A question lurking over many constitutional issues concerning election laws is how courts should address the “easiest,” core case of a law that can fairly be judged as purely partisan in purpose, without any legitimate public-regarding justification. Unless courts know how to resolve that core case, they will be even more uncertain about how to judge the more common mixed-purpose cases, in which election laws might be judged both to have partisan purposes but also to have potentially legitimate, public purposes as well.
So far, the Supreme Court has held that voter-identification laws present the latter case of mixed-purposes voting regulations: as the Court said in Crawford¸ “it is fair to infer that partisan considerations may have played a significant role in the decision to enact” Indiana’s voter ID law – but that the law was nonetheless constitutional on its face because there were also legitimate, public-regarding purposes for such a law.
So what about cases of “purely” partisan laws? In Crawford¸ the Court did go on to say that a law would be unconstitutional if partisan considerations “provided the only justification” for a voting law. We know that legislatures do engage in self-interested attempts to rig the electoral process to favor their own partisan and incumbent interests. But how often are “purely partisan” laws enacted? More to the point, how easy is it for courts to identify such laws?
Bans on straight-ticketing voting (ST) seem to me one of the better tests of these questions. I have often used this example in class. It has become particularly timely again now because, as part of the package of changes to its election laws the North Carolina legislature recently enacted, one of the less noticed changes was precisely a new ban on ST. Why would a legislature care about taking away from voters the option – which after all, is just an option – to case an ST vote? Because in states where this happens, the Democratic Party tends to do better when the ST option exists.
Since 1997, ST has been banned in seven states: Illinois (1997), Michigan (2001), Missouri (2006), New Hampshire (2007), South Dakota (1996), Wisconsin (2011), and NC (2013). From quick initial research, it appears to me that these bans were all enacted in states then under Republican control. [ UPDATE: After the Republican Party repealed ST, it was then reinstated through a ballot initiative; in NH, the Democrats were the ones who repealed ST, which my draft had noted but then I somehow deleted]. Of course, there are “public regarding” justifications one can offer even for laws that ban ST: such bans encourage “deliberation about the merits of individual candidates.” But this is about as thin a “legitimate” purpose as you are likely ever to see for an election law. If ever courts are willing to consider an election-law justification pretextual, I would think that would the case here.
So if courts conclude “the only justification” for these ST bans is partisan advantage seeking, should they take Crawford at its word and strike them down? But then ST voting is only available right now, see here, in 15 states: Alabama, Indiana, Iowa, Kentucky, Michigan, New Jersey, New Mexico, North Carolina, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, Utah, West Virginia. So would it also be the case that there is an affirmative constitutional right to be able to vote a ST option and that states must then provide that option? And if not, can constitutional doctrine make illegal the elimination of an existing ST option, but permit states that have not had the option at all continue not to have it?
The stakes in these questions – so sharply brought to the surface by bans on ST voting – are high, because they go to the most basic questions of how constitutional law should apply to the democratic process. If even “purely partisan laws” are constitutional, then laws that have any mix of partisan and plausible public purposes will be constitutional. And perhaps all this suggests that it’s simply not going to be feasible for courts to base doctrine on whether the “only” or “primary” purpose for a voting law is partisan advantage. Instead, the more effective doctrinal path might be, in essence, a kind of intensive scrutiny of the effects of voting laws, in which significant burdens on access to the ballot box would be weighed against the benefits to important state purposes — an approach also suggested by the majority opinion in Crawford.
I’ve explored some of these issues in my academic writing but I won’t cite that stuff here.