[EL] NY Times op-ed (“Voter Suppression’s New Pretext”)

[David A. Holtzman]

The New York Times positioned Prof. Hasen’s op-ed 
<http://www.nytimes.com/2013/11/16/opinion/voter-suppressions-new-pretext.html?_r=0> 
right below a powerful graphical and quantitative demonstration 
<http://www.nytimes.com/interactive/2012/06/10/sunday-review/racially-charged-web-searches-and-voting.html?_r=0> 
(originally published with this 
<http://campaignstops.blogs.nytimes.com/2012/06/09/how-racist-are-we-ask-google/>) 
of a Bradley Effect 
<http://www.realclearpolitics.com/articles/2008/02/the_bradley_effect.html>, 
and a powerful piece by Charles M. Blow, titled “Disrespect, Race and 
Obama.” Blow’s piece 
<http://www.nytimes.com/2013/11/16/opinion/blow-disrespect-race-and-obama.html> 
focuses on backlash to black successes, and has an in-column subhead, 
“Racism is getting clever at avoiding detection.”Rick’s op-ed is on 
partisanship as “Voter Suppression’s New Pretext” (masking race), and 
has a Times illustration 
<http://graphics8.nytimes.com/images/2013/11/16/opinion/1116OPEDattardo/1116OPEDattardo-articleInline.jpg> 
(it’s great, as Rick says below) showing the word “PARTY” largely 
masking “RACE”.

Rick essentially asks for heightened judicial scrutiny of laws that 
regulate voting.He writes that federal judges “should hold that when a 
state passes a law that burdens voters, it must demonstrate, with 
credible evidence, that the burdens are justified by a good reason and 
that the laws are tailored to their intended purpose.”At first read, 
it’s an appealing and seemingly difficult ask.Then again, I thought 
something like that was supposed to be the rule already, because voting 
is fundamental, sorta.Maybe there’s a subtlety in there about “when” the 
state must find or marshal the “credible evidence.”

And the ask wouldn’t be a cure-all.Even narrowly-tailored restrictions 
can inflict wide, and possibly intended, collateral damage.Plus, party 
success, or even the success of a particular candidate, can be, to many, 
a “good reason.”

Now race is an equal protection matter, and a bad reason to make it 
harder for people to vote.Party is an equal opportunity (or equal 
opportunism) matter, and since so many people are firmly aligned with a 
party, to them, at least, it’s a good reason for election laws.

Yet nothing is either-or (good-or-bad) these days.Felon 
disenfranchisement burdens racial minorities, probably 
deliberately.Still, there must also be a good reason for it, or it 
wouldn’t be constitutional.Gerrymandering, have-ID-with-you laws, 
inconvenient polling places, and no-excuse vote-by-mail, are about BOTH 
race and party AND MORE because modern political consultants consider 
all the variables they can.Consultants thrive on complexity, and would 
be happy to be your tailors.

To banish some of this complexity, one thing to do would be to make 
voter registration universal, automatic, and irreversible.(Even if 
somebody renounces their citizenship -- you think after that they’re 
still gonna vote?)

The arguments accompanying Rick’s ask have some weaknesses which might 
be addressed by universal voter registration (another appealing, but 
non-cure-all, ask).For instance, even if “it is artificial to separate 
race and party under current political conditions,” it does not 
necessarily follow that “outside redistricting, partisanship has no 
place.”Just because most of a race prefers one party, we need not shed 
party designations on ballots, party caucus rooms, “minority” and 
“majority” designations of parties, other government recognition of (all 
or some) parties, and party politics in general.(There might be other 
reasons to get rid of state support for parties.)And voters need not 
drop the crutch.

(*In* redistricting, by the way, California recently amended its 
constitution to minimize partisanship using a citizens’ commission.The 
U.S. Supreme Court may have said partisanship in redistricting is ok, 
but California’s Prop. 11 could be the model for a U.S. Constitutional 
Amendment to change that.)

The op-ed says, “Our elections should be conducted such that all 
eligible voters (and only eligible voters) can easily register, and cast 
a vote that will be accurately counted”And Rick calls the aforementioned 
ask, “my proposal to protect all voters.”The problem there is, a person 
isn’t an eligible voter unless she or he is registered to vote, and 
isn't really a voter until after casting a vote.So Rick really means 
*potential* voters in asking for his formulation of heightened scrutiny.

Universal registration would largely get rid of that common logical 
flaw.Personally, I’d like to see it happen.In a non-partisan 
non-discriminatory race-free way.

- dah









On 11/15/2013 8:39 PM, Rick Hasen wrote:
>
>
>     “Voter Suppression’s New Pretext”
>     <http://electionlawblog.org/?p=56788>
>
> Posted on November 15, 2013 8:27 pm 
> <http://electionlawblog.org/?p=56788>by Rick Hasen 
> <http://electionlawblog.org/?author=3>
>
> I have writtenthis oped 
> <http://www.nytimes.com/2013/11/16/opinion/voter-suppressions-new-pretext.html> 
> 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.”
>
> Another snippet:
>
>     Shifting the debate away from the “race versus party” question
>     <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2353068>
>     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
>     <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2182857>
>     against Republican overreach in voting laws. Richard A. Posner, a
>     federal appellate judge in Chicago, recently
>     <http://www.thedailybeast.com/articles/2013/10/23/why-judge-posner-is-right-on-voter-id-laws.html>
>     expressed doubts
>     <http://www.newrepublic.com/article/115363/richard-posner-i-did-not-recant-my-opinion-voter-id>
>     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
>     <http://www.law.cornell.edu/supct/html/02-1580.ZC.html> 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 
> Elsewher <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2353068>e.
>
> The Times piece includes a great graphic. 
> <http://graphics8.nytimes.com/images/2013/11/16/opinion/1116OPEDattardo/1116OPEDattardo-articleInline.jpg>
>




-- 
David A. Holtzman, M.P.H., J.D.
david at holtzmanlaw.com

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