Vote Denial and Defense: A Strategic Enforcement Proposal for Section 2 of the Voting Rights Act

In the years since the Supreme Court in Shelby County v. Holder held unconstitutional the formula used to enforce the core mechanism for preventing discrimination in elections, several states have enacted laws or policies that make it harder for people to vote. Often, these laws more heavily burden minority voters as a result of social or historical conditions of discrimination that are both internal and external to the political process. Section 2 of the Voting Rights Act is the primary remaining remedy for these denials or abridgments of the right to vote, but proponents of restrictive voting laws are increasingly making explicit arguments against the constitutionality of that provision. At the same time, the Supreme Court has in recent years expressed significant doubt about the propriety of disparate impact statutes in general and section 2 in particular. An invalidated or curtailed section 2 would be an enormous setback in the fight against voter suppression, and election law advocates should actively manage this constitutional risk. This Note recognizes the potential constitutional hazards for section 2 and recommends a set of eight litigation considerations to strategically confront laws that disenfranchise minority voters. These considerations will help advocates target the most harmful and least justified burdens on voting while directing advocates away from cases that could provide a vehicle for challenging the constitutionality of section 2.