Earlier this week Rick Hasen blasted Judge Easterbook’s opinion upholding Wisconsin’s voter ID requirement as cavalier with the facts and “heartless and dismissive” in tone. But in one respect the opinion is extremely helpful: it asks the right questions.
Three questions foregrounded by Easterbook are particularly important to the future of the Voting Rights Act:
What limiting principle keeps the Section 2 “results test” from obligating every state to tinker with its election machinery until rates of voter participation by race have been equalized? Insofar as Section 2 conditions state obligations on past or present societal discrimination, how does this square with the 14th and 15th Amendments, which by their terms reach only state action? To what extent are the “fact” questions in Section 2 cases questions that district judges should try to answer on the basis of expert testimony, as opposed to questions of belief, faith, or policy that ought to be settled by appellate courts as a matter of law?
As this post will explain, Judge Easterbook’s answers to these questions are not convincing. But unless proponents of robust voting rights protections come forth with better answers—answers that a conservative judge can appreciate—Easterbook’s opinion is likely to prove a harbinger of things to come at the Supreme Court.