Is there any prohibition against passing election laws that discriminate against Democrats?

August 8th, 2013

Rick Hasen remarks, with tongue in check, that “only in America” would “Texas defend[] itself against claims it discriminated against minority voters by claiming it discriminated against Democrats.”

DOJ’s accusations of racial discrimination are baseless. In 2011, both houses of the Texas Legislature were controlled by large Republican majorities, and their redistricting decisions were designed to increase the Republican Party’s electoral prospects at the expense of the Democrats. It is perfectly constitutional for a Republican-controlled legislature to make partisan districting decisions, even if there are incidental effects on minority voters who support Democratic candidates.

The following sentence offers some citations for that point:

See Hunt v. Cromartie, 526 U.S. 541, 551 (1999) (“[A] jurisdiction may engage in constitutional political gerrymandering, even if it so happens that the most loyal Democrats happen to be black Democrats and even if the State were conscious of that fact.”); League of United Latin Am. Citizens, Council No. 4434 v. Clements, 999 F.2d 831, 854 (5th Cir. 1993) (en banc) (“[Section 2 of the Voting Rights Act] is implicated only where Democrats lose because they are black, not where blacks lose because they are Democrats.”). The redistricting decisions of which DOJ complains were motivated by partisan rather than racial considerations, and the plaintiffs and DOJ have zero evidence to prove the contrary.

I would add, indirectly, Crawford v. Marion County Election Board, the Indiana Voter ID opinion authored by Justice Stevens to that list.

This largely echoes a point I made about the VRA. To summarize, restricting the franchise, invariably, hurts Democrats, many of whom are minorities. Strictly enforcing the VRA, which expands the franchise, helps Democrats, many of whom are minorities. This political reality helps to explain, cynically, why Republicans are in favor of things that make voting harder (voter ID) and Democrats oppose it. Sure, we could also chalk it up to noble ideas about representation and democracy, but at its core, most of these decisions are political. And both parties, when in power, gerrymander to their hearts content to dilute the other party’s power. As I noted on Houston NPR last week, I find these practices deplorable, but constitutional. I personally oppose efforts to make voting harder, but don’t see anything within the 14th Amendment that stops it, so long as it is in fact based on politics, not race.

Now, are there any other constitutional limitations on the ability of a state to act in purely partisan fashions that dilutes the votes of others?

Rick also links to a forthcoming article in the Harvard Law Review by Sam Issacharoff, titled “Beyond the Discrimination Model on Voting,” that answers the important question of how we view voting laws beyond the scope of race and the Voting Rights Act.

Here is the abstract:

The Supreme Court’s contentious decision in Shelby County v. Holder closes the chapter on the most important and most successful of the civil rights laws from the 1960s. For the majority of the divided Court, the preclearance requirements of the Voting Rights Act for changing electoral practices stigmatized sovereign states and no longer bore a logical relation to the voting problems of today. That combination proved fatal for Congress’s efforts to protect minority voters through the 14th and 15th amendments. At the same time, the Court in Arizona v. Inter Tribal Council of Arizona reaffirmed expansive congressional powers under the Elections Clause. This Article contrasts the distinct sources of federal power over elections and compares their effectiveness for the renewed battles over voter eligibility. Unlike the concerns of racial exclusion under Jim Crow, the argument presented is that current voting controversies are likely motivated by partisan zeal and emerge in contested partisan environments. The Article concludes with a proposed administrative process based on the Elections Clause that can potentially be more effective than the provisions of the Voting Rights Act struck down in Shelby County.

Sam would turn from the 14th Amendment to the Election Clause as a source of authority to police “partisan zeal.”

Shifting the constitutional mooring to the Elections Clause thus permits a reexamination of the regulatory framework used to combat improper manipulation of voter eligibility and the exercise of the franchise. Abstracted from the equal protection focus on discrimination, the problem in voting take on the classic dimensions of a conflict of interest. Using the power over elections to further the aims of a subset of the population is an example of a broader problem in which agents responsible for the welfare of distant principals may be tempted to further their own objectives at the expense of the dependent group. Election officials are entrusted with administration of a system fraught with the potential for ends-oriented misbehavior, whether predicated on race, partisanship, personal gain, political favoritism, or outright corruption. The potential for corruption is certainly present anytime an official stands as the gatekeeper for desired goods. But it is combination of all the incentives for manipulation that stands out in the electoral context.

