Posner’s “About Face” on Crawford Continues Turning About

Two weeks ago, Jonathan noted that in an interview with Mike Sacks of the Huffington Post, Judge Richard Posner said that he thought he’d been wrong to uphold Indiana’s voter ID statute in Crawford v. Marion County Election Board.

In more recent comments (here at The New Republic which are clarified here at the Wall Street Journal law blog) Judge Posner has now said that he was wrong to have said that he was wrong. His current position is that he “may well have” been wrong to uphold the statute, but that he does not know, because “we judges in the Crawford case did not have sufficient information about the consequences of an Indiana-type photo ID voter qualification law to make a reliable decision regarding its constitutionality.”

Rick Hasen argues that Judge Posner was right the second time. Ed Whelan, meanwhile, argues that “Posner’s vacillation and contradictions on the Indiana voter ID case provide further evidence that he is wrong to advocate an open-ended judicial approach in which it is desirable to have the soundness of a decision turn on the judge’s estimation of its ‘likely consequences.’” On this particular controversy, I think this is a good reminder not to give undue weight to one judge’s expressed views about judging, even when those views are autobiographical — and even if those views provide a good “hook” for legal bloggers.

As for the issue of voter ID more generally, I do not yet think we have reached common ground on the basic first principles. The text of the Constitution neither guarantees a general right to vote nor includes a general prohibition on partisan decisionmaking. At the same time, some of the Court’s decisions (including Crawford) suggest that the Constitution does regulate partisan burdens on voting, but it is not clear to me when, or on what basis. It seems to me that before we can usefully proceed in analyzing the constitutionality of voter ID laws, we would need to establish what rules the Constitution imposes here.