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Judge: my voter ID ruling was wrong

A federal appeals court judge said Friday that he erred when writing a decision which served as a key precursor to the Supreme Court's 2008 ruling upholding the constitutionality of Indiana's voter ID law.

In an interview Friday on HuffPostLive, Seventh Circuit Judge Richard Posner said his opinion finding the Indiana law constitutional was mistaken, due to the court not having sufficient information about how the law could be used to prevent or discourage people from voting.

"Do you think that the court got this one wrong?" HuffPo's Mike Sacks asked.

"Yes. Absolutely. And the problem is that there hadn’t been that much activity with voter identification," Posner said. "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."

Posner authored the 2-1 opinion in Crawford v. Marion County, which likely influenced the Supreme Court in its 6-3 decision upholding the statute in the same case.

"There was a dissenting judge [on the appeals court panel], Judge Terence Evans, since deceased, and I think he was right," Posner said. "But at the time I thought what we were doing was right. It is interesting that the majority opinion was written by Justice [John Paul] 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 [my new] 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."

Technically, there was no majority opinion in the Supreme Court case. Stevens wrote for Chief Justice John Roberts and Justice Anthony Kennedy, upholding the law. Justice Antonin Scalia filed an opinion concurring in the judgment, joined by Justices Clarence Thomas and Samuel Alito. The dissent was written by Justice David Souter, with Justices Ruth Bader Ginsburg and Stephen Breyer signing on.

The Supreme Court's ruling in the Indiana voter ID case is a potentially serious obstacle to efforts by private groups and the Justice Department to target voter ID laws in the wake of the Supreme Court ruling earlier this year striking down the requirement the Voting Rights Act imposed on all or parts of 15 states to get advance clearance for voter ID and similar laws. But the Crawford decision is not a complete obstacle to such lawsuits and comments like Posner's may weaken the case's impact in the legal battle currently underway in states like Texas and North Carolina.