Walter Olson
Walter Olson
The federal Voting Rights Act can be viewed, in part, as implementing the Fifteenth Amendment’s ban on denying or abridging the right to vote based on race. But in practice, the law goes much further than that, which is one reason it remains controversial. VRA lawsuits pursuing the logic of “disparate impact” often force localities to discontinue old election rules that were in no way motivated by race. Moreover, as the Supreme Court has noted with disapproval, the law’s informal pressure to equalize representation numbers can create incentives for localities to begin sorting and discriminating by race in election matters—stretching district lines to engineer desired racial outcomes, for example—and that in itself can be unconstitutional.
Meanwhile, as a practical matter, VRA lawsuits and their threat give private litigation groups real leverage over local election administrators, who frequently offer concessions not required by law rather than be dragged through the cost and uncertainty of the court process.
For these and other reasons, the Supreme Court in a series of cases has seen fit to trim back somewhat the breadth of VRA liability. Opponents, led by the private litigation groups whose practical clout derives from the law, have cried foul and pushed for Congress to expand the law. While those bills may have stalled, they have enjoyed more success in a campaign to get states to enact their versions of the VRA.
Depending on the drafting, these mini-VRAs in some cases restore elements struck from the national VRA by federal courts, sometimes extend the laws in new directions, and sometimes create new standards of proof more favorable to complainants. (Details here, courtesy National Conference of State Legislatures.) So far eight states have enacted these junior VRAs: California, Connecticut, Illinois, Minnesota, New York, Oregon, Virginia, and Washington. Michigan’s legislature narrowly failed to pass such a bill this year, » Read More
https://www.cato.org/blog/state-versions-federal-voting-rights-act-bring-new-problems