“The Supreme Court’s Pro-Partisanship Turn”

The Georgetown Law Journal Online has published the final version of my article, The Supreme Court’s Pro-Partisanship Turn. Here is the abstract:

The United States Supreme Court’s conservative majority has taken the Court’s election jurisprudence on a pro-partisanship turn, which gives political actors freer range to pass laws and enact policies that can help entrench politicians (particularly Republicans) in power and insulate them from political competition. The trend on the Supreme Court is unmistakable whether it reflects the Court majority’s cynical view that American politics is “sordid, partisan, and unfair” or more crassly a self-interested reality of Republican-appointed Justices doing the bidding of the Republican Party.

This Article focuses not on the majority’s motivations but instead upon three subtle doctrinal tools the Court has developed to further the pro-partisanship turn and allow Republican party entrenchment. These doctrinal tools take the Court much further than it went in Rucho v. Common Cause, the Supreme Court decision holding that federal courts cannot consider constitutional claims against partisan gerrymandering. Indeed, this doctrinal subtlety has allowed much of this pro-partisanship turn to remain unnoticed in the broader legal community. The results nonetheless may block nonpartisan election reform and depress minority voting rights, especially in the “race or party” racial gerrymandering cases in which courts hold predominant racial motivations in redistricting are impermissible but predominant partisan motivations are permissible. Analysis of these subtle doctrinal moves not only lays bare a profound shift in the Court’s election law cases that likely will hurt minority voting rights, but also illustrates the power of Supreme Court Justices to move doctrine subtly while avoiding controversy that would accompany more forthright judicial declarations.

First, Chief Justice John Roberts, sometimes in majority opinions for the Court, has exhibited what appears to be a false naivete about what social scientists and, by extension, courts can know about voters’ political behavior. From calling political science tests of partisan gerrymandering “sociological gobbledygook” to misrepresenting the plaintiffs’ arguments in the 2019 Rucho partisan gerrymandering case as a call for proportional representation to proclaiming in the 2013 Shelby County v. Holder case killing off a key part of the Voting Rights Act that “[t]hings have changed in the South,” Roberts has consistently ignored or belittled social science evidence about voting behavior in ways that give political actors freer rein to enact laws and policies in their self-interest.

Second, the Court’s new burden-shifting “presumption of good faith” has put a large thumb on the scale in favor of legislative self-interest and against findings of minority vote dilution. Coupling the Supreme Court’s 2018 voting rights decision in Abbott v. Perez with Rucho, lower courts must assume good faith even when self-interested legislators and other political actors enact laws or policies which preserve their own power. The Court has expanded the realm of good faith to include some self-interested actions, such as what the Court in Rucho called “constitutional political gerrymandering.”

Third, the Court has allowed government actors to reenact laws or policies only slightly different from laws or policies that lower courts have found to be discriminatory by coming up with new, nondiscriminatory reasons to support them. As in Abbott, the courts allow such “animus laundering” to remove the apparent discriminatory taint of the original action while letting the government enact substantially the same policies without penalty. A recent Fifth Circuit case on Texas’s voter identification law provides a classic example of animus laundering. Further, the Supreme Court’s recent Department of Commerce case concerning inclusion of a citizenship question on the 2020 census shows the length to which many of the Justices are willing to go to ignore evidence of discriminatory intent and pretext and provide a cleansing of discriminatory taint.

These three Supreme Court tools—willful ignorance of political reality, the presumption of legislative good faith, and animus laundering—give self-interested government actors the ability to make partisan gerrymandering, racial gerrymandering, restrictive election laws, and minority vote dilution easier. Further, as explained in Part V, the combination of the presumption of good faith and animus laundering provides a path for the Court to get out of the difficult “race or party” box in the racial gerrymandering cases by having courts recast racial agendas as partisan agendas and then treating the partisan agendas as constitutionally permissible.

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