Applying Section 2 to the New Vote Denial

49 Pages Posted: 25 Jun 2015 Last revised: 30 Jun 2015

See all articles by Daniel P. Tokaji

Daniel P. Tokaji

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: June 23, 2015


Over the past decade, many states have enacted laws that make it more difficult for eligible citizens to vote. In 2006, I labeled such restrictions the “new vote denial,” comparing them to practices that were used to disenfranchise African Americans before enactment of the Voting Rights Act of 1965 (“VRA”). Much has happened since then. Voting rights advocates have challenged state voting restrictions under both the Fourteenth Amendment and Section 2 of the VRA, with mixed success. In 2014, the Supreme Court was asked to intervene in four cases involving Section 2 vote denial claims. The Court allowed voting restrictions to take effect in Ohio, North Carolina, and Texas, while temporarily stopping Wisconsin’s voter ID law. Yet the legal test governing Section 2 vote denial claims remains uncertain.

This article proposes a three-part test for Section 2 vote denial claims, one that builds upon my previous scholarship, the work of other scholars, and decisions by the Supreme Court and lower courts. First, plaintiffs would have to demonstrate that the challenged practice has a disparate impact on minority voters. Second, plaintiffs would have to demonstrate that the disparate impact is traceable to the challenged practice’s interaction with social and historical conditions, including but not limited to intentional discrimination by the state. Third, courts should balance the harm to minority voters against the state’s proffered interests. At this stage, the burden would lie with the state to show by clear and convincing evidence that the challenged practice’s benefits outweigh its harms to voters. Because my proposed test draws on the standard for vote denial claims under the Fourteenth Amendment, its application falls safely within the scope of Congress’ constitutional enforcement power.

Section 2 litigation is no panacea, but could serve as an effective shield against some forms of the new vote denial, complementing constitutional claims. Part I of the Article provides background on Section 2, focusing on the uncertainty over the precise standard that should govern burdens on participation. Part II discusses lower court decisions on vote denial claims under Section 2. Part III presents a refined standard for vote denial claims under Section 2, one that addresses practical problems that have emerged in lower court decisions and is consistent with Congress’ enforcement power. Part IV concludes with some observations on benefits and limitations of the race-discrimination model in preserving access to the vote.

Keywords: Voting Rights Act, voting, Shelby County, vote suppression, vote denial, Supreme Court

JEL Classification: K00, K40, K49

Suggested Citation

Tokaji, Daniel P., Applying Section 2 to the New Vote Denial (June 23, 2015). 50 Harv. C.R.-C.L. L. Rev. 439 (2015); Ohio State Public Law Working Paper No. 298. Available at SSRN:

Daniel P. Tokaji (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

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