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Judge Richard Posner

Judge’s admission exposes state voter ID law

Federal appeals court judges rarely acknowledge mistakes, but 7th Circuit Court Judge Richard Posner has owned up to a big one. In Indiana’s landmark voter ID case, the court blew it, according to the judge.

Posner’s majority opinion in Crawford vs. Marion County Election Board sent the case to the U.S. Supreme Court, where the law was upheld and stands today as the template for voter-suppression legislation across the country. His stunning admission should lend energy to the fight against efforts to deny poor and minority citizens their constitutional right to vote.

Posner wrote in his new book, “Reflections on Judging,” that the ruling he wrote in the 2007 case upheld a law “now widely regarded as a means of voter suppression rather than fraud prevention.” Indiana’s law was pushed by Republican lawmakers and Todd Rokita, then the secretary of state. At the time the bill was considered, Democrats estimated that nearly 1 million registered voters in the state did not possess the required ID. Former Indianapolis legislator William Crawford lent his name to the lawsuit challenging its constitutionality.

Posner, in a video interview with the Huffington Post, responded to questions about the appellate court decision. He blamed plaintiffs’ attorneys, noting the court wasn’t “given strong indications that requiring additional voter identification would actually disenfranchise people entitled to vote.”

Judge Terence T. Evans, the dissenting vote on the three-judge panel, “was right,” Posner said.

“Let’s not beat around the bush: 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,” wrote Evans, who died in 2011.

But the majority opinion, affirmed by the U.S. Supreme Court in 2008, became the foundation for GOP efforts elsewhere to restrict access to the polls. Posner told the New York Times last week that the political environment has changed since the case was heard. “There’s always been strong competition between the parties, but it hadn’t reached the peak of ferocity that it’s since achieved,” he said. “One wasn’t alert to this kind of trickery, even though it’s age old in the democratic process.”

The trickery has continued with a continuing assault on voter rights. “Fraud” is the inevitable justification for each new measure. The current Indiana secretary of state, Connie Lawson, unveiled a new state voter registration form just this month with the obligatory reference to fraud. Prosecutions for voter fraud, of course, are exceedingly rare. Save for the felony conviction of Lawson’s predecessor, Republican Secretary of State Charlie White, charges are virtually unheard of in Indiana.

The Supreme Court decision left room for examining evidence that voter ID laws disenfranchise voters. Those examples are growing and will inevitably form the basis of new challenges and new precedent.

In the meantime, Posner’s admission of error should stand as the definitive word against further attacks on voter rights. Supporters of similar suppression laws have used the appeals court ruling as a battering ram against mostly minority voters with obstacles to obtaining birth certificates or other acceptable ID verification. That tool is rendered ineffective by the judge’s mea culpa.