The US attorney general is preparing to sue state of Georgia as of writing. The goal of these voting laws, activists say, is to reduce Democratic turnout after Democrats won the state's electoral votes and Senate seats around the end of 2020.

I have read that attempting to make it harder for a political party's base to vote for the sake of harming them electorally is illegal. Is it illegal for a state legislature to make it harder for groups that predominantly support one political party to vote to hurt that party electorally? If so have any states ever been punished for this?

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    If you're just looking for which federal laws might apply here, then the Law SE site would be probably be a better choice.
    – Giter
    Commented Jun 25, 2021 at 15:53
  • I was thinking the same thing but this involves politics as well so I decided to put it here. It could easily go with both. Commented Jun 25, 2021 at 15:57
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    The suit isn't about "groups that predominantly support one political party." It is about "denial or abridgement of the right of any citizen to vote on account of race, color, or membership in a language minority group."
    – Rick Smith
    Commented Jun 25, 2021 at 16:06
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    Yes, but the groups that are being targeted translate to that. The Black voter demographic alone gave Joe Biden 50% or more of his votes in the state. This Georgia law could be easily sued in both ways I don't care about Garland's specific suit. Commented Jun 25, 2021 at 16:10
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    As expressed in the title question and the "Is it illegal ..." body question, the Court has already ruled the "political gerrymandering" is not unconstitutional. Note that these questions could imply "gerrymandering" even though unstated. However, the reference to the "US attorney general is preparing" implies a specific suit, which happens to be related to the Section 2 of the Voting Rights Act of 1965. I would suggest rewording to provide more clarity and references to the proposed suit.
    – Rick Smith
    Commented Jun 25, 2021 at 16:51

1 Answer 1


Is it illegal for a state legislature to make it harder for groups that predominantly support one political party to vote to hurt that party electorally? If so have any states ever been punished for this?

Sort of, but not precisely. The protection of the many particular groups is stronger than the protection of the political parties per se.

The Voting Rights Act of 1965 previously required states which had a history of discrimination to obtain pre-qualification from the federal government for changes in election administration practices or laws. But, the U.S. Supreme Court in the case of Shelby County v. Holder (2013), invalidated that provision of the Voting Rights Act, giving states much more latitude in practice to enact restrictions.

The closest thing to a case on point is the U.S. Supreme Court case of Romer v. Evans, 517 U.S. 620 (1996).

It's narrow holding was that a Colorado requirement that local government provisions protecting gay rights were subject to greater legislative limitations than other municipal legislation unconstitutionally violated the 14th Amendment's equal protection clause. The official syllabus of the case explains that:

After various Colorado municipalities passed ordinances banning discrimination based on sexual orientation in housing, employment, education, public accommodations, health and welfare services, and other transactions and activities, Colorado voters adopted by statewide referendum "Amendment 2" to the State Constitution, which precludes all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their "homosexual, lesbian or bisexual orientation, conduct, practices or relationships." Respondents, who include aggrieved homosexuals and municipalities, commenced this litigation in state court against petitioner state parties to declare Amendment 2 invalid and enjoin its enforcement. The trial court's grant of a preliminary injunction was sustained by the Colorado Supreme Court, which held that Amendment 2 was subject to strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment because it infringed the fundamental right of gays and lesbians to participate in the political process. On remand, the trial court found that the amendment failed to satisfy strict scrutiny. It enjoined Amendment 2's enforcement, and the State Supreme Court affirmed.

Held: Amendment 2 violates the Equal Protection Clause. P

(a) The State's principal argument that Amendment 2 puts gays and lesbians in the same position as all other persons by denying them special rights is rejected as implausible. The extent of the change in legal status effected by this law is evident from the authoritative construction of Colorado's Supreme Court-which establishes that the amendment's immediate effect is to repeal all existing statutes, regulations, ordinances, and policies of state and local entities barring discrimination based on sexual orientation, and that its ultimate effect is to prohibit any governmental entity from adopting similar, or more protective, measures in the future absent state constitutional amendment-and from a review of the terms, structure, and operation of the ordinances that would be repealed and prohibited by Amendment 2. Even if, as the State contends, homosexuals can find protection in laws and policies of general application, Amendment 2 goes well beyond merely depriving them of special rights. It imposes a broad disability upon those persons alone, forbidding them, but no others, to seek specific legal protection from injuries caused by discrimination in a wide range of public and private transactions.

