A recent posting here suggested that the constitutional analysis of ID statutes is foundering on the issue of partisan motivation—the politics of ID. The centrality of this motivation is inescapable. it is impressing itself on a prominent jurist like Richard Posner, once dismissive of claims against ID statutes, and it is supported by the evidence considered by political scientists (see here and here). Yet the jurisprudence developed around ID has fared poorly in showing how political motivation can be incorporated into a constitutional test.

The Supreme Court’s decision in Crawford is largely at fault here, having accepted the role of partisanship, even the hard, undeniable fact of it, so long as the state could point other reasons in theory for its enactment.  So judges skeptical of ID laws have looked elsewhere for the case against ID.

Posner’s recent dissent in the Wisconsin case is an example of what happens. He recognizes the driving force of partisanship: he even locates the Wisconsin law within a trend among states with Republican leadership that have moved toward ID around the same time in circumstances that indicate a common political purpose. But his opinion treats this as the only conclusion to be drawn from other facts–facts about the comparative restrictiveness of the ID laws and the projections about their disenfranchising impact. In the Wisconsin case, he uses the Indiana law in Crawford as the baseline: he proceeds on the assumption that if he can distinguish that law from the one before him, demonstrating that Wisconsin’s law exceeds Indiana’s in “strictness”, he can break free of Crawford and reach a different constitutional result on a test cobbled together in three parts—greater strictness, broader disenfranchisement, and the absence of the impersonation fraud the State alleges that it is deterring.

The move by ID proponents has been to challenge these facts with ones of their own. Show one respect in which an ID statute is stricter than Indiana’s, and they will counter with another respect in which, they will claim, the opposite is true. Project the number of voters likely to be disenfranchised, and they will produce another projection going the other way.   We see just these defenses in the brief filed by the State of Texas before the Supreme Court in support of the ID law that the Court has now concluded may remain in effect for this election. And judges are then asked to arbiter these disputes and explain how legislators are expected to craft their laws, provision-by-provision, to avoid constitutional difficulties.

Justin Levitt has argued that the problem may be more one of appellate courts refusing to give appropriate weight to differences in the quality of factual records. This may be true, but it is a problem likely to remain with us. Deep divisions among courts lead to appellate judges treating seriously the factual records developed by lower court judges who share their world-view, and distrusting those who don’t. We have politics, in this sense, all the way through.

Of course, state manipulation of the political rules to produce partisan advantage is objectionable to both parties—but not at the same time and in the same ways. Conservative complaints about the campaign finance laws are inspired by suspicion of political motive, whether he motive is purely partisan in origin or is the product of incumbent self-dealing. Just as it is a major concern in this field, so it should be, one would suppose, in the enactment of restrictive voting laws.

The problem that ID opponents face is specifying within a coherent doctrinal framework the evidence and analysis of partisanship that would weigh against the constitutionality of these laws. And on the other side, proponents of ID should be able to say how much constitutional latitude legislators have to design restrictive ID statutes with partisan (among other possible) motives—and when they have gone too far in serving their own political interests.

Crawford failed completely in providing guidance on this issue. Worse, it is being invoked as protection for systematic partisanship in the writing of ID laws.  After reconsidering his own role in that case, Posner regrets it, and he has come to recognize the role of voter ID as a partisan political strategy that calls for careful attention from the courts. Frank v. Walker, Nos. 14-2058 & 14-2059 (7^th Cir., Oct. 6, 2014) (Posner, J., dissenting) at 14-17. The task now is to show how.