Beyond the Discrimination Model on Voting

Abstract

The Supreme Court’s contentious decision in Shelby County v. Holder closes the chapter on the most important and most successful of the civil rights laws from the 1960s. For the majority of the divided Court, the preclearance requirements of the Voting Rights Act for changing electoral practices stigmatized sovereign states and no longer bore a logical relation to the voting problems of today. That combination proved fatal for Congress’s efforts to protect minority voters through the 14th and 15th amendments. At the same time, the Court in Arizona v. Inter Tribal Council of Arizona reaffirmed expansive congressional powers under the Elections Clause. This Article contrasts the distinct sources of federal power over elections and compares their effectiveness for the renewed battles over voter eligibility. Unlike the concerns of racial exclusion under Jim Crow, the argument presented is that current voting controversies are likely motivated by partisan zeal and emerge in contested partisan environments. The Article concludes with a proposed administrative process based on the Elections Clause that can potentially be more effective than the provisions of the Voting Rights Act struck down in Shelby County.