I have posted this draft on SSRN (127 Harvard Law Review Forum (forthcoming Dec. 2013)). Here is the 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.
The Essay begins:
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 making 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 2012 when African-American voters helped North Carolina’s electoral votes go to Democrat Barack Obama, and then a new Republican legislature passed a tough set of voting rules, but 1900, and the party doing the disenfranchising was not the Republican Party but the Democratic Party. J. Morgan Kousser in his pathbreaking 1974 book, The Shaping of Southern Politics,1 tells the compelling story of African-American disenfranchisement at the beginning of the last century.