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excerpted from: Jamelia N. Morgan, Disparate Impact and Voting Rights: How Objections to Impact-based Claims Prevent Plaintiffs from Prevailing in Cases Challenging New Forms of Disenfranchisement, 9 Alabama Civil Rights & Civil Liberties Law Review 93 (2018) (337 Footnotes)(Full Article Not Available)


JameliaNMorganCongress passed the Voting Rights Act of 1965 to give full effect to the mandates of the Fifteenth Amendment, enacted to remove racial barriers to the right to vote. Ratified close to a century before the enactment of the Voting Rights Act, the Amendment had proved a hollow promise and offered little legal protection for Blacks who fought violence and intimidation when effectuating their right to vote. Central to the purposes of the Act was the notion that by ensuring and protecting access to the ballot, minorities would be able to effectively exercise their right to vote, participate unencumbered by racial discrimination as full members of the electorate, and ultimately achieve political equality.

The Voting Rights Act proved effective in removing "first-generation barriers" to voting and Blacks began to register in staggering numbers. These successes were not without setbacks, however, because as "[b]lacks began to register and vote in increasing numbers, their electoral expectations were frustrated by political institutions that were well-insulated from challenge." To challenge these political institutions, plaintiffs targeted electoral systems and practices with dilutionary effects on minority voting strength. These particular challenges, known as vote dilution claims, focused on challenging electoral systems and structures that diluted the voting strength of minority voters vis-…-vis non-minority voters. The advent of these "second-generation barriers" to the ballot signaled a shift from explicit exclusionary practices to dilutive electoral devices by state and local subdivisions. That in turn shifted the focus from questions of whether a particular voting standard, practice or procedure outright denied minorities access to the ballot, to whether the particular policy impaired the effectiveness of that right to vote.

Comprehensive voting rights laws have once again become necessary to protect the voting rights of minority groups and to ensure these groups equal opportunity to participate in the political process. New forms of vote denial directly implicate access to the ballot. Like their predecessors, the new vote denial claims involve "practices that disproportionately exclude minority voters from participating in the electoral process at all." Similar to the earliest forms of race-based disenfranchisement, the most recent wave of vote denial claims directly "implicate the value of participation." These types of claims can be distinguished from vote dilution cases that "involve practices that diminish minorities' political influence,' such as at-large elections and redistricting plans that either weaken or keep minorities' voting strength weak."

The new forms of vote denial include practices adopted by jurisdictions that either intentionally or unintentionally restrict access to the ballot. Although there is some evidence that the newest forms of vote denial were adopted with the express intent of reducing minority voter turnout,"smoking gun" evidence demonstrating explicitly discriminatory intent is few and far between. Yet, illicit discrimination may still be present within electoral systems. Recognizing that there were forms of racial discrimination that might not be captured through the intent-based standard of liability,*98 Congress revised Section 2 of the Voting Rights Act in 1982 to incorporate a results test that, pursuant to the totality of the circumstances, would enable plaintiffs to present circumstantial evidence that would permit the factfinder to draw the inference of racial discrimination, even when evidence of explicit discriminatory intent was lacking. On the whole, the results test enables plaintiffs to demonstrate that a policy with a disproportionate racial impact, when coupled with other social and historical factors, is a denial or abridgement of the right to vote on account of race. In this way, the results test can be characterized as a type of disparate "impact-plus" standard.

In recent years, courts deciding vote denial cases under Section 2 have scaled back the disparate impact-plus standard, demonstrating an increasing reluctance to accept circumstantial evidence of discriminatory intent. Stated differently, these courts have declined to draw the inference that the challenged electoral policy or practice, when combined with historical and social factors, deprive minority individuals of the right to vote on account of race, and in some cases have required an evidentiary showing amounting to express discriminatory intent. This article will demonstrate how these courts' discomfort with disparate impact-like claims in the vote dilution context have increased the evidentiary burden for plaintiffs in Section 2 cases challenging vote denial--a separate and distinct prong of the Voting Rights Act involving issues of access to the ballot. Such heightened standards increase the burdens minority plaintiffs face in challenging newer forms of vote denial, such as voter identification laws, proof of citizenship requirements, and reductions in early voting days, which have sprung up in state legislatures across the country.

As this article will show, the reluctance of courts to accept evidence of "impact plus" stems in part from a concern that the remedies required by impact-based claims under Section 2 of the Voting Rights Act will involve essentialism and an affront to individual dignity. These concerns are animated in the vote dilution context where, in cases challenging the dilution of the minority vote, and not involving intentional vote dilution, objections have centered on the notion that Section 2's results test requires courts to make essentialist claims regarding minority and non-minority voting patterns and election choices. Such objections are misplaced in the vote denial context, however, and as will be demonstrated below, the spillover effects from the consternation over impact-based vote dilution in the vote denial context have impeded the ability of plaintiffs to prevail on these challenges in court.

Part I of the article will provide an overview of the arguments challenging vote dilution claims on both constitutional and statutory grounds. In particular, the section will explore the objections to impact-based vote dilution claims on the ground that these claims promote essentialism and require what has been construed as the impermissible remedy of proportional racial representation.

Part II will demonstrate how these objections to vote dilution claims are misplaced in the vote denial context.

Part III will demonstrate how critiques in the vote dilution context have been imported into the vote denial context and how judicial aversion to disparate impact tests have limited the ability of plaintiffs to obtain relief for new forms of vote suppression. In particular, the section will describe how judicial consternation over the constitutionality of claims based in part on disparate impact--given express constitutional and statutory mandates against entitlements to proportional racial representation--have increased the plaintiff's burden by heightening the evidentiary showing even under Section 2's more lenient results-based test.

Part IV will offer grounds for resolving the challenges faced by plaintiffs challenging new forms of vote denial.