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 Richard L. Hasen

excerpted from: Richard L. Hasen, Race or Party?: How Courts Should Think about Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere, 127 Harvard Law Review Forum 58 - 75 (January, 2014) (77 Footnotes) (Full Article)


I begin with a story which may sound familiar. Following election reforms in North Carolina, African American voter turnout surges, setting records. The North Carolina legislature then changes hands, and the new party in power, which has few, if any, African American supporters, passes new voting restrictions that make it very difficult for African Americans to vote. Turnout plummets in the state, cratering among African American voters.

The story is true. The year was not 2008 -- when African American voters helped North Carolina's electoral votes go to Democrat Barack Obama before a new Republican legislature (in 2013) passed a tough set of voting rules -- but 1900, and the party doing the disenfranchising was not the Republican Party but the Democratic Party. Professor J. Morgan Kousser in his path-breaking 1974 book, The Shaping of Southern Politics, tells the compelling story of African American disenfranchisement at the beginning of the last century.

Richard L HasenNorth Carolina had "perhaps the most democratic" political system in the late-nineteenth century South, with very high turnout among adult males, with black men voting in large numbers, and without the extensive ballot-box stuffing and election fraud that had been occurring in most other Southern states. Back then, of course, African American voters supported the Republican Party, the party of Lincoln. Republicans had strong black support in the state, but their white support was largely limited to hill and mountain areas, as racist white voters in much of the state would not vote for a party supported by blacks. Populists put up their own candidates and gained some support. Republicans and Populists put up a joint, or fused, set of candidates by the mid-1890s, and they captured the North Carolina legislature from Democrats in 1894.

Then, as now, North Carolina was a closely divided partisan state, and state laws changed as the parties changed power. Along with adopting a more progressive legislative agenda, the fused Republican-Populists passed major election reforms, reversing earlier Democratic laws that suppressed African American turnout. Kousser says that North Carolina had "probably the fairest and most democratic election law in the post-Reconstruction South." The new laws required appointment of neutral election judges, smaller precincts, limitations on registrars' ability to disqualify voters, tougher standards to challenge voters, and colored ballots with symbols to help illiterate voters cast effective ballots.

The reforms worked: turnout hit a whopping 85.4% of eligible voters in 1896, black turnout was the highest in any southern election since 1876, Republicans got their first North Carolina governor since Reconstruction, and the fused Republican-Populist parties increased their majorities. African American George H. White was elected to Congress from North Carolina. But Congressman White would be the last African American member of Congress from the South until 1972 and the last from North Carolina until 1992 (with the election of Mel Watt and Eva Clayton).

There was a backlash against African American success. Democrats resorted to violence and fraud in 1898, and the Republican-Populist coalition became strained, including in disputes over racial policies. Democrats took over the state legislature, and their first order of business was to reverse the election reforms in order to ease the passage of a state constitutional amendment to disenfranchise African American voters. The Raleigh News and Observer editorialized in favor of reversing the election reforms, stating that the legislature should "make it impossible for any element of white voters to appeal to the Negro voters upon any public question." The purpose of the reforms was to disenfranchise blacks and lower-class whites. Democrats' new election law changed Election Day from November to August. It required all voters to register anew and gave registrars discretion to exclude voters. ""Finally," Kousser explains, "the law provided that any ballot placed in the wrong box -- there were six -- whether by election officers or the voter himself, would be void."

With the new election law in place, the fight, which got ugly, turned to the plebiscite over the disenfranchising state constitutional amendment. Former Member of Congress Alfred Moore Waddell told a crowd the day before the election: "You are Anglo-Saxons. You are armed and prepared, and you will do your duty .... Go to the polls tomorrow, and if you find the negro out voting, tell him to leave the polls, and if he refuses, kill him."

