Justice Kennedy to the Rescue?
by Luis Fuentes-Rohwer
Section 2 of the Voting Rights Act is a doctrinal mess. Through a totality of circumstances inquiry, Section 2 has evolved from its modest beginnings as a codification of the Fifteenth Amendment into a “mysterious judicial inquiry" that places the Supreme Court in the enviable position of policing the contours of the politics of race... Professor Elmendorf’s article is a welcome response to this state of affairs. He offers an understanding of Section 2 “as a delegation of authority to the courts to develop a common law of racially fair elections, guided by certain substantive and evidentiary norms, as well as norms about legal change.” This is a thoughtful and intriguing proposal...That said, I part company with Professor Elmendorf, if modestly so, in one crucial respect. His proposal requires much greater faith in the conservative Justices on the Court than the existing evidence allows me to endorse.
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Section 2 is Dead: Long Live Section 2
by Guy-Uriel E. Charles
Voting rights law is in the midst of an existential crisis. The Voting Rights Act (VRA) is probably the most celebrated civil rights statute ever enacted by Congress. By most accounts, the central concern that gave rise to the VRA—racial animus against black voters and black candidates by white state and private actors—has, blessedly, retreated into the annals of history since the Act’s passage...Though isolated instances of racial animus in voting persist, and may be with us always, the VRA has replaced the systematic, state-sponsored racial exclusion that affected the rights of millions of American citizens seeking to participate in the political process with a new reality. Literacy tests are no more, at least as a feature of the electoral process; grandfather clauses are buried with the grandfathers; retaliation by private employers against black voters who dared to register to vote exists only in our memories, if at all; and few twenty-first century Americans could imagine that anyone would assault a voter or group of voters for exercising their right to vote, much less that the state would fail to prosecute such an attacker. The question then is what steps remain for voting rights policy.
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