New York Times November 15, 2013 Voter Suppression’s New Pretext By RICHARD L. HASEN IRVINE, Calif. — IT’S the latest fad among state officials looking to make voting harder: We’re not racist, we’re just partisan. Some background: In June, the Supreme Court struck down a core provision of the Voting Rights Act of 1965, under which nine states and portions of others had to get federal approval before changing their election laws. One of those states, Texas, is again in court, facing a Justice Department suit seeking to get the state under federal oversight again. To do so, the Justice Department must prove intentional racial discrimination. 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.” Leaving aside that whopper — laws that dilute black and Hispanic voting power have more than an “incidental” impact — the statement, part of a court filing in August, was pretty brazen. Minority voters, in Texas and elsewhere, tend to support Democrats. So Republican officials, especially but not only in the South, want to reduce early voting; impose voter-identification requirements; restrict voter registration; and, critically, draw districts either to crowd as many minority voters into as few districts as possible, or dilute concentrations of minority voters by dispersing them into as many white-controlled districts as possible. The Supreme Court decision unleashed all manner of new efforts to suppress minority voting — and a new batch of legal challenges. Just this week, a federal judge in Milwaukee considered whether Wisconsin’s tough new voter-ID law violates the 1965 law by placing illegal burdens on minority voters. As in the Texas suit, the Justice Department has sued North Carolina, which in August passed the toughest set of voting rules since the passage of the Voting Rights Act, arguing that the law was passed with racist intent. If successful, Texas and North Carolina could be put back under federal supervision. 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. But this is specious. First, it is artificial to separate race and party under current political conditions. When Don Yelton, a Republican official in North Carolina, recently told “The Daily Show” that if the state’s strict new voter-ID law “hurts a bunch of lazy blacks,” then “so be it,” it was easy to see old-fashioned Southern racism. But just as significant was Mr. Yelton’s saying that the new law “is going to kick the Democrats in the butt.” Second, courts should alleviate unnecessary burdens on voters whatever the state’s asserted motive. The Supreme Court has said that, in redistricting, it cannot distinguish between permissible partisan considerations (for example, grouping “communities of interest”) and unconstitutional gerrymandering. But outside redistricting, partisanship has no place. Our elections should be conducted such that all eligible voters (and only eligible voters) can easily register, and cast a vote that will be accurately counted. Few states will be as bold as Texas and admit naked partisanship. Most will engage in polite obfuscation. Federal judges should see through these cynical pretexts. They should hold that when a state passes a law that burdens voters, it must demonstrate, with credible evidence, that the burdens are justified by a good reason and that the laws are tailored to their intended purpose. When North Carolina says it needs a strict voter-ID law to prevent fraud, courts should be skeptical, both because such laws haven’t been found to stop much impersonation fraud (there isn’t a lot) and because the same law eased absentee voting, which increases the risk of fraud. Shifting the debate away from the “race versus party” question toward protecting voters has many virtues. The Supreme Court isn’t interested in expanding race-based remedies these days, and the Justice Department’s suits against North Carolina, Texas and Wisconsin face an uphill battle. Yet the justices might well find a voter protection principle appealing. In 2012, lower courts started to push back against Republican overreach in voting laws. Richard A. Posner, a federal appellate judge in Chicago, recently expressed doubts about having upheld Indiana’s voter-ID law, which he now sees as a means of voter suppression. The pivotal swing vote on the Supreme Court, Justice Anthony M. Kennedy, also seems troubled by partisan considerations in state election law. 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. If Republican legislatures were full of Don Yeltons who mouth off to “The Daily Show,” proving a racial motivation would be easy. But they are not, and we need a new tool beyond race or party to protect everyone’s voting rights. Richard L. Hasen is a professor of law and political science at the University of California, Irvine.
Posted on: Sat, 16 Nov 2013 23:11:02 +0000
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