I have posted this draft on SSRN, for the forthcoming symposium on Redistricting after 2020 at William and Mary.  I think this piece brings together a lot of my thinking (and others’ thinking) on the “race or party” question in election law these days. It discusses a number of pending (and perhaps soon to be pending) Supreme Court cases on racial gerymandering, partisan gerrymandering, and vote denial.

Here is the abstract:

The last few decades have witnessed the emergence of what Bruce Cain and Emily Zhang term “conjoined polarization,” the overlapping of partisan and racial political identity, especially in the American South. Election law doctrine, which developed at a time when partisanship and racial identity did not overlap so neatly, has not caught up. The Essay looks at three potential approaches to conjoined polarization in redistricting and voting rights cases, and the problems with each approach.

“Race or party” is the first approach to conjoined polarization. In this approach, a court’s task is to decide whether a case is “really” about race rather than party, with certain legal consequences flowing from the determination. Some of the racial gerrymandering cases fit into this category. Under Easley v. Cromartie, the courts’ task has been to decide whether race or party predominated in drawing district lines. If race predominated, the lines are likely impermissible, but party preferences are allowed. Beneath the surface, this racial gerrymandering doctrine has allowed for partisan and political fights over redistricting in the guise of discussing racial separation. The idea has now also emerged in some Voting Rights Act section 2 cases; in this view, courts must determine whether minority voters face less opportunity to participate in the political process because of their race or ethnicity rather than facing reduced opportunity for partisan reasons. In jurisdictions where conjoined polarization is prevalent, a race or party analysis is nonsensical and can lead to arbitrary results. It also may undermine enforcement of the Voting Rights Act.

An alternative approach is to treat party as a proxy for race, equating proof of discriminatory partisan intent with proof of discriminatory racial intent. The United States Court of Appeals for the Fourth Circuit used this approach in a recent case involving the constitutionality of a major North Carolina voting law which imposed a strict voter identification requirement and made cutbacks to other voting rules. The Fourth Circuit, in striking the state’s law as a violation of Section 2 of the Voting Rights Act, held that the state acted with a racially discriminatory intent. The court reached this conclusion despite finding little evidence of racial animus. The court wrote that legislators relied upon racial data to achieve partisan ends in designing this law, and that this reliance made party discrimination a form of race discrimination. This approach of “party as race,” while more realistic about conjoined polarization than race or party, raises a host of new questions, such as whether Republican legislatures in areas of conjoined polarization could ever roll back earlier easing of voting laws enacted by Democratic legislatures and administrators without risking a court holding that the legislature engaged in intentional race discrimination. It also means that a law that is illegal in North Carolina may be legal in Wisconsin, even if motivated by the same partisan intent, because of a difference in racial makeup of the two states.

A third approach to conjoined polarization, suggested a bit in the Fourth Circuit case, but advanced more fully by some scholars including Sam Issacharoff and me, seeks to deemphasize the racial aspect of these laws. Under the “party all the time” approach, courts shift toward policing partisan election laws more directly. It is not that race does not matter on the ground in states and areas with conjoined polarization, but that a legal focus on the racial aspects of the dispute obscures rather than elucidates the stakes and the appropriate remedies. A move toward this approach would have courts focus on partisan gerrymandering and dilution in the redistricting context, and on partisan intent and effect as to voting restrictions. “Party all the time” has two main drawbacks. First, it can obscure situations in which race is more salient than party and needs direct redress from the courts. Second, the approach injects courts further into the political thicket, potentially leading to more partisanship in judicial decisionmaking and lack of a principled stopping point for judicial policing. Still, this third approach seems the best alternative, and better than leaving the political thicket.