I have written this oped for the NY Times. It begins: “IT’S the latest fad among state officials looking to make voting harder: We’re not racist, we’re just partisan.”
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.
I have a fuller discussion of these issues in my forthcoming Harvard Law Review Forum piece, Race or Party? How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere.
The Times piece includes a great graphic.