Thanks to fraud, intimidation, violence, and racial animus, the amendment passed. Afterward, overall voter turnout in North Carolina plummeted and African American turnout dried up completely. Eventually, the state Republican Party gave up on African Americans -- now disenfranchised and unable to support the Party -- seeing them as what Kousser terms "a lost and damaging cause."

The fight in 1900 was about race -- and it was about partisan politics. You could not separate the two: racial politics affected the composition of the political parties, and parties engaged in racial politics in part for partisan ends. The story Kousser tells is a story of race and party: the only way to understand it fully is to see the complexity and interaction between these forces.

Fast forward to 2013 and the new fight in North Carolina over House Bill 589, which has gotten national attention. The law was passed by a new Republican legislature over staunch Democratic objections following a Democratic presidential victory in 2008 and a closely contested 2012 presidential race. It includes a strict voter identification provision. The law also cuts a week off early voting in the state (used by up to seventy percent of African American voters in 2012) and bars local election boards from keeping the polls open on the final Saturday before the election after 1:00 PM. It keeps the same number of hours on a fewer number of days. It eliminates same-day voter registration. It opens up the precincts to "challengers," who can gum up the works at polling places and dissuade voters from showing up in the first place. It bans paying voter registration-card circulators by the piece. It eliminates preregistration of sixteen- and seventeen-year-olds in high schools. It provides that a voter who votes in the wrong precinct (perhaps because of a poll worker's error) will have her whole ballot thrown out (earlier law had allowed such ballots to count for those races in which the voter was eligible to vote).

Like the fights in 1900, today's fight over North Carolina's controversial new voting law is about race and party politics. In this way, it is nothing new. But thanks to how the U.S. Supreme Court has conceived of the meaning of the U.S. Constitution and how Congress has defined racial politics in the Voting Rights Act of 1965, we may be forced to choose: race or party?

The realignment of the parties in the South following the Civil Rights movement of the 1960s has created a reality in which today most African American voters are Democrats and most white conservative voters are Republicans. That was not the case back in 1900 or before the Civil Rights movement, when Southern Democrats were conservative and Northern Democrats were more liberal. The Voting Rights Act, when passed, was not seen as a law that helped the Democratic Party -- quite the opposite. But today, many Republicans view the Voting Rights Act as a law that favors Democrats, especially with a Democratic and African American President and Attorney General administering the law.

When party and race coincide, as they did in 1900 and they do today, it is much harder 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 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 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 likely to fall and the fight will be settled primarily in courts.

This contrast was on display in a brief that the State of Texas recently filed in its fight with the U.S. Department of Justice over whether to put Texas back under federal voting supervision. The Justice Department argues that proof of intentional racial discrimination in voting is found in Texas's recent redistricting plan, which disfavors minority voters and officeholders. Texas's defense is that its law is about partisan politics, not about race, and it is therefore acceptable:

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.

Note that Texas's defense is that it was deliberately passing its law ""at the expense of Democrats." Leave aside for a moment the fact that discriminating on the basis of political party should serve as an indictment rather than a defense of Texas's policy. Instead, note the bifurcation of race and party. To Texas, there is just an "incidental" effect on minority voters. If Texas is right that party discrimination is a valid defense under the law, but that racial discrimination violates the Voting Rights Act, then courts need to make a distinction: race or party?

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 of 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). This rule would both discourage party power grabs and protect voting rights of minority voters. In short, it would inhibit discrimination on the basis of both race and party, and protect all voters from unnecessary burdens on the right to vote.

* * *

Race and party are intertwined, especially in the South, but the legal standard is bifurcated. If a plaintiff can raise a statutory Voting Rights Act or constitutional race-based claim under the Fourteenth or Fifteenth Amendments, the claim may well succeed. But claims of party discrimination go unchecked. In Crawford v. Marion County Election Board, a voter identification case, for example, Judge Posner held that the Democratic Party had standing to contest Indiana's law because the law was going to make it harder to get Democratic voters to the polls -- but that the discrimination did not render the law unconstitutional. It did not matter to the Seventh Circuit majority, or later to the Supreme Court, that this was a law was aimed at Democrats. As Judge Evans declared in dissent, "Let's not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic."

