UPDATED with response to election law professor Rick Hasen's critique...
By Brad Friedman on 10/16/2013, 2:54pm PT  

[This article now cross-published by The Progressive...]

This story just keeps getting more insane.

We recently told you --- at The BRAD BLOG and at Salon --- about Judge Richard Posner's remarkable disavowal of his own majority opinion in the 7th Circuit Court of Appeals case that became the basis for the U.S. Supreme Court's 2008 approval of the Republican implementation of polling place Photo ID restriction laws.

Though it's the only court case of note that Republicans are able to cite in claiming the "constitutionality" of such laws, last week, during an interview with HuffPo Live, Posner recanted the opinion he wrote in the case. He claimed that he "did not have enough information...about the abuse of voter identification laws," to make a better decision in 2007's Crawford v. Marion County Election Board. If he had, he said, the Indiana case "would have been decided differently."

Of course, at the same time, he noted that the dissenting judge in the case seems to have had no trouble ruling correctly at all. Judge Terence T. Evans blasted at the beginning of his dissent in the case [PDF]: "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."

Evans "was right", Posner now admits, and his own decision was wrong. Apparently, Evans somehow did have the information needed to decide the same case correctly, even if Posner now claims that he, personally, did not for some reason.

Today, the New York Times finally decided to cover Posner's admission, and they add at least one more head-spinning element to all of this...

Posner, according to the Times' John Schwartz, "seemed surprised that his comments had caused a stir, and said much had changed since Crawford."

"There's always been strong competition between the parties, but it hadn’t reached the peak of ferocity that it's since achieved," the otherwise-esteemed, Reagan-appointed federal judge told Schwartz during a phone interview. "One wasn't alert to this kind of trickery."

Really? One wasn't alert to it? The Crawford case was heard and decided by Posner in 2007. His ruling was then affirmed by the U.S. Supreme Court in 2008.

In the meantime, we began covering Republican polling place Photo ID chicanery since at least earlier 2005 at The BRAD BLOG, ever since the tactic of pushing for such laws began to emerge as a full blown strategy right after the 2004 election, when the GOP quickly turned evidence of massive Republican fraud in Ohio into specious claims of "voter fraud" by Democrats and ACORN.

As we exposed in dozens, if not hundreds of stories here at The BRAD BLOG and elsewhere, the GOP polling place Photo ID voter suppression scheme was kicked off that year with the Congressional testimony of top level GOP officials and operatives pretending to be "long time voting rights advocates."

They called themselves the American Center for Voting Rights and didn't bother to reveal that they were founded by the national general counsel to Bush/Cheney '04 Inc., and the former Communication Director for the Republican National Committee.

We covered the ACVR scheme extensively, in detail, for years. From their initial misleading testimony to Congress; to the pretend "national election reform commission", co-chaired by Bush family capo James Baker III and a hoodwinked former President Jimmy Carter, which they created in order to call for Photo ID restrictions; right up through their sudden disappearance after being exposed at the very center of the Bush Administration's infamous U.S. Attorney Purge (which occurred, in no small part, because the Administration's own appointed prosecutors refused to carry out phony "voter fraud" prosecutions meant to disenfranchise Democratic-leaning voters and to support the party's disingenuous claims that polling place Photo ID restrictions were needed to stop them in the future.)

[See much more of our coverage of the ACVR scandal and its related scams here. Of course, while we were the first to expose them, we weren't the only ones to cover the ACVR and their Photo ID schemes. See, for example, election law professor Rick Hasen's 2007 story at Slate, "The Fraudulent Fraud Squad: The incredible, disappearing American Center for Voting Rights", which made liberal use of our years of research by that point. Hasen was even quoted in today's NY Times article. Eventually, mainstream corporate media outlets covered the GOP's ACVR scam as well. ]

If Judge Posner was not "alert to this kind of trickery" by 2007, it's certainly evidence that he never read The BRAD BLOG. No surprise there, given that, not long after the 2004 election, a reporter at New York Times smeared investigative coverage like ours, of what happened during that election, as little more than "conspiracy theory" to be disregarded by serious people like Judge Posner.

But, in truth, if Posner's claims are to be taken at face value, it's far more of an indictment of the mainstream corporate media themselves and their years of terrible, false balance coverage of such issues. That same coverage continues even today.

Need evidence? Note the completely unhelpful, completely uninformative third paragraph from Schwartz' NYTimes story today on Posner's admission:

Proponents of voter identification laws, who tend to be Republican, say the measures are necessary to prevent fraud at the polls. Opponents, who tend to be Democrats, assert that the amount of fraud at polling places is tiny, and that the burdens of the laws are enough to suppress voting, especially among poor and minority Americans.

Huh. Some think such laws are meant to prevent fraud, while others think fraud at the polls isn't a problem, according to the Times. Which of those two schools of thought are more correct? Which has actual, independently verifiable evidence --- mountains of it --- in support of their assertions? And which of the two claims has zero evidence to back it up and is made up out of whole cloth?

Even today, the New York Times doesn't even bother to tell readers. (Actual answer: Mountains of evidence that polling place Photo ID schemes are meant to disenfranchise legal, Democratic-leaning voters and zero evidence that polling place voter fraud of the type that might be deterred by Photo ID restrictions are any real problem at all.)

Gosh, we wonder how it could be that a smart, well-read man like Posner had no idea, by 2007, that there was gambling in Casablanca? Perhaps, before he does any more damage to our democracy, he may want to broaden his reading list a bit by adding some more reliable sources to it, other than the New York Times and its false equivalence ilk.

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UPDATE 10/17/13: Over at his Election Law Blog today, UC Irvine election law professor Rick Hasen, a source quoted in the John Schwartz' NYTimes story discussed above, disagrees with our assessment of the false balance we cited in the piece. Hasen's argument, essentially, is that though the sentence we directly quoted is "one of those 'he said, she said' type sentences," the rest of the article, including Posner's remarks "about 'trickery' as well as the statement quoted from Posner’s book that voter id is 'a type of law now widely regarded as a means of voter suppression rather than of fraud prevention'," as well as his own quotes in the story, provide the balance needed to inform readers about the facts of this type of disenfranchising Photo ID restriction laws.

"Doesn’t look like false equivalence to me," says Hasen.

We disagree with the professor on this one. Yes, Posner's already questionable opinions on this are included in the NYTimes piece. Also Hasen's remarks that the judge's admission "gives to Democrats an 'I-told-you-so' argument" in response to the Republican case that Schwartz uncritically cites as being: "the measures are necessary to prevent fraud at the polls."

Hasen also is quoted saying that there's a recent shift in some jurists opinions on Photo ID cases where "both Democratic- and Republican-leaning judges" are reining in more of these laws of late.

The NYTimes article, however, never bothers to offer either hard facts or evidence for either "side" of the argument, though they are plentiful. Had they done so, they could have informed readers that the concerns stated by Democrats have many facts to support them, while the claims made by Republicans have absolutely none. Instead, we're simply left to decide as best as we can, from the thoughts of the judge and the election law expert, who is right about these laws.

Schwartz could have offered us independently verifiable facts --- and there are mountains of them, as mentioned --- about the disproportionately anti-Democratic effect of these laws, and the complete dearth of evidence to support the claims made by Republicans (and forwarded yet again in this NYTimes article), which disingenuously argue that such laws "are necessary to prevent fraud at the polls."

Schwartz never does that, even though he offered the false argument in paragraph three of his story. As we argued in the initial item above, he should have.

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