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The Nonpartisanship Principle

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The Nonpartisanship Principle THE NONPARTISANSHIP PRINCIPLE By Richard E. Levy* This essay advances a straightforward proposition: partisan political advantage is not a legitimate purpose for election rules, requirements, or practices that burden the right to vote. One would think that this "nonpartisanship principle" is self-evident. After all, the essence of representative government is the selection of government officials through a democratic process comprised of free and fair elections. Free and fair elections must operate under rules that give voters equal opportunities to cast their ballots and elect the candidates of their choice and that give opposing candidates equal opportunities to garner votes and secure election. Rules, requirements, or practices whose purpose and effect is to skew the electoral process to the advantage of one candidate, faction, or party are fundamentally inconsistent with the premise of democratic elections. While the nonpartisanship principle seems self-evident and fundamental, even a casual observer of our elections cannot help but notice that the process is replete with rules, requirements, or practices that have the purpose and effect of obtaining political advantage for the party in power. These days, for example, parties in power use sophisticated computer software to gerrymander legislative districts in their favor, with remarkable effectiveness. Likewise, many states have also recently adopted various policies and practices, such as voter ID laws, voter registration requirements, or reduction of voting opportunities, whose apparent purpose is to suppress voting by classes of voters who are likely to vote for the opposing party. It is hardly surprising that partisan elected officials would seek to gain political advantage through manipulation of electoral rules, regulations, and practices. It is more surprising that the law does not place greater constraints on their ability to do so. In particular, while the nonpartisanship principle is fairly implicit in the United Supreme Court's voting rights jurisprudence, the Court has taken a hands-off approach when it comes to enforcement. Thus, for example, the Court has declined to recognize or enforce any constitutional limits on partisan political gerrymandering (provided that districts comply with the one person, one vote principle or discriminate on the basis of race).' Likewise, the * J. B. Smith Distinguished Professor of Constitutional Law, University of Kansas School of Law. I wish to thank the Journal Editors for the opportunity to contribute this essay and Justine Koehle, Class of 2017, for valuable research assistance. I also thank the other participants in the symposium for a lively and informative discussions of these important issues. 1. The focus in this article is on constitutional doctrine, rather than the Court's interpretation and enforcement of the Voting Rights Act. Because the Act is primarily focused on racial discrimination in respect to voting rights, see 52 U.S.C. § 10301 (2012) (prohibiting the abridgment of the right to vote "on account of race or color"), it does not directly address the problem of political partisanship. Nonetheless, there is some overlap between the two, insofar as racial groups often tend to favor one or the other political party. In particular, the Court's recent decision in Shelby County, Alabama v. Holder, 133 S. Ct. 2612 (2013), which rendered the preclearance 377 378 KAN. J.L. & PUB. POL 'Y [ Vol. XXV:3 Court has largely declined to inquire into the partisan motivations behind voter ID laws and other requirements that tend to suppress particular classes of voters. In this essay, I will argue that it is time to take the nonpartisanship principle more seriously, both as a constitutional and policy matter. I shall begin, in Part I, by discussing the constitutional foundations of the nonpartisanship principle in the Court's First and Fourteenth Amendment jurisprudence. In Part II, I will critically examine the Court's refusal to enforce the nonpartisanship principle in the context of partisan political gerrymandering, and discuss its impact on the electoral process. Part III considers, in turn, photo ID and other requirements that tend to suppress the votes of particular groups on the basis of their partisan alignment. Finally, Part IV concludes that the best way to enforce the nonpartisanship principle is to take control over elections away from partisan elected officials. I. THE CONSTITUTIONAL FOUNDATIONS OF THE NONPARTISANSHIP PRINCIPLE In this part of the essay, I will discuss the constitutional basis of the nonpartisanship principle. As stated above, I believe that the principle is inherent in the concept of democracy because election requirements, rules, or practices that have the purpose and effect of favoring one party by burdening voters who favor opposing parties undermine the integrity of representative elections. In constitutional terms, the nonpartisanship principle is fairly implicit in the Court's voting rights jurisprudence, which has both First Amendment and equal protection components. A. The First Amendment and Political Expression The First Amendment contains a number of provisions designed to protect freedom of expression.2 The Free Exercise and Establishment Clauses, which protect freedom of religious expression, are not at issue here. The freedom of speech and press and the rights of petition and assembly protect freedom of political expression (as well as artistic, scientific, and other forms of expression). Election requirements, rules, or practices that have the purpose and effect of favoring one party over its opponents violate these political freedoms. 1. Freedom of Speech First, partisan electoral rules violate freedom of speech. As developed and explained by the Supreme Court, freedom of speech and press are essential to democracy, because people need to be able to freely discuss the government, the requirement of act unenforceable, made it easier for states to adopt partisan voting rules. See infra notes 112-13 and accompanying text (discussing Shelby County and its aftermath). 2. U.S. CONST. amend. I ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."). 20161 LEVY THE NONPARTISANSHIP PRINCIPLE 379 candidates, and the issues in order to cast an informed ballot. 3 Thus, for example, in the (in)famous Citizens United decision,4 the Court proclaimed that: Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. ... The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. The First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office.5 Accordingly, political speech, especially speech that is integral to the electoral process, is at the core of the First Amendment and receives the highest degree of First Amendment protection. Under the Court's First Amendment doctrine, laws that turn on the viewpoint of political speech or the class of political speaker are especially dangerous to these democratic principles, and can only be sustained if they survive "strict scrutiny." Strict scrutiny requires that the end or purpose of the regulation is a compelling governmental interest and the means chosen to achieve this purpose is "necessary" and/or "narrowly tailored" to meet that purpose. 6 Thus, for example, it is generally understood that freedom of speech and press were, in part, a response to the British law of seditious libel that prohibited criticism of the crown, and that the state could not pass a law banning criticism of the government in power.7 More broadly, the Court's free speech 3. This theme is central to the influential concurring and dissenting opinions of Justices Holmes and Brandeis. See, e.g., Whitney v. California, 274 U.S. 357, 373-80 (1927) (Brandeis, J., concurring). 4. Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010) (invalidating campaign finance regulation prohibiting corporations from using their general treasury funds to make contributions and expenditures on behalf of candidates). Although the holding of Citizen's United may be controversial and contested by some, its premise that political expression is essential to democracy is not. 5. Id. at 339 (internal quotation marks and citations omitted). 6. See, e.g., Brown v. Entertainment Merchants Ass'n, 131 S. Ct. 2729, 2738 (2011) ("Because the Act imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest."); R. A. V. v. City of St. Paul, 505 U.S. 377, 395 (1992) (concluding that hate speech ordinance was not "narrowly tailored to serve compelling state interests"); Simon & Schuster, Inc. v. Members of State Crime Victims Bd., 502 U.S. 105, 118 (1991) (concluding that because the state's Son of Sam law "establishes a financial disincentive to create or publish works with a particular content ... the State must show that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end."). Although strict scrutiny is sometimes described as "fatal in fact," regulations of speech occasionally survive it. See, e.g., Burson v. Freeman, 504 U.S. 191 (1992) (upholding 100 foot buffer zone around polling places in which electioneering was prohibited on election day). 7. Ironically, the Alien and Sedition Acts, which are now recognized as a clear violation of the First Amendment, were enacted not long after the ratification of the Bill of Rights. See New York Times Co. v. Sullivan, 376 U.S. 254,276 (1964) ("Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.").
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