The Nonpartisanship Principle
28 Pages Posted: 14 Aug 2016
Date Written: June 2016
This symposium contribution argues that partisan political advantage is not a legitimate purpose for election rules, requirements, or practices that burden the right to vote. This “nonpartisanship principle” might seem self-evident, insofar as the essence of representative democracy is the selection of leaders through free and fair elections 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.
Even a casual observer of our elections, however, cannot help but notice that they are 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. 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). Likewise, it has largely declined to inquire into the partisan motivations behind voter ID laws and other requirements that tend to suppress particular classes of voters.
The symposium contribution argues that it is time to take the nonpartisanship principle more seriously, both as a constitutional and policy matter. This argument begins by discussing the constitutional foundations of the nonpartisanship principle in the Court’s First and Fourteenth Amendment jurisprudence. It then examines the Court’s refusal to enforce the nonpartisanship principle in the context of partisan political gerrymandering, and considers its impact on the electoral process. It also considers the implications of the nonpartisanship principle for photo ID and other requirements that tend to suppress the votes of particular groups on the basis of their partisan alignment. The article concludes that the best way to enforce the nonpartisanship principle may be to take control over elections away from partisan elected officials.
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