“A New Approach to Voter ID Challenges: Section 2 of the Voting Rights Act”

Kathleen Stoughton, instrumental in organizing the recent, excellent GW election law symposium, has written this student note for the GW Law Review. Here is the abstract:

In response to growing concerns about the integrity of the electoral process, state legislatures across the country have adopted voter ID laws, which require voters to present a qualifying form of identification before casting a ballot in person. By late 2012, nine states had passed strict voter ID laws requiring those voting in person to present a valid, government-issued photo ID. These laws disproportionately disenfranchise minority voters, who are much more likely than their white counterparts to lack a valid ID.

There are no constitutional remedies available, as the Supreme Court has upheld voter ID laws against facial constitutional challenges, and as-applied constitutional challenges are not a feasible method of challenging laws with such a widespread effect. Although section 5 of the Voting Rights Act of 1965 can keep discriminatory voter ID laws from being enacted in a limited number of jurisdictions, the Supreme Court has expressed skepticism about the provision’s continued constitutionality. This Note argues that a remedy can be found in section 2 of the Voting Rights Act: plaintiffs can challenge strict voter ID laws by showing that they so disproportionately affect minority voters that they dilute the vote of the minority group as a whole, effectively abridging the right to vote on account of race or color in violation of the Voting Rights Act.

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