Hasen on Race and Party

November 17th, 2013

Rick Hasen has an important new essay, and related opinion piece in the Times, focusing in on a big election law post-Shelby County.

It goes something like this:

IT’S the latest fad among state officials looking to make voting harder: We’re not racist, we’re just partisan. …

Texas’ defense? It’s discrimination, all right — but it’s on the basis of party, not race, and therefore it’s O.K.

Says Texas: “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.” (JB: My take on the Texas motion to dismiss is here) …

Unlike with race-based discrimination, which, if proved, could violate both the Voting Rights Act and the Constitution, the Supreme Court has refused to recognize a standard for policing even nakedly partisan gerrymandering.

But now, supporters of strict voter-ID, registration and other voting laws are trying to use the same defense they have used to defend gerrymandering. They can claim ostensibly good reasons for their laws: preventing fraud or saving money. As a fallback, they can claim, like Texas, they are engaged in permissible partisan discrimination, not impermissible race discrimination.

Rick made a very significant move here. He seems to be conceding (begrudgingly perhaps) that gerrymandering is permissible based on partisan (and thus indirectly racial) grounds. But he seeks to confine those considerations to gerrymandering, and not new means of making it tougher to vote, such as voter-ID. Rick’s approach also has the benefit of avoiding calling legislators racist.

If courts accepted my proposal to protect all voters, the Justice Department would not have to prove some legislators are racists. It would give new life to the goals of the Voting Rights Act and would protect not only minorities, but also other populations — for example, college students, who appear to bear the brunt of voter-ID laws.

I noticed that the DOJ motion, in order to satisfy the Section 2 standard, argued that debates over the voter ID law contained “Anti-Immigrant Rhetoric.” I did not find this argument compelling, and more importantly, thought the government would not meet their burden of proof. Rick’s method would avoid the need to consider racial issues, and draw a bright line excluding partisan rationales for voting laws that go beyond gerrymandering.

Here is the abstract of Rick’s essay, titled “Race or Party? How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere”:

North Carolina, Texas, and other states with Republican legislatures have passed a series of laws making it harder for voters to register and to vote. In response, the United States Department of Justice has sued these states, claiming that the laws violate portions of the Voting Rights Act protecting minority voters. When party and race coincide as they did in 1900 and they do today, it is hard to separate racial and partisan intent and effect. Today, white voters in the South are overwhelmingly Republican and, in some of the Southern states, are less likely to be willing to vote for a Black candidate than are white voters in the rest of the country. The Democratic Party supports a left leaning platform that includes more social assistance to the poor and higher taxes. Some Republicans view such plans as aiding racial minorities.

Given the overlap of considerations of race and considerations of party, when a Republican legislature like North Carolina’s passes a law making it harder for some voters to vote, is that a law about party politics or a law about race? As I explain, if courts call this a law about party politics and view it through the lens of partisan competition, then the law is more likely to stand, and the fight over it will be waged at the ballot box. If the courts call this a law about race and view it through the lens of the struggle over race and voting rights, then the law is more likely to fall and the fight will be settled primarily in the courts.

The race versus party bifurcation is unhelpful, and the solution to these new battles over election rules — what I call “The Voting Wars” — is going to have to come from the federal courts. Courts should apply a more rigorous standard to review arguably discriminatory voting laws. When a legislature passes an election administration law (outside the redistricting context) discriminating against a party’s voters or otherwise burdening voters, that fact should not be a defense. Instead, courts should read the Fourteenth Amendment’s Equal Protection Clause to require the legislature to produce substantial evidence that it has a good reason for burdening voters and that its means are closely connected to achieving those ends. The achievement of partisan ends would not be considered a good reason (as it appears to be in the redistricting context). These rules will both discourage party power grabs and protect voting rights of minority voters. In short, this new rule will inhibit discrimination on the basis of both race and party, and protect all voters from unnecessary burdens on the right to vote.

I see this rationale currying more favor with the Court than one alleging racial animus. As Rick notes, legislators can be polite, and keep nefarious ends ender wraps.