Disparate Impact and Voting Rights: How Objections to Impact-Based Claims Prevent Plaintiffs from Prevailing in Cases Challenging New Forms of Disenfranchisement
Alabama Civil Rights & Civil Liberties Law Review, Volume 9, Issue 1, 2018
75 Pages Posted: 9 Mar 2018 Last revised: 23 Mar 2018
Date Written: March 5, 2018
This article documents the spillover effects of the politics of disparate impact in cases challenging new forms of vote denial under Section 2 of the Voting Rights Act. The paper argues that within the vote denial context, these spillover effects have heightened the evidentiary burdens for plaintiffs. In particular, judicial consternation over the constitutionality of claims based in part on disparate impact — given, for example, express statutory mandates against entitlements to proportional racial representation — have both resulted in a confused and disorganized body of case law and have, most troublingly, increased the plaintiffs’ burden under Section 2’s results-based test. These spillover effects have impeded the ability of plaintiffs to challenge new forms of vote denial — a legal claim that does not involve the constitutional and statutory objections to impact-based claims that arise in vote dilution cases. These protections are even more important after the Supreme Court invalidated Section 4(b) of the Voting Rights Act — the coverage formula underlying Section 5’s preclearance requirements in Shelby County v. Holder, 570 U.S. ___ (2013).
Building on existing scholarship calling for a distinct test for Section 2 vote denial claims, this paper develops a new test that more adequately captures the nature of the interests at stake in these challenges to new forms of exclusion from, or inequalities of opportunity within, the political process. By enabling plaintiffs to challenge new forms of exclusion and inequality in the political process, yet recognizing the interest of government in managing elections in an era characterized by huge advances in racial progress, the after establishes a framework to aid plaintiffs in challenging discriminatory policies and practices that threaten to forestall or rollback the progress made under the Voting Rights Act in a post-Shelby County world.
Keywords: voting rights, Voting Rights Act, discrimination
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