… or, how to escape the uneasy mix of race and party in court challenges to partisan redistricting, as suggested by Rick Hasen of the Election Law Blog in this article posted at SSRN. Hasen suggests three ways to approach the issue of race in gerrymandering:

1. Race or party: In this approach, a court’s task is to decide whether a case is “really” about race rather than party, with certain legal consequences flowing from the determination. Some of the racial gerrymandering cases fit into this category. Based on Easley v. Cromartie,  courts need to decide whether race or party predominated in drawing district lines. If race predominated, the lines are likely impermissible.

2. Party as a proxy for race, equating proof of discriminatory partisan intent with proof of discriminatory racial intent. The Fourth Circuit used this approach in a recent case involving the constitutionality of a major North Carolina voting law which imposed a strict voter identification requirement and made cutbacks to other voting rules. The Court held that the state legislature acted with a racially discriminatory intent because legislators relied upon racial data to achieve partisan ends in designing this law, and this reliance made party discrimination a form of race discrimination.

3.  The party all the time approach: courts shift toward policing partisan election laws more directly. It is not that race does not matter on the ground in states and areas with conjoined polarization, but that a legal focus on the racial aspects of the dispute obscures rather than elucidates the stakes and the appropriate remedies. A move toward party all the time would have courts focus on partisan gerrymandering and dilution in the redistricting context, and on partisan intent and effect as to voting restrictions.