Election Laws Disproportionately Disadvantaging Racial Minorities, and the Futility of Trying to Solve Today's Problems with Yesterday's Never Very Good Tools

Abstract

In the final weeks leading up to the 2020 national election, scarcely a day seemed to pass without news of a challenge to, or court decision on, a state election law that, though race-neutral on its face, was likely to disproportionately disadvantage racial minorities. Sadly, state legislative activities since the election have offered little reason to believe that election laws disproportionately disadvantaging racial minorities are apt to become a thing of the past anytime soon. The number and variety of election laws disproportionately disadvantaging racial minorities have been on the rise for decades, and challenges to those laws on equal protection and other grounds have rarely been successful.

Much of the credit—or, more accurately, blame—for the challengers’ distinct lack of success in seeking to invalidate such laws under the Equal Protection Clause goes to an approach to disproportionate racial impact that the U.S. Supreme Court developed in three decisions in the mid-to-late 1970s. Although that approach has significance for many areas of law besides election law, election law may well hold the dubious distinction of being the area of law in which the approach has done the most damage.

After synthesizing the basic components of the Court’s approach, this Article discusses their practical implications in order to establish that the Court’s approach assigns little constitutional importance to disproportionate racial impact. The Article then argues that the Court’s assignment of little constitutional importance to disproportionate racial impact is at odds with the most basic understanding of the Fourteenth Amendment’s history as well as equal protection theory. After proposing an alternative approach under the Equal Protection Clause to disproportionate racial impact, the Article applies it to election laws disproportionately disadvantaging racial minorities. The Article concludes with some observations about the immediate and long-term importance of its proposed rethinking of equal protection constraints.

Keywords: election law, equal protection, Equal Protection Clause, disproportionate racial impact, disproportionate disadvantage, disparate impact, racial discrimination, racial minorities, voting, Washington v. Davis, Arlington Heights, Feeney, suspect classification, voter fraud, state constitutional law