Judges Easterbrook and Posner square off in their opinions on the Wisconsin voter ID statute and their exchange comes down to two questions: the differences in the design and effects of ID statutes, and the significance of partisan motivation. Frank V. Walker, Nos. 14-2058 & 14-2059 (7^th Cir., Oct. 6, 2014). Easterbrook is casual, if not careless, in discussing the differences, and in his treatment more generally of facts. Posner insists on their importance. Easterbrook sweeps aside the question of political motivation, and Posner does not.

Although not clear from the clashing opinions, the questions are related: the questions of fact are closely connected to the question of motivation. Without this attention to motivation, then the differences between statutes —such as which IDs are accepted, or how lower-income prospective voters are supported—are judged in a vacuum, on the supposed reasonableness of the legislature’s judgment. One judge will disagree with the judgment, and another won’t; one, like Easterbrook, will see the Crawford opinion as controlling because the burdens imposed by Wisconsin are not “materially greater” than the Indiana law the Court upheld, id. at 13 (majority opinion) while the other will say, as Posner did, that the statute in Wisconsin is quite different, being of the “strict variety.” Id. at 18 (Posner, J. dissenting).

But on the Posner analysis it is hard to decide where the distinction might lie between a statute that, though different from Indiana’s, passes muster, and one that is too “strict.” Posner describes the differences he has picked out as “not trivial.” Id. at 7. The point at which the law passes over into unconstitutional territory through non-trivial differences with Indiana is not precisely identified. Posner might be understood to say that, because of the absence of evidence of voter impersonation fraud, any law stricter than Indiana’s in any meaningful particular, is unconstitutional, if it yields disenfranchisement on a scale greater than that produced by the Indiana law. But he does not say that and he may not mean it, and it is not at any rate a test clearly indicated by Crawford.

If, however, a legislature acts to make the voting rules restrictive in order to advantage one political party over another, then the complexities entailed in determining impermissible “strictness” are less central to the analysis. It is here, on the question of how to factor into the decisional criteria the element of motivation, that the opinions, each in its own way, reveal their limitations.

Easterbrook wants little to do with the question of motivation. He chooses to limit any discussion of it to one part of his opinion, giving it the shortest shrift. He cites from Crawford for the suggestion that a statute that is otherwise neutral and nondiscriminatory in its application is not tainted by the presence of party partisan motivation. Crawford v. Marion County , 553 U.S. 181, 204 (2008). Once he has dispensed with the question of partisan motivation, the insouciance he displays in the balance of his analysis is hardly surprising. He commits errors of fact but it is evidently Easterbrook’s view that the facts he cites are true enough. They are “true enough” for a legislature genuinely concerned with protecting against voter impersonation and diminished public confidence in the electoral process.

“True enough” fails as the standard, however, if the statute has been drawn for a partisan purpose. Then the legislature’s choices, as in demanding more ID for voting than for other government functions or services, reinforce the conclusion of partisan manipulation.

Posner appreciates the role of legislative motivation. He quite correctly speaks of a “charged political culture” as the background against which Wisconsin among other states have enacted these requirements, Frank at 5 (Posner, J., dissenting), and he notes at a few points that ID requirements discourage voters that will be predominantly Democratic. Id. at 13, 23, 28, But he spends less time on this and more on the questions of fact—on what the majority got wrong on the facts, and on the reasonableness of the legislative judgment about what ID requirements best serve interests in clean elections and public confidence. And, most fundamentally, Judge Posner does not show as a matter of doctrine how the issue of motivation should guide the courts’ understanding of legislative behavior and of the limits that partisan behavior imposes on how ID statutes may be drawn.

Judge Posner would distinguish partisan motivation that reflects “politics as usual” from what he terms a dangerous “asymmetry” between the strict ID statute and the evidence for voter fraud. Id. at 18. This is the elaboration he offers on the point:

 There is evidence both that voter-impersonation fraud is extremely rare and that photo ID requirements for voting, especially of the strict variety found in Wisconsin, are likely to discourage voting. This implies that the net effect of such requirements is to impede voting by people easily discouraged from voting, most of whom probably lean Democratic.

 Id. Posner is getting at an important point here but not clearly and therefore not successfully. What statutes fall within the category of the “strict,” and how many falling short of the fully “strict” still raise the same concerns as the statute Wisconsin passed? What should courts be looking for when reviewing statutes for this problem? Posner’s concluding sentence, moreover, turns away from motivation to the negative “net effect” on voting by voters affiliated with or tending to cast their ballots for one party (in this case, Democrats).

The Seventh Circuit dissent in Crawford appreciated that the case was about partisan design and self-interestedness. Posner then writing for the majority did not, and the Supreme Court subsequently determined that actual partisan motivation was acceptable if the legislature, voting on party lines, could claim in theory other purposes—like preventing impersonation fraud–and a more or less limited population of adversely affected voters.

Easterbrook holds on tightly to Crawford, as one might imagine he would. Posner grasps the failure of Crawford: it was a failure to take the politics of ID seriously and equip the courts to deal with it. In his dissent, he takes steps toward recognizing the problem. He makes less progress on the question, which is the urgent question, of how to address it.