Status Check: Where Voting Rights Cases Stand With The Supreme Court

LULU GARCIA-NAVARRO, HOST:

Legal scholars are buzzing over a recent Supreme Court decision not to hear a case about voting rights in North Carolina. A lower court ruled that the law was unconstitutional last year, saying that it targeted African-Americans with almost surgical precision. And while the Supreme Court's refusal to re-examine that decision may seem like a win for voting rights advocates, the picture is, as always, more complicated.

Richard Hasen is a professor of law and political science at UC Irvine School of Law. He joins us from our studios in Culver City. Thank you so much for being with us.

RICHARD HASEN: It's a pleasure.

GARCIA-NAVARRO: So the court didn't take this case, but that doesn't mean they won't take a voting rights case in the future. Chief Justice John Roberts wrote a statement about the decision that some see as a signal.

HASEN: That's right. This is the second time in the last few months in a voting case where Chief Justice Roberts has gone out of his way to say just because we're not taking this case, don't think that we agree with it. There was just some technical problem with the case. And in fact, the legislative leaders in North Carolina read it as a signal, don't read this as the Supreme Court stopping you.

GARCIA-NAVARRO: OK. Let's step back for a moment. Why has voting rights become such an issue right now?

HASEN: Two Supreme Court decisions have really accelerated the pace of voting changes, especially in Republican states. First, in the mid-2000s, the Supreme Court gave the green light to Indiana's voter identification law. Then in 2013, the Supreme Court held that a part of the Voting Rights Act was unconstitutional.

That part of the act said that states with a history of racial discrimination in voting had to get federal approval or preclearance before they made any changes in their voting rules, and those states had to prove that their changes would not make protected minority voters worse off. And in the wake of that, North Carolina, Texas and other states started making it harder to register and to vote.

GARCIA-NAVARRO: So when you talk about changing voting regulations, describe for us what these changes entail.

HASEN: Well, the one that gets the most attention has to do with the kinds of identification you might have to show in order to vote. It's often been pointed out that in Texas, you may vote with a concealed weapons permit but not with a student ID. And so some people think these laws have been made in this way to make it harder for people who are likely to vote for Democrats to vote. And with the exception of Rhode Island, every state that has passed a stricter voter identification law has been a Republican state. It certainly lines up with the common wisdom that expanding the electorate helps Democrats.

GARCIA-NAVARRO: What are the different ways that we can understand the correlation between race and political party when we look at voters?

HASEN: Now we have this overlapping correlation between race and party, where, especially in the American South, African-American voters are overwhelmingly supporting the Democratic Party, and white voters are overwhelmingly supporting the Republican Party.

So how can courts deal with this new conjoined polarization? One way - what the court seems to be doing in some of its cases, such as racial gerrymandering cases, is deciding whether race or party is the predominant motivation of the legislature. And if the legislature is motivated by race discrimination, it's illegal. And if it's motivated to help a political party, that's OK. A second way is to treat race and party as proxies for one another. So if there's discrimination on the basis of party, that's also discrimination on the basis of race.

But looking ahead to the Supreme Court over the next few years, if we imagine a conservative majority, we could see none of these things happening. What we could see instead is the Supreme Court deciding that whether there's discrimination on the basis of race or party, that that's just a political question, and the courts are going to stay out, letting the victor get the spoils. That's much more likely to be a situation that is going to leave whoever's in political power with the ability to change voting rules to help whoever's in power stay in power.

GARCIA-NAVARRO: Richard Hasen, professor of law and political science at UC Irvine School of Law, thanks so much.

HASEN: Thank you.

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