This bifurcation puts courts to an either/or choice: in the redistricting cases, if "partisan" factors predominate in the legislature then those challenging the proposed district lines lose, but if "racial" factors predominate they win. In the case of North Carolina's new voter law, even if opponents can prove a bad "partisan" intent in passage of the law, they likely will still lose if the court accepts North Carolina's posited-but-not-proven state interests, but if opponents can prove "racial" intent, they likely will win.

Worse, the focus on race requires courts to make decisions about what is in legislators' hearts: is there a racist intent? That question puts off some people who would otherwise be sympathetic to the argument that states should not impose laws which make it harder to register and vote for no good reason. A search for racist intent is not the most productive way to think of these issues. Instead, we need to question the assumption that it is permissible outside the redistricting context to discriminate on the basis of party.

It is understandable why the Supreme Court has been reluctant to set out a workable standard for policing partisan gerrymandering claims in cases from Bandemer to Vieth to Easley: it is legitimate to have some consideration of party in drawing district lines, if only to make sure that those drawing district lines group together people with similar views and outlooks. But it is not so difficult to separate permissible from impermissible consideration of party outside the redistricting context. When it comes to the rules for running our elections (as opposed to rules for constructing our legislative districts), there is a neutral standard against which we can judge election laws: election rules should be crafted so that all eligible voters -- but only eligible voters -- can easily register and cast a vote which will be accurately counted.

In reviewing laws which impose burdens on voters, courts should adopt something along the lines of the "strict scrutiny light" standard which Judge Evans advanced in his Seventh Circuit Crawford dissent. When a legislature passes an election-administration law discriminating against a party's voters or otherwise burdening voters, courts should read the Fourteenth Amendment's Equal Protection Clause to require the legislature to produce real and substantial evidence that it has a good reason for burdening voters and that its means are closely connected to achieving those ends. This approach would not require delving into the motives of legislators to determine if they were merely self-interested and had passed laws to hurt the other party, as opposed to being motivated by a desire to prevent fraud, save money, or instill voter confidence. Instead, evidence of such intent should prompt courts to look skeptically upon asserted state interests unsupported by actual evidence.

When it comes to state voter identification laws, for example, the state would have to show that impersonation voter fraud is a real problem, that a photo identification requirement is a reasonably necessary means to solve the problem, and that voters would not be overburdened by the requirement given the nature and extent of the state's interest. A law limiting absentee balloting, for example, would be easier to sustain than a voter identification law, because of the more extensive evidence of vote buying connected with the use of such ballots.

An equal protection standard which requires substantial evidence justifying a burden on voters before a law would be considered constitutional applies beyond voter identification. Think of North Carolina's cutbacks in early voting or the failure to count wrong precinct ballots. The United States Court of Appeals for the Sixth Circuit ruled against Ohio on both of these issues in the 2012 election season. The fact that the Republican legislature passed the cutbacks over strenuous Democratic objections may have raised the judges' concerns.

One panel of the Sixth Circuit held that Ohio could not, absent a good reason, cut back early voting for all voters except for military voters -- who could, but need not, be given extra early voting days by local election boards. While the majority rule concerned discrimination between classes of voters, both the district court and concurring Judge White on the Sixth Circuit focused on the fact that Ohio fixed its long-line problem in 2008 by extending early voting, and these judges feared that eliminating early voting in 2012 would have made things worse for voters. Under Judge White's standard, the Equal Protection Clause would prevent a state from making things worse for voters without good reason once it has made them better.

A different, and quite conservative, Sixth Circuit panel held that Ohio could not disenfranchise voters who cast their votes in the wrong precinct because of pollworker error. For example, the record showed that some Ohio voters were disenfranchised because poll workers could not determine whether the numerical portion of a registrant's address contained an odd or even number. The court held the disenfranchisement caused by poll worker error demonstrated likely success on the merits under the Equal Protection and Due Process Clauses.

