Richard Hasen is the nation’s leading scholar on elections law as political weapons and constitutional fights. A University of California-Irvine political scientist and law professor, Hasen was in Raleigh last week speaking at N.C. State University. His topic: “Race, Party and Politics: North Carolina’s New Front in the Voting Wars.” Naturally, I thought of our Attorney General Roy Cooper, who wants to be governor. Cooper has a constitutional problem. I’ll get to it shortly. But first, as Hasen did, consider the case of a political party that—under the guise of “reform”—passes election laws designed to cripple the rival party by disenfranchising African-American voters. North Carolina, 2013? Not yet: Hasen started with North Carolina in 1898, when the all-white Democratic Party ousted the fusionist Republicans (blacks and some whites) who’d governed after the Civil War. “Reforms” then prevented most blacks from voting, and the Republican Party ceased to be a force. In 2013, the parties have flipped, but the situation is familiar. The Republican Party, virtually all-white, is in charge. This year’s Republican “reforms”—the infamous House Bill 589, which critics term a voter-suppression law and which, Hasen said, is the most restrictive set of voting requirements passed by any state since the civil rights era—will hurt the Democrats, now the party supported by almost every African-American voter. So, Hasen asked: Was 1898 about race? Or party? And is 2013 about party? Or race?
Unless you’re a constitutional lawyer, he said, the answer in each case is both. Because in America you can’t disentangle race and politics.
But in the realm of constitutional law, he noted unhappily, the U.S. Supreme Court insists that it can disentangle the two. And while intentional racial discrimination is unconstitutional, political discrimination is permissible even if it has the incidental (wink, wink) effect of hurting African-Americans.
Last month, the U.S. Department of Justice filed suit in federal court against the state of North Carolina and Republican Gov. Pat McCrory, charging that HB 589 is intended to discriminate against African-American voters and therefore violates the federal Voting Rights Act of 1965 and the 14th Amendment.
The state’s position: No racial discrimination was intended.