“Dignity and Discriminatory Intent: What the Marriage Equality Cases Tell Us About Voter ID”

Ellen Katz has posted this draft on SSRN (forthcoming University of Chicago Legal Forum).  here is the abstract:

Two years after Shelby County v. Holder and United States v. Windsor, a good deal of litigation has addressed the legality of electoral restrictions like voter ID and bans on same-sex marriage. This Article examines the relationship between these two lines of cases. It argues that the greater deference accorded to state action in the voting cases is not simply the product of the familiar distinction between discriminatory intent and effect, but instead captures an emerging and troubling distinction within the category of intentional discrimination itself. This distinction separates conduct that targets members of a minority group for disfavored treatment based on animus from conduct that targets them for more particularized, instrumental reasons.

The Article posits that this distinction is not only unwarranted, but that it also obscures a critical observation repeatedly made in the marriage cases that should have application in the voting disputes but has yet to find expression. Many of the voting restrictions challenged post-Shelby County might be understood to inflict a dignitary harm that resembles the dignitary injury same-sex marriage bans are now widely understood to inflict. The Article offers some preliminary thoughts on the contours of this injury and the challenges its recognition might present.

Highly recommended!

 

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