all eligible voters exercise their franchise.

Now that Richard Posner denounced his ruling and acknowledges that the result of it is vote suppression,  it’s time for the Courts to revisit the constitutionality of restrictive voter ID laws.

Image: University of Chicago Law School

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