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18 Harv. Latino L. Rev. 99 (2015)
Vulnerability in Numbers: Racial Composition of the Electorate, Voter Suppression, and the Voting Rights Act

handle is hein.journals/hllr18 and id is 105 raw text is: VULNERABILITY IN NUMBERS: RACIAL COMPOSITION OF THE ELECTORATE, VOTER SUPPRESSION, AND THE VOTING RIGHTS ACT Ian Vandewalker & Keith Gunnar Bentele* ABSTRACT In Shelby County v. Holder, the Supreme Court rendered one of the most potent antidiscrimination provisions of American law a dead letter: the preclearance re- gime of the Voting Rights Act of 1965 (VRA). Shelby County held that the formula determining which jurisdictions are required to obtain federal approval for voting law changes was outdated and offensive to states' rights. The Court ignored ample evidence of discrimination in the covered jurisdictions, focusing instead on improve- ments in voter turnout and registration. We present new empirical evidence that the proposal and passage of restrictive voting laws, such as photo identification require- ments and reductions of early voting opportunities, are associated with racial fac- tors such as larger African American populations and increases in minority voter turnout. These results are consistent with the interpretation that restrictive voting laws have been pursued in order to suppress Democratic-leaning minority voters, and they are suggestive that racial discrimination is a contributing factor to this type of legislation. The increases in registration and turnout that Shelby County hailed as evidence that preclearance is no longer needed are actually risk factors for poten- tially discriminatory voting laws. We suggest opportunities for countering discrimi- nation after Shelby County. The evidence we present is relevant to litigation under remaining provisions of the VRA, especially the prohibition on voting laws with a discriminatory effect under Section 2. Finally, we suggest that our findings should inform the Congressional response to Shelby County: a new coverage formula should include the racial characteristics we identify as risk factors. TABLE OF CONTENTS INTRODUCTION .................................................. 100 I. SHELBY COUNTY V. HOLDER ............................. 103 A. Equal Sovereignty of the States ....................... 103 B. A Narrow Focus on Registration and Turnout ......... 107 II. DATA AND ANALYSIS .................................... 108 A. Independent and Control Variables ................... 109 B. Measuring Restrictive Voter Legislation ............... 115 * Ian Vandewalker serves as Counsel in the Democracy Program at the Brennan Center for Justice at New York University School of Law (employer provided for identification purposes only). He earned his J.D. cum laude from NYU School of Law and holds an M.A. from Indiana University and a B.A. from New College of Florida. Keith Gunnar Bentele is Assistant Professor of Sociology at University of Massachusetts Boston. He holds a Ph.D. from the University of Arizona as well as a B.A. from New College of Florida.

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