What is and isn't racially discriminatory in Georgia's new law, and why constitutional principles are kind of the problem

 Pay attention to what matters.  The Georgia law matters, not merely because of Georgia itself, but because it is a test case and a template.  Democracy matters because it is a precondition.  That said, there are a lot of misconceptions about what is happening.  Short version:  yes, there are racially discriminatory elements, yes, that violates federal law and the Constitution, but some of the accusations overstep the evidence.  The big problem, and this is a problem with the Constitution, is that trying to manipulate election law for partisan purposes?  That does not violate federal statue or the Constitution.  Should it?  Yeah, but it doesn't.  So, we have a lot to address here, including a messy case.  Cooper v. Harris.

First, the basic fact.  Parties care about winning elections.  When manipulating the process, that's the goal.  What is the GOP trying to do in Georgia?  Win.  Period.  Elections are zero-sum contests between D's and R's.  Third parties don't matter.  Do Republican officials actually believe their own bullshit about fraud?  Some do, some don't, and it is hard to tell the con men from the dupes.  Of course, passing out water bottles is unrelated to fraud, but we'll get to that.  The point is that they are just trying to manipulate the law to win.  Period.

Now think about the actual Jim Crow era, of white primaries in the one-party Democratic South.  Disenfranchise African-Americans by policy out of a belief that the first priority, procedurally speaking, was to ensure that white people just controlled the system.  Once that was established, whites could fight amongst themselves for power, locking African-Americans out of the small-d and capital-D democratic/Democratic processes.  It was about race, by which I mean that the choices being made about electoral procedure were motivated by a desire, not just to win, but to keep black people out of the process because they were the wrong race.

What is happening now is more complicated.  It is not that Georgia Republicans said to themselves, "we need to keep those people out of the process because they are the wrong race."  Give Brian Kemp a magic trick-- a law that happens to reduce black participation more than white participation, without saying a fucking thing about race-- and would he take it?  Of course.  That's what's going on.  Why?  Partisanship.  And you know what's really, really highly correlated with partisanship?  Race.

So here's the thing about looking at "correlations with race."  Always ask yourself, if you are focusing on race, are you focusing on the causal factor, or a spurious variable?  Too often, the left fetishizes the spurious over the causal.  The causal is usually the economic rather than the racial.  One of my primary annoyances with the left right now is its ideological objection to the social scientific process of controlled analysis to separate the causal from the spurious.  See:  Kendi, Ibram X.

Here, though, race actually is causal.  Why?  Because over the last bunch o' decades, race has been a useful proxy for party for those thinking about election law, as 90% or so of African-Americans vote D.  So, a Republican who wants to fuck with the system, will say, hey, I have data on race, and if I can find a way to fuck with black people, I can win elections.  And not that it is morally right, or any consolation to African-Americans fucked by this process, but the logic is different from the Jim Crow logic.  It is not the logic of a true white supremacist.  It is merely the logic of a sociopathic pragmatist.  Which... is... so... much... um... not better in any way, but must be noted to be different because I am a linguistic stickler.

And so we come to the complications of the law.  Federal law tries to prevent Brian Kemp from pulling his magic trick.  Why?  Because after white primaries were thrown out, the Southern Democrats pulled all sorts of that shit.  Literacy tests, poll taxes, and such.  Where we are now is the disparate impact standard.  If a law has a disparate impact-- meaning, it hurts African-Americans more than whites-- it runs afoul of civil rights law.  Basically, we are trying to keep a check on "systemic racism," because we don't want Brian Kemp pulling his magic trick.

We can evaluate a system for its racial impact without evaluating any one individual.  That's how we get around Brian Kemp and his fucking bullshit.  This is why we have the concept of systemic racism.

The thing is, the concept requires us to evaluate policies based on race.  This is when we evaluate race, and stuff correlated with race.

Some of the Georgia law?  Yeah... race.  Example?  Black churches have mobilization drives, and Georgia is targeting that.  If that's about black churches and not white churches... race.  Disparate impact, violation of civil rights law.  Boom.  Done.  OK, courts are a fucking joke, but if we're being honest, we're done now.

However, not all of the law is really a civil rights violation.  The water bottle thing?  No.  Could you stretch and find a race correlation?  Yeah... lines and wait times, and pressing on the data, I could find something, but here's the thing.  The further you have to stretch, the more you are stretching civil rights law.

Is the water bottle thing douche-y as all fucking hell?  Yeah.  Is the Georgia GOP just trying to fuck with the system to win a partisan advantage?  Yes.  But... is that unconstitutional?  No.

And now we come to the crux of the matter.  Race and partisanship.  They are closely related, and we arrive at last at Cooper v. Harris.  The only type of gerrymander that is unconstitutional is a racial gerrymander, and in Cooper v. Harris, the Supreme Court held that, in the South in particular, race and partisanship are so closely intertwined that you can't do a racial gerrymander, then call it a partisan gerrymander to get away with it.  Race and party are constitutionally linked, according to Cooper v. Harris.  But... what's the principle that we are required to meet?  This is still messy.  If the goal truly is a partisan advantage, then when is the line crossed?  Legally, and constitutionally?  Gaining a partisan advantage by targeting race... that ain't gonna pass constitutional muster.  But... looking for a partisan advantage, and incidentally having a small, disparate impact?  Where's the Cooper v. Harris thing going to come in there?

Some of this shit really shouldn't pass constitutional muster, and if the Supreme Court hadn't struck down the pre-clearance section of the VRA in Shelby County, we wouldn't be here.  The goal, though, is winning elections.  And the only tool the Democrats have to fight these laws is when they run up against race.  Any trick, however sleazy or vile, that doesn't run sufficiently up against race, is constitutionally kosher, with the caveat that Cooper v. Harris sets a precedent of linking race and partisanship, particularly in the South.

My scholarly reputation is as an anti-goo-goo, because whenever there is a goo-goo reform, I tend to oppose it.  Yet any actual reading of my work shows that I oppose election laws that create partisan bias.  I just don't like competitive elections.  I want non-competitive elections, that are collectively unbiased.  My problem is with bias, and we don't have a guiding law or principle preventing that.  It is still not clear how to create one, and HR 1 is a mess.  A few good things, some bad things, but right now, the only tool for challenging election law is race.  Some of the Georgia law has a disparate impact, enough for a clear case, and some... I don't buy it.  But we should understand that the issue is one of seeking partisan advantage, and we don't actually have a guiding principle there.

That's the real problem.