A very interesting proposal. I am not very familiar with the election clause, but this may be another avenue to address purely partisan gerrymandering.

Update: Rick Hasen links to a Bloomberg essay, provocatively titled, “Texas: We Only Hate Democrats, Not Minorities.”

So the state defends itself from the charge that it has targeted minorities and tried to reduce their power by saying outright that it has instead targeted Democrats and tried to reduce their power.

That, of course, is what gerrymandering is all about, albeit usually not so brazenly. Democrats play the old game, too. But the state’s response gets right to the nub of an issue unique to Republicans: Republicans are generally white, while their political opponents are white, black and brown. In a highly diverse state such as Texas, it’s probably impossible for Republicans to target Democrats without targeting minorities. In fact, as they state in the court filing, they target Democrats by targeting minorities.

So, here’s the question the federal courts must decide: When the white party uses its legislative authority to undermine the brown and black party, is that a racial act or merely a political one?

That is exactly the question.

Update: More from MSNBC:

Texas didn’t discriminate against minority voters. It was only because they were Democrats. And even if it did, the racial discrimination Texas engaged in is nowhere near as bad as the stuff that happened in the 1960s. …

“I don’t think it’s going to work, frankly. The mere desire to achieve partisan advantage does not give Texas a free hand to engage in racial discrimination,” says Brenda Wright, a voting law expert with the liberal think tank Demos. “If the only way you can protect white incumbents is by diluting the voting strength of Hispanic citizens, you are engaging in intentional racial discrimination, and the courts will see that.” …

“There’s an irony there that the standard that they’re suggesting now is a standard which would have prevented Texas from being covered in the first place,” notes Rick Hasen, a professor at the University of California-Irvine School of Law and author of the Election Law Blog.

Update: Here is more from the Texas Redistrict Blog.

When people like General Abbott say that they would be fine with non-Anglo people if they would just vote Republican, they are, in essence, dictating the terms for African-American and Hispanic voters to have a seat at the table.

Think about it this way: It’s not very much different than if the staunch segregationists of the 1960s had said to African-Americans, we will let you vote but you must vote for candidates who will support the continuation of segregation – and who won’t stir up things too much by asking for better working conditions or increased wages. But the minute you deviate from what the Anglo majority thinks is the right path, we will use gerrymandering and other tools to make sure your power is curtailed.

That, of course, would have been a ridiculous and unacceptable proposition in 1963. But so is General Abbott’s in 2013.

And from Rick Hasen:

Today North Carolina’s governor signed one of the most restrictive voting laws in the Nation. I have been trying to think of another state law passed since the 1965 Voting Rights Act to rival this law but I cannot. It is a combination of cutbacks in early voting, restrictions on voter registration, imposition of new requirements on voters such as photo identification in voting, limitations on poll worker activity to help voters, and other actions which as a whole cannot be interpreted as anything other than an effort to make it harder for some people—and likely poor people, people of color, old people and others likely to “skew Democratic”—to vote.

The “skew Democratic” line comes from Judge Evans’s dissent in the 7th Circuit’s opinion Marion County (Indiana Voter ID):

Let’s not beat around the bush: The Indiana voter photo ID law is a not-toothinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic. We should subject this law to strict scrutiny—or at least, in the wake of Burdick v. Takushi, 504 U.S. 428 (1992), something akin to “strict scrutiny light”—and strike it down as an undue burden on the fundamental right to vote.

Judge Posner made an important point that I think we must concede in the majority opinion:

No doubt most people who don’t have photo ID are low on the economic ladder and thus, if they do vote, are more likely to vote for Democratic than Republican candidates. Exit polls in the recent midterm elections show a strong negative correlation between income and voting Democratic, with the percentage voting Democratic rising from 45 percent for voters with an income of at least $200,000 to 67 percent for voters having an income below $15,000 . . .

