Civil Discourse Now

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Indiana Voter ID law: perhaps re-litigation will produce different results.

   In 2008, the United States Supreme Court, in a 6-3 decision, in Crawford v. Marion County Election Board, 553 U.S. 881, upheld Indiana's voter ID law. The case had come up from the United States Court of Appeals for the Seventh Judicial Circuit, where Judge Richard Posner, in a 2-1 decision, held the law was constitutional. Recently, in an interview on HuffPostLive, Judge Posner acknowledged the decision was wrong and the dissent at the Seventh, written by the late Judge Terence Evans, "was right." Judge Posner said the Seventh Circuit was not presented with enough evidence: "...I think we did not have enough information..."  Justice John Paul Stevens wrote the leading opinion for the Court. (In legal writing, there only is one court to which one refers as "the Court," and that is the United States Supreme Court.) There was no majority opinion, one in which a majority of the justices joined, although the vote was 6-3. Justice Stevens was joined in his opinion by Justice Kennedy and by Chief Justice Roberts. Justice Scalia wrote a concurring opinion in which Justices Thomas and Alito joined. 

   The principle of stare decisis establishes that case precedent controls: "The doctrine of precedent, under which it is necessary for courts to follow earlier judicial decisions when the same points arise again in litigation." Black's Law Dictionary, pocket ed., 1996, p. 590.

   In the law, there are exceptions to many things. In case precedent and stare decisis, also there are exceptions. The United States Supreme Court can reverse itself, for example, and in a relatively short period of time. In Bowers v. Hardwick, 478 U.S. 186 (1986), the Court held a Georgia sodomy statute constitutional. In Lawrence v. Texas, 539 U.S. 558 (2003), the Court reverse field and held a similar Texas statute was unconstitutional, finding that consensual sexual activity between adults is protected by the Constitution.

   Indianapolis attorney Bill Groth, who was counsel on Crawford and has been on "Civil Discourse Now," has written a response to Judge Posner's comments in the HuffPostLivve interview. Mr. Groth notes that there was a lot of information submitted to the Seventh Circuit to establish Indiana never has had a case of voter fraud such as supposed by the Republican majority that enacted the statute. I reviewed the information to which Mr. Groth refers and tend to agree with him.

   Where does that leave us? Even Justice Stevens has said the decision in Crawford is a case-specific/fact-specific decision. If the matter is re-litigated, with "new evidence," especially the nation-wide Republican effort to disenfranchise voters unlikely to vote Republican---and that is what the voter ID law aimed to do---then one might expect a different outcome at the Seventh, especially if Judge Posner were to be on the panel, although that is unlikely since he might have to recuse himself for having commented about his opinion of his earlier opinion.

   If cert were granted and the matter argued again before the Court, the outcome might be different, in the same way as Lawrence v. Texas differed, 17 years later, from Bowers v. Hardwick. First, one would think argument would include commentary from Judge Posner. As Mr. Groth points out, had Judge Posner not written the majority opinion for the Seventh, the United Staters Supreme Court would have been unlikely to grant cert and review the case. Second, we have different justices on the Court today. Justice Stevens was replaced on the Court Justice Elena Kagan, an appointee of President Obama. That potentially "flips" a crucial vote as Justice Kagan replaced Justice Stevens, the author of the leading opinion in Crawford. Justice Sotomayor replaced Justice Souter, author of a dissent in Crawford. All other matters being equal, that would mean a 5-4 vote still to uphold the Indiana law. There are two "swing" votes, those of Justice Kennedy and Chief Justice Roberts. Each has shown himself able to vote against the hard line established by "originalists" Justices Scalia, Thomas and Alito. When one adds to the equation the possibility that, before such litigation would reach the Court, another justice might retire and, if that justice is replaced by a nominee of a Democratic President (either President Obama or, possibly, President Clinton), the matter become dicier. (And, I know, the former United States Senator from New York and former Secretary of State has not been elected President of the United States; this only is speculation.)

   The decisions in Crawford and in Citizens United v. Federal Election Commission stand, to many, as decisions by the Court disastrous in their consequences. That both decisions have had such an impact on the election process is more problematic. The Court's Nineteenth Century decisions in Dred Scott v. Sandford, 60 U.S. 393 (1857) and in Plessy v. Ferguson, 163 U.S. 537 (1896), in their reinforcement of discriminatory laws, damaged the authority of the Court for years. One would hope this Court will rectify the errors in Crawford and in Citizens United. Cases this term allow the Court possibly to do so. We shall see.

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