Crawford provides a classic example of how appellate courts can produce bad law when attorneys at the trial level fail to develop an adequate factual record.

Justice Stevens, in his Supreme Court opinion, noted that the Crawford plaintiffs failed to offer any evidence either that otherwise lawful voters would be disenfranchised or that the Act imposed an undue burden.

While cases we've covered in WI, PA, TX and SC contain ample evidence that warrant a different result, Judge Posner is suggesting that evidence exists suggesting that even Indiana's Photo ID law should be regarded as unconstitutional.

That's a rather remarkable statement by a sitting appellate judge, and, quite frankly, one that he perhaps should not have publicly discussed in this manner given that the issue could come back before him if someone were to file an as applied challenge to the Indiana Photo ID law.

Remember our friends in Alabama, held hostage by the GOP...
http://legalschnauzer.blogspot.com.br/

Another blog for yer perusal...Good stuff
http://www.youaredumb.net/

Huge news.

The so-and-sos in Wisconsin often point to Crawford, saying right after their 'photo-voter-is-a-common-sense-reform' BS that Crawford has already definitively spoken on the constitutionality of photo voter ID.

No mention that Crawford was a facial challenge; and I would bet there will be no mention of Justice Posner's comments you cite in the coming days.

The two cases challenging Wisconsin's voter ID law in fed court begin on November 4.

See http://moritzlaw.osu.edu...ation/Frank.v.Walker.php

I served as lead counsel for the Indiana Democratic Party in Crawford and write to respond to Mr. Canning's apparently uninformed comments suggesting that the record in Crawford contained no evidence that any voter had been or would be harmed by Indiana's new ID requirements. Though my client brought this suit as a pre-enforcement facial challenge, it is untrue to state or imply that the record contained no evidence from or about voters who'd be disenfranchised or unnecessarily burdened by the law's requirements. If anyone would take the time to review the voluminous record of affidavits, deposition transcripts, and declarations submitted in support of our summary judgment motion, as well as by the ACLU which represented several individuals and associations, it will be obvious that the problem with Posner's ruling was not the lack of evidence but that, as he now concedes, he applied the wrong legal standards, including a too strict burden on the Plaintiffs and no burden whatsoever on the State to prove that the "problem" the State sought to ameliorate (imposter voting) existed. He also made no effort to inquire whether the new law would unnecessarily burden or even disenfranchise more voters than the number of imposters it would deter or detect. Not only did the record before the district court, which is accessible at no cost here, include a large number of affidavits from voters who did not have and would be unable to obtain a photo ID, it included expert testimony including from a renowned political scientist at Indiana University who opined, without contradiction, that this law would increase the costs associated with voting and thus have an adverse impact on turnout.

Judge Posner's admission of errer is indeed a stunning one. Had he switched his vote, the Indiana law would have been declared unconstitutional, and the odds that SCOTUS would have granted cert. would have declined exponentially, given Posner's prodigious reputation. In short, there would have been no Crawford decision handed down by SCOTUS in 2008 and many other voter suppression laws subsequently enacted would not have enjoyed the broad license many now (though wrongly) claim Crawford provides.

Re Bill Groth @4.

I haven't actually reviewed the lengthy trial record. To the extent that the record reflects otherwise, I would agree that my comment was under-informed, and you have my apologies for that, sir.

My comments as to the inadequacy of the record were based on those offered by Justice Stevens in his lead opinion in the SCOTUS decision in Crawford, to wit:

While the actual trial record may, as you suggest, Mr. Groth, substantiate that "the problem with Posner's ruling was not the lack of evidence," that conclusion is inconsistent with the reasons given for Judge Posner's newly announced confession of error in Crawford.

In recanting his earlier decision, Posner said: "we...weren’t really given strong indications that requiring additional voter identification would actually disfranchise people entitled to vote."

In short, where you are suggesting that Posner is simply admitting a legal error, Posner claims that the error was based upon an inadequate record.

This is a story about someone who did something and now he regrets it. It's bogus for him to blame the legalities.

There is no way for an educated and experienced judge to misunderstand the point of these voter ID laws, and who wants them, and what they are supposed to do.

He did the wrong thing, he probably know it at the time, and now that the politics around this stuff is really starting to metastasize, he doesn't want his name attached to it.

Not a profile in courage here folks.

Robert LaFollette of Wisconsin must be ashamed of those Wisconians that support voter ID laws, a state that has been at the front of fairness, honor and dignity. He is probably wondering how so few could do away with the ideas this country, and his state in particular, have led the nation in fairness, honor and dignity

Posner is un-repentant because he still refuses to tell the truth. A person who can do what he did and has to at least tell the truth in order to repent, right judge?

Gosh, I'm so sorry now that I let the dogs out last week, and they've been running around the neighborhood biting people ever since, and nobody can do anything anymore.
Golly-Gee, I'm so regretful, and I would make a different decision now, but it's too late.

I'm so sorry I let the dogs out.
They were rabid and aggressive, and I thought it would be good for their health.

Who thought anything bad could happen?

Please forgive me.
Thank you all very much for your kindness.

I would agree with Bill Groth @4 that I had erred in suggesting that he presented "no" evidence of voter disenfranchisement and undue burden. That said, I would note that former Supreme Court Justice John Paul Stevens, who authored the lead opinion in Crawford agrees with my assessment that Groth failed to develop an adequate trial record.

Rick Hasen's Election Law blog reports [emphasis added):

Recall, also, that we took TX Attorney General Greg Abbott (R) to task for his statement that the "Supreme Court has already ruled that voter ID laws do not suppress legal votes..."

Stevens validates our claim that "the U.S. Supreme Court never ruled Photo ID laws 'do not suppress legal votes.'"

EAT THAT TONY! You unconstitutional mob bastard/bitch.

An fer any one who's wonderin ,that would be the dishonorable scalia.