The New Vote Denial: Where Election Reform Meets the Voting Rights Act

Abstract

The years since the 2000 presidential election have witnessed unprecedented attention to the mechanics of election administration. Among the administrative practices considered under the general rubric of election reform are voter registration, provisional voting, ballot security measures, voting machines, early and absentee voting, challenges to voter eligibility, and the process for recounts and contests. Recognizing that every vote really does matter, at least in some elections, the parties have made these subjects a new electoral battleground. This focus on the nuts and bolts of election administration coincides with increased attention to the Voting Rights Act of 1965 (VRA), key provisions of the which are scheduled to expire in 2007.

The subject of this article is the cases in which these two areas - election reform and VRA enforcement - intersect. More specifically, it is on cases in which minority voters allege that administrative practices result in the disproportionate denial of their votes. The most prominent examples are cases in the areas of voting equipment, felon disenfranchisement, and voter ID requirements. The question that frames the article's analysis is how the VRA, particularly Section 2 of that Act, should apply to these cases. The article distinguishes cases involving vote denial from those involving vote dilution. The former term refers to practices that are deployed in such a way as to prevent people from voting or having their votes counted (such as literacy tests, poll taxes, all-white primaries, and language barriers), while the latter refers to practices that diminish minorities' political influence where they were allowed to vote (such as at-large elections and redistricting plans). The first generation of VRA enforcement focused mainly on vote denial, while the second generation focused mainly on vote dilution.

The application of the VRA to practices such as felon disenfranchisement, voting machines, and voter ID laws represents a new generation of VRA enforcement. But there is relatively little case authority or academic commentary on Section 2's application to such new vote denial cases. This article attempts to address this shortcoming by suggesting a legal standard that should govern Section 2 vote denial claims. In particular, it recommends a burden-shifting test that borrows from cases interpreting Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. This test has the advantage of capturing those practices which weaken minorities' voting strength and may result from intentional discrimination, while still taking into account governmental ends that are so compelling as to justify disproportionate barriers to minority participation.

Keywords: elections, election law, voting rights, election reform, VRA, voting rights act, Section 2, HAVA, voting technology, punch card, felon disenfranchisement, voter ID, voter identification

JEL Classification: D63, D72, J15, K40, K49