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Race or Party? How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere

TL;DR: In this paper, the authors argue that when a state 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, and 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 the voters and that its means are closely connected to achieving those ends.
Abstract: 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.
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Valelly1, M Richard
25 Aug 2016
TL;DR: In this article, the authors proposed a method to solve the problem of "uniformity" in the literature.and.and, and, respectively, the authors' work.
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34 citations


Cites background from "Race or Party? How Courts Should Th..."

  • ...Most voter ID legislation does not overtly target by race (Hasen 2014)....

    [...]

Posted Content
TL;DR: In this paper, the authors present a theory of preference-induced responsiveness bias where constituency responsiveness by legislators is associated with legislator policy preferences and the implication is that discriminatory intent underlies legislative support for voter identification laws.
Abstract: Is bias in responsiveness to constituents conditional on the policy preferences of elected officials? The scholarly conventional wisdom is that constituency groups who do not receive policy representation still obtain some level of responsiveness by legislators outside of the policy realm. In contrast, we present a theory of preference-induced responsiveness bias where constituency responsiveness by legislators is associated with legislator policy preferences. Elected officials who favor laws harming minority groups are also less likely to engage in non-policy responsiveness to minority groups. To test this proposition, we conducted a field experiment in 28 U.S. legislative chambers. Legislators were randomly assigned to receive messages from Latino, Anglo, English-speaking, and Spanish-speaking constituents asking if a driver’s license is required for voting. If legislators supported voter identification, Latino constituents were less likely than Anglo constituents to receive communications from legislators. The implication is that discriminatory intent underlies legislative support for voter identification laws.

20 citations


Cites background from "Race or Party? How Courts Should Th..."

  • ...…often impossible to separate the partisan or electoral motivation from a personal motivation to discriminate against a minority group as “racial politics [has] affected the composition of the political parties, and parties [have] engaged in racial politics in part for partisan ends” (Hasen 2014)....

    [...]

Journal Article
TL;DR: The authors show that black voters in North Carolina disproportionately cast their ballots disproportionately in the first week of early voting, which was eliminated by VIVA, and preregistered sixteen and seventeen year old voters are disproportionately black.
Abstract: Shortly after the Supreme Court in Shelby County v. Holder struck down section 4(b) of the Voting Rights Act (VRA), the State of North Carolina enacted an omnibus piece of election-reform legislation known as the Voter Information Verification Act (VIVA). Prior to Shelby, portions of North Carolina were covered jurisdictions per the VRA’s sections 4 and 5—meaning that they had to seek federal preclearance for changes to their election procedures—and this motivates our assessment of whether VIVA’s many alterations to North Carolina’s election procedures are race-neutral. We show that in presidential elections in North Carolina black early voters have cast their ballots disproportionately in the first week of early voting, which was eliminated by VIVA; that blacks disproportionately have registered to vote during early voting and in the immediate run-up to Election Day, something VIVA now prohibits; that registered voters in the state who lack two VIVA-acceptable forms of voter identification, driver’s licenses and non-operator identification cards, are disproportionately black; that VIVA’s identification dispensation for voters at least seventy years old disproportionately benefits white registered voters; and, that preregistered sixteen and seventeen year old voters in North Carolina, a category of registrants that VIVA prohibits, are disproportionately black. These results illustrate how VIVA will have a disparate effect on black voters in North Carolina.

14 citations

Journal ArticleDOI
TL;DR: In this paper, the authors study patterns of precinct congestion in Florida during the 2012 General Election and show that there was a tremendous variance in closing times in Florida on Election Day in 2012 and that precincts with greater proportions of Hispanic voters closed disproportionately late.
Abstract: The Supreme Court's decision in Shelby County v. Holder to strike down Section 4 of the Voting Rights Act has spurred a search for measures of election performance that extend beyond race-based registration and turnout rates. We contribute to this endeavor by studying patterns of precinct congestion in Florida during the 2012 General Election. With precinct closing times as proxies for congestion, our study covers 5,302 total Election Day precincts in Florida. We show that there was tremendous variance in closing times in Florida on Election Day in 2012 and that precincts with greater proportions of Hispanic voters closed disproportionately late. This finding holds even controlling for the number of pollworkers per precinct. Broadly speaking, voting place congestion in the 2012 General Election appears not to have affected all Floridians equally, and most notably the post-Shelby electoral environment in the United States continues to reflect racial disparities. With the loss of the Voting Rights ...