(b) In order to reconcile the Fourteenth Amendment's promise that no person shall be denied equal protection with the practical reality that most legislation classifies for one purpose or another, the Court has stated that it will uphold a law that neither burdens a fundamental right nor targets a suspect class so long as the legislative classification bears a rational relation to some independent and legitimate legislative end. See, e. g., Heller v. Doe, 509 U. S. 312, 319-320. Amendment 2 fails, indeed defies, even this conventional inquiry. First, the amendment is at once too narrow and too broad, identifying persons by a single trait and then denying them the possibility of protection across the board. This disqualification of a class of persons from the right to obtain specific protection from the law is unprecedented and is itself a denial of equal protection in the most literal sense. Second, the sheer breadth of Amendment 2, which makes a general announcement that gays and lesbians shall not have any particular protections from the law, is so far removed from the reasons offered for it, i. e., respect for other citizens' freedom of association, particularly landlords or employers who have personal or religious objections to homosexuality, and the State's interest in conserving resources to fight discrimination against other groups, that the amendment cannot be explained by reference to those reasons; the amendment raises the inevitable inference that it is born of animosity toward the class that it affects. Amendment 2 cannot be said to be directed to an identifiable legitimate purpose or discrete objective. It is a status-based classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.

Unlike sexual orientation, political party membership is not itself a "protected classification." Indeed, in 2019, the U.S. Supreme Court specifically held that intentional partisan gerrymandering, per se, was not unconstitutional, in the case of Rucho v. Common Cause. The official syllabus of that case sums up the Court's conclusion as follows:

The conclusion that partisan gerrymandering claims are not justiciable neither condones excessive partisan gerrymandering nor condemns complaints about districting to echo into a void. Numerous States are actively addressing the issue through state constitutional amendments and legislation placing power to draw electoral districts in the hands of independent commissions, mandating particular districting criteria for their mapmakers, or prohibiting drawing district lines for partisan advantage. The Framers also gave Congress the power to do something about partisan gerrymandering in the Elections Clause. That avenue for reform established by the Framers, and used by Congress in the past, remains open.

On the other hand, the U.S. courts have held that the constitution places limits (in part, under the First Amendment Freedom of Association and under the 14th Amendment) upon what limitations can be placed on third-party ballot access.

The Supreme Court has not expressly ruled on the maximum level of restrictions that can be imposed on an otherwise qualified candidate or political party seeking ballot access. As a result, lower courts have often reached difficult conclusions about whether a particular ballot access rule is unconstitutional.

Requiring an otherwise eligible candidate or political party to obtain signatures greater than 5% of the eligible voters in the previous election may be unconstitutional. This is based on Jenness v. Fortson, 403 U.S. 431 (1971); the court upheld a restrictive ballot access law with this 5% signature requirement, whereas the Williams v. Rhodes (1969) had involved a 15% signature requirement. Most State ballot access requirements, even the more restrictive ones, are less than 5%, and the Supreme Court has generally refused to hear ballot access cases that involved an Independent or minor party candidate challenging a ballot access law that requires less than 5%.

The implication of the ballot access cases is that some election laws which specifically (and really intentionally as well) disadvantage particular political parties, as opposed to merely having the effect of favoring one party over another in connection with neutral election administration laws may be unconstitutional.

Also, while partisan discrimination in election administration and election laws is not allowed, racial discrimination in election administration and election laws (including racial gerrymandering) is prohibited by both the constitution and statutory provisions such as the Voter Rights Act. So, since there is a strong correlation between race and partisan affiliation, laws which have the effect of trying to favor one political party over another, often constitute illegal racial inequalities in election administration and election law. As Wikipedia explains in its entry on the racial gerrymandering U.S. Supreme Court case Miller v. Johnson, 515 U.S. 900 (1995):

Question before the Supreme Court

Is racial gerrymandering of the congressional redistricting process a violation of the Equal Protection Clause?

Decision of the Court

Justice Kennedy wrote the majority opinion for the Court. Ruling against the district, the Court declared the district unconstitutional under the Equal Protection Clause of the Fourteenth Amendment, according to the interpretation in Shaw v. Reno (1993). The court noted that in some instances, "a reapportionment plan may be so highly irregular and bizarre in shape that it rationally cannot be understood as anything other than an effort to segregate voters based on race." Citing Shaw v. Reno, the majority concluded that strict scrutiny is required whenever race is the "overriding, predominant force" in the redistricting process.

The U.S. Constitution (as amended) does not contain an affirmative right to vote (which is established by state law), but does bar the right to vote from being burdened or abridged on the basis of race, previous condition of servitude, sex, age over eighteen, or non-payment of a poll tax. Many partisan voting disabilities would also violate these limitations.

There are also federal statutory protections for voters in military service and disabled voters, and the 14th Amendment together with Article I of the U.S. Constitution and statutory law, also prohibits discrimination against naturalized citizens relative to natural born citizens in all respects except qualifications to run as President of the United States.

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