Thus the new law injures the Democratic Party by compelling the party to devote resources to getting to the polls those of its supporters who would otherwise be discouraged by the new law from bothering to vote

What’s striking in this opinion is that there is no mention of race. The law is aimed at diluting votes of Democrats. If the same laws were passed in a state with a history of racial discrimination (Texas), with or without VRA, the tenor of the discussion would have been very different. Of course, this opinion was brought under the 14th Amendment right to vote, not the Voting Rights Act.

We must contrast this opinion with the Supreme Court’s decision in Marion County. Justice Stevens, for the majority, addressed the fact that this law was entirely supported by Republicans, and entirely opposed by Democrats.

In their briefs, petitioners stress the fact that all of the Republicans in the General Assembly voted in favor of SEA 483 and the Democrats were unanimous in opposing it.

Brief for Petitioners in No. 07-25, pp. 6-9. Fifty-two Republican House members voted for the bill, 45 Democrats voted against, and 3 Democrats were excused from voting. 3 Journal of the House of Representatives of Indiana, Roll Call 259 (Mar. 21, 2005). In the Senate, 33 Republican Senators voted in favor and 17 Democratic Senators voted against. 3 Journal of the Senate of Indiana, Roll Call 417 (Apr. 12, 2005).

The majority party (Republicans) all voted to make it harder for the minority party (Democrats) to vote. I think everyone would concede this point.  This is deplorable. The more I think about it, the more I tend towards some form of automatic voter registration at the age of 18. Of all the things we are automatically opted into, the franchise should be one of them.

Stevens, applying what looks like rational basis review (not so called), says that even if partisan concerns were among the considerations applied, so long as there was some other “valid neutral justification,” the law survives.

 It is fair to infer that partisan considerations may have played a significant role in the decision to enact SEA 483. If such considerations had provided the only justification for a photo identification requirement, we may also assume that SEA 483 would suffer the same fate as the poll tax at issue in Harper.

But if a nondiscriminatory law is supported by valid neutral justifications, those justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators. The state interests identified as justifications for SEA 483 are both neutral and sufficiently strong to require us to reject petitioners’ facial attack on the statute. The application of the statute to the vast majority of Indiana voters is amply justified by the valid interest in protecting “the integrity and reliability of the electoral process.” Anderson, 460 U.S., at 788, n. 9, 103 S.Ct. 1564.

Update: Rick Hasen talks about North Carolina’s recent efforts to make voting tougher, and how that may effect the 2012 presidential election–especially if Clinton is the candidate.

If anything, notes voting-law expert Rick Hasen, the fact that Hillary Clinton may fare better than Obama with white voters in a state like North Carolina only increases the incentive for Republicans there to push for restrictions like those contained in the new law (which not only contains a strict photo-ID requirement but also cuts back early-voting days—used disproportionately by black voters—and eliminates pre-registration for 16 and 17 year olds, among other changes.) “If [Hillary’s greater appeal with whites] makes it more likely that she can get elected, then it’s all the more likely to lead Republicans to make it harder for voters who skew Democratic to be able to easily cast a vote,” Hasen told me. Add to that the fact that the numbers, on current trends, are only going to keep turning against the GOP, raising the incentive for the party to do everything it can to tamp down turnout. “Yes, there has been a visceral reaction against Obama,” Hasen said. “But there’s no reason why they would give up on this issue if there is a real or perceived sense that the demographics were working against them.”

So yes, Hillary Clinton is already speaking out against voter suppression because, as my colleague Nate Cohn notes, it is a smart political card to play with Democratic primary voters. But she’s also doing so because voter suppression is going to remain ahighly relevant fact on the ground if and when she runs, when the dread Obama is a mere potted plant at the rear of the stage.

Update: TexasRedistrictBlog rounds up more reactions to Texas’s brief:

Adam Serwer at MSNBC looks at Texas’ claim that redistricting was about politics and not race.

The AP’s Chris Tomlinson raises the dreaded possibility that the 2014 Texas primary gets delayed.

The Economist calls Texas Attorney General Greg Abbott’s section 3 brief “a doozy” (and not in the affectionate way).

The editorial board of the San Antonio Express-News says Greg Abbott is “ethically corrupt and unashamed” for his stance on redistricting.

Business Insider calls the state’s position on section 3 a “pretty amusing response.”