The Elephant in the Room: Intentional Voter Suppression

Supreme Court Review (2019, Forthcoming)

41 Pages Posted: 29 Mar 2019

See all articles by Lisa Marshall Manheim

Lisa Marshall Manheim

University of Washington - School of Law

Elizabeth G. Porter

University of Washington School of Law

Date Written: March 5, 2019

Abstract

Since its inception, the Roberts Court has acquiesced in—and at times even abetted—the attempts of many states to make it harder for Americans to vote. Illustrative is a 2018 decision, Husted v. A. Philip Randolph Institute, in which the Court rejected a statutory challenge to a state’s expansive purges of voting lists. In Husted the Court dismissed the threat of voter suppression as simply not “relevant” to the case before it. By declining to look beyond states’ unsupported explanations for voter-suppressive practices, the Court is leaving the right to vote to the vagaries of the political process.

It didn’t have to be this way. For half a century, the Court has recognized a constitutional right to vote. This Article sketches a claim that precedent might allow, if only the Court were willing to reconsider its trajectory and acknowledge the reality and constitutional implications of intentional voter suppression. More specifically, we turn to the neglected Equal Protection framework developed by the Supreme Court in the voting-rights context to argue that a state acts unconstitutionally when it acts with the intent of making it less likely that an eligible voter’s ballot will be cast or counted. If accepted, this straightforward principle would require judicial scrutiny of election practices to move beyond talking points, to allow genuine adversarial testing of states’ justifications for restrictive measures.

Keywords: election law, voter fraud, voting rights, Husted v. A. Philip Randolph Institute, National Voter Registration Act, civil rights, equal protection

Suggested Citation

Manheim, Lisa Marshall and Porter, Elizabeth G., The Elephant in the Room: Intentional Voter Suppression (March 5, 2019). Supreme Court Review (2019, Forthcoming). Available at SSRN: https://ssrn.com/abstract=3347407

Lisa Marshall Manheim (Contact Author)

University of Washington - School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

HOME PAGE: https://www.law.washington.edu/directory/profile.aspx?ID=603

Elizabeth G. Porter

University of Washington School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States
206-616-7115 (Phone)

HOME PAGE: https://www.law.washington.edu/directory/profile.aspx?ID=513

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