The Yale Law Journal: A Post-Shelby Strategy: Exposing Discriminatory Intent in Voting Rights Litigation

Danielle Lang & J. Gerald Hebert
Feb 8, 2018
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This Essay explores the importance of this strategic move in this generation of voting rights litigation and addresses some of the challenges that litigators face in proving these claims. First, intentional discrimination claims, where successful, open the door to preclearance under Section 3 of the VRA. Preclearance was vital to the VRA’s prior success because it stopped discrimination in voting before it happened. This is important because once discriminatory voting changes are in effect for an election, the damage cannot be fully reversed.10 Under Section 3’s “bail-in” process, jurisdictions that engage in intentional discrimination or other constitutional violations can be put under a preclearance system similar to the one that operated under Sections 4 and 5.11Moreover, evidence of discriminatory intent can strengthen Section 2 results claims in the same case, build a compelling record of ongoing racial discrimination to use in future cases, and provide political and legal support to a future VRA restoration bill. Intentional discrimination claims—brought where appropriate and supported by the evidence—force an appraisal of the true motives underlying laws passed behind the “cloak of ballot integrity.”12 They also can help spark a discussion about the continuing impact of racial discrimination in elections, and remind us how far we still have to go.

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For decades, intentional discrimination claims were relatively rare in voting rights cases. Both scholarly and judicial attention, therefore, was focused on developing the results test jurisprudence under Section 2 of the Voting Rights Act. But the influx of new barriers to voting and the loss of preclearance since Shelby County has changed the legal landscape and ushered in a new strategic embrace of intentional discrimination claims. While intentional discrimination claims impose a higher evidentiary burden, recent success with these claims demonstrates their legal and strategic benefits. By holding jurisdictions accountable for not only the results of their actions but also their motives, voting rights plaintiffs can secure more complete remedies, win back preclearance, build a public record of continuing racial discrimination, and expose the voter fraud myth as pretext  in neutral fora. In so doing, our democracy will be strengthened and the most precious right we have as Americans, the right to vote, will be safeguarded for future generations.

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