13 citations

Posted Content
Abstract: Chief Justice Roberts’ majority opinion in Shelby County v Holder, holding unconstitutional a key part of the 1965 Voting Rights Act, purports to be a modest decision written with reluctance and humility. The Court struck the coverage formula in Section 4 of the VRA used to determine which states and local governments must submit any proposed voting changes for federal approval (or “preclearance”) under Section 5. According to the majority, by failing to amend the VRA to update the coverage formula after the Court raised constitutional doubts about preclearance in the 2009 NAMUDNO case, Congress “leaves us today with no choice.” “Striking an Act of Congress ‘is the gravest and most delicate duty that this Court is called on to perform.’” The majority held that the coverage formula renewed by Congress without change in 2006 failed to take into account “current conditions” of discrimination in covered jurisdictions and failed to treat states with the “equal sovereignty” they deserved under the Tenth Amendment. Rather than strike down section 5, as Justice Thomas would have done, the Court “issue[d] no holding on § 5 itself, only on the coverage formula. Congress may draft another formula based on current conditions.” The short opinion for the five most conservative Justices on the Court - only two-thirds the size of Justice Ginsburg’s dissent for the four most liberal Justices - casts itself as adhering to precedent, reaching a result compelled by stare decisis and inevitably flowing from NAMUDNO. The majority ostensibly stands ready for Congress’s next step. Despite the projected judicial modesty, the Shelby County Court was doing much more than calling balls and strikes and applying settled precedent to uncontested facts. Shelby County is an audacious opinion which ignores history, declines to engage the dissent’s powerful argument that the VRA’s bailout provisions solve any constitutional problem, and rejects the Roberts Court’s stated commitment to judicial minimalism in its treatment of facial challenges and severability. It pretends it is not overturning section 5 yet it sets a standard under which any new coverage formula will likely fail a constitutional test. The opinion disregards the pervasive polarization in the current Congress which dooms agreement on a new coverage formula and it seems to reject any replacement coverage formula. But the opinion is minimalist in a difference important sense as well: its brevity seeks to mask major doctrinal and jurisprudential change. By writing a very short opinion and avoiding a discussion of the Fifteenth Amendment’s history and how the Court silently resolved a dispute over the applicable standard of review, the Court tried to hide the major jurisprudential hurdles it jumped to reach a political decision. The opinion, relying on a new and unjustified “equal sovereignty” principle, demeans the strength of Congress’s power to eradicate racial discrimination in voting, sidestepping a key standard of review question raised but not resolved in NAMUDNO regarding how much deference the Court owes Congress acting under its Fifteenth Amendment enforcement powers. The opinion’s brevity is an insult, not an act of modesty. As Justice Ginsburg remarked in dissent, “Hubris is a fit word for today’s demolition of the VRA.” Yet the dissenters offer their own incomplete history of the VRA’s renewal, failing to grapple with the more complex record of the congressional reenactment. To hear the dissenters' story, Congress in 2006 was nearly universally behind the 25-year renewal of section 5 using the old coverage formula, and Congress would have had no idea that the continuing use of the same coverage formula could have doomed its constitutionality. In fact, it was a less happy story. Congress willfully ignored the problems with the coverage formula which legal scholars brought to Congress’s attention, and which were amply covered by a Senate report written by Republican committee staffers who were deeply skeptical of the Act’s continuing constitutionality. While the Shelby County majority minimized the audaciousness of its own holding, the dissenters minimized the difficult constitutional questions before Congress and before the Court. Part I briefly describes the background of the Shelby County case, and in particular the questions left open in NAMUDNO. Part II analyzes the majority opinion, and explains the opinion as an act of false minimalism. Part III analyzes the dissenting opinion, and explains the dissent as one willfully silent about difficult constitutional questions. In the end, the dissenters had the better argument about the Act’s constitutionality, but the dissent would have been stronger had it described and grappled more forthrightly with the struggles over the VRA’s renewal and the dangers of political avoidance. Shelby County is important not just for the loss of preclearance, but the diminution of congressional power over voting rights in the future.

13 citations