Janai Nelson has posted this draft on SSRN (forhcoming, Boston College Law Review). Here is the abstract:
For nearly 50 years, the Voting Rights Act of 1965 and its amendments have remedied racial discrimination in the electoral process with unparalleled muscularity. However, modern vote denial practices that have a disparate impact on minority political participation increasingly fall outside the Act‘s ambit. As judicial tolerance of disparate impact claims has waned in other areas of law, the contours of Section 2, arguably the Act‘s most powerful provision, have also narrowed to fit the shifting landscape. Section 2‘s “on account of race” standard to determine discrimination in voting has evolved from one of quasi-intent determined by a totality of the circumstances, to a short-lived intent requirement, followed by an enhanced disparate impact analysis, culminating in a more recent standard that simulates proximate cause. This Article proposes a test for Section 2 vote denial claims that comports with the narrowing construction of disparate impact claims and reclaims the robust contextual analysis that the Voting Rights Act contemplates. The “causal context” test proposed here is anchored to the “core values” of Section 2 mined from the legislative history of the Act, particularly the “Senate factors.” The causal context analysis relies on proof of explicit or implicit bias, as well as circumstances internal and external to elections that give rise to disparate vote denial, without requiring proof of intent. This approach is historically consistent with the Act‘s totality of the circumstances test and cognizant of courts‘ increasing demands for proof of a causal link within disparate impact jurisprudence. Moreover, the proposed causal context analysis is consonant with recent federal proceedings evaluating the racially disparate impact of voter ID laws, voter purges, early voting restrictions, and other forms of modern vote denial.