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.
Full Article: Crawford and the Politics of Voter ID –.