The precise contours of judicial protection for voters remains to be worked out. Applying a broader voter-protection standard as in Judge Evans' Crawford dissent or the Sixth Circuit provisional ballot case, or even a nonretrogression standard as in Judge White's concurrence in the early-voting case, could solve some of the problems of the Voting Wars and discrimination against minority voters simultaneously: if a state deviates from sound election administration practices, or imposes rules which increase burdens on voters, the state could not defend doing so on grounds that the law is meant to discriminate against Democratic voters. Nor could the state defend it with conjecture about supposed but unproven harms. Instead, a state should have to justify the law with reasonable, nondiscriminatory reasons supported by substantial evidence. It is time to extend election administration precedent in this voter-protective way that protects everyone from students to the elderly and all in-between.

Some may reject my argument because it does not give race a sufficiently explicit role in policing elections. But it is unrealistic to expect the current Supreme Court to endorse laws policing subtle racial discrimination in voting. The stronger claim before this Supreme Court is to protect the voting process from partisan manipulation.

Despite Crawford, and its acceptance of the state's purported but unproven interest in preventing voter impersonation fraud, there is some reason to think that courts seeing the new Republican legislative overreach on voting laws are becoming amenable to stricter scrutiny for laws burdening voters. Consider Judge Posner's turnabout on voter identification laws. Or consider what Justice Kennedy said in the Vieth partisan gerrymandering case: "If a State passed an enactment that declared "All future apportionment shall be drawn so as most to burden Party X's rights to fair and effective representation, though still in accord with one-person, one-vote principles,' we would surely conclude the Constitution had been violated." Justice Kennedy's principle is close to the reality of Texas's and North Carolina's recent voting laws: they appear to have been enacted to burden the Democratic Party's rights to fair and effective representation. Indeed, preferring one party for no good reason in election administration is akin to awarding patronage jobs based upon partisan affiliation, a practice which the Court has held violates the First Amendment. There is simply no logical relation between party affiliation and the government choice.

Some may reject my argument because it puts a thumb on the scale favoring voters, contending that election "integrity" should be a paramount value over preventing disenfranchisement. I do not reject integrity as a value but argue it should be proven and not simply posited, especially when many of the posited reasons appear pretextual. A rule making absentee balloting harder, for example, given ample evidence of absentee ballot fraud could well be justified under my standard despite the burden on voters who prefer the convenience of absentee voting. But a rule cutting back on early voting days (but keeping the same number of voting hours) would not be sustained absent a good reason grounded in election administration to do so.

My proposed rule would apply nationwide, not just to those states with a history of discrimination in voting. But I suspect that, thanks to Shelby County, there will be more attempts to game the system in formerly covered states, and that courts stepping in to require sound election administration will also be greatly helping the position of minority voters. Consider, for example, the City of Augusta, Georgia, which announced soon after the Shelby County decision that it might move Election Day to the summer, just as Democrats did in North Carolina in 1898. There is no legitimate reason to move an election to a time when many voters are away from home.

Finally, some may argue that the Court is unlikely to find a constitutional violation when a state favors one party in its election administration, given that the Court has allowed states to favor incumbents in redistricting and to protect the two-party system from competition. No case, however, has said that states can stack the rules about the casting and counting of votes -- the most basic election laws -- to promote one major party over that of another. The next step is for courts to recognize that states often make voting rules for partisan reasons under the pretext of following sound election administration practices.

Back in 1900, North Carolina resolved its election administration disputes with violence, intimidation, and ballot-box stuffing. We are mercifully no longer at that stage and I don't expect we will ever be there again. North Carolina's new law is not that. But we need to do more to protect all voters when states take steps which make it harder, for no good reason, for some voters to exercise the precious right to vote.



Chancellor's Professor of Law and Political Science, UC Irvine School of Law.