Response  |  Volume 160

What Kind of Discrimination Does the Voting Rights Act Target?

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Posted on Apr. 25, 2012

Response - What Kind of Discrimination Does the Voting Rights Act Target?








In Volume 160 of the University of Pennsylvania Law Review, I present an interpretive reconstruction of the Voting Rights Act's (VRA) core provision of nationwide application, Section 2. My account responds to longstanding critiques of Section 2 as utterly opaque, likely to worsen racial conflict, and probably unconstitutional (because inadequately tethered to the prevention or remediation of actual constitutional violations).

My paper builds upon a shared premise of liberal and conservative jurists: that the Voting Rights Act was meant “to hasten the waning of racism in American politics.” Professor Guy‐Uriel Charles responds, “[T]his move is question‐begging: what is racism in American politics, and how will we know whether it is waning?” I agree with Professor Charles that the apparent consensus against racial discrimination in America is somewhat illusory, resting on divergent understandings of what constitutes discrimination on the basis of race. But I disagree with the thrust of Professor Charles's Response, namely, that reading Section 2 to target state action that discriminates on the basis of race (1) does little to help lawyers and judges applying the statute, given the lack of societal consensus about the meaning of discrimination, and (2) is essentially pointless, because the Fourteenth and Fifteenth Amendments already prohibit race‐discriminatory state action with respect to elections.


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