51 Pages Posted: 23 Aug 2014
Date Written: August 21, 2014
In Shelby County v. Holder, the Supreme Court rendered one of the most potent antidiscrimination provisions of American law a dead letter: the preclearance regime of the Voting Rights Act of 1965 (VRA). Shelby County held that the formula determining which jurisdictions are required to obtain federal approval for voting law changes was outdated and offensive to states’ rights. The Court ignored ample evidence of discrimination in the covered jurisdictions, focusing instead on improvements in voter turnout and registration. We present new empirical evidence that the proposal and passage of restrictive voting laws, such as photo identification requirements and reductions of early voting opportunities, are associated with racial factors such as larger African American populations and increases in minority voter turnout. These results are consistent with the interpretation that restrictive voting laws have been pursued in order to suppress Democratic-leaning minority voters, and they are suggestive that racial discrimination is a contributing factor to this type of legislation. The increases in registration and turnout that Shelby County hailed as evidence that preclearance is no longer needed are actually risk factors for potentially discriminatory voting laws. We suggest opportunities for countering discrimination after Shelby County. The evidence we present is relevant to litigation under remaining provisions of the VRA, especially the prohibition on voting laws with a discriminatory effect under Section 2. Finally, we suggest that our findings should inform the Congressional response to Shelby County: a new coverage formula should include the racial characteristics we identify as risk factors.
Keywords: civil rights, voting rights, racial justice, discrimination, constitutional law
Suggested Citation: Suggested Citation
Vandewalker, Ian and Bentele, Keith Gunnar, Vulnerability in Numbers: Racial Composition of the Electorate, Voter Suppression, and the Voting Rights Act (August 21, 2014). Harvard Latino Law Review, Vol. 18, 2015. Available at SSRN: https://ssrn.com/abstract=2484850