What to think or do about partisanship in the design of election rules continues to befuddle judges, scholars and commentators.  Ruth Bader Ginsburg, in an interview published in The New Republic, reflects on Holder v. Shelby County and offers the conclusion that “legislators know much more about elections than the Court does.” But then, considering the “voting wars” that now populate the court system, commentators worry that at bottom the problem is precisely that: that legislators do know a lot of about elections and are anxious to have their elections and those of their allies turn out the right way.

For example, Professor Tokaji has written about the context in which politicians change voting rules, and he asks that partisan motivation be openly acknowledged. In the case of recent Ohio election law changes, he doubts that there can be any question about it: “a legislature dominated by one party has adopted new rules impeding means of voting used mostly by voters likely to favor the other party.”  This concern with “partisan manipulation,” he believes, lies behind the Sixth Circuit’s decision to block legislative changes, such as limitations on early voting.

But Professor Tokaji, like others, does not favor taking too far any inquiry into partisan purpose.  “Do we really want to make federal judges accuse state legislators of being partisan hacks before invalidating unwarranted restrictions on voting?”  Instead, he believes that existing legal standards properly sidestep the issue of purpose and focus on the discriminatory effect of restrictions on voting populations selected for this treatment because (in major part) of their partisan preferences. Judges just have to do their job.

So there is distance between this view and one like Justices Ginsburg’s: between the position that partisanship is a major problem but can’t dominate the legal analysis, and the view that elected officials should be viewed as experts and respected for their superior understanding of how elections work. In fact, Justice Ginsburg makes no mention at all of partisanship, only of the “political branches,” and those are the branches to which the Court, as she sees it, should defer.

But the distance between the two views is not as great as it may seem at first glance.  In the one view, partisanship might receive attention, but largely in the background, not as a decisive factor in judging voting restrictions. In the other, perhaps because it conflicts with the recognition of expertise, it is dropped from the discussion and replaced by an insistence on the special capacity of legislators in regulating elections.

In the meantime, we have what Rick Hasen has called “the voting wars.”  No one doubts that these wars are highly partisan, even as they raise serious issues under the Equal Protection Clause and the Voting Rights Act. Evidence and effects of this partisanship come before the courts; the political nature of the struggle defines press coverage.  The public understands the conflict in these terms.  In the courtroom and in legal commentary outside of it, partisanship hovers over the argument, occasionally entering explicitly into it. But in the end, courts and commentators are unsure what more is to be done with partisan motivation—how much the behavior of “experts” or “hacks,” or a view of political purpose that is somewhere in between, should weigh in the controlling analysis of when legislative restrictions violate constitutional limits.

Category: Voting Rights

Leave a Reply