Joshua Sellers has posted this draft on SSRN (Howard Law Journal). Here is the abstract:
One of the more convoluted dilemmas in election law involves distinguishing government actions motivated by race from those motivated by partisanship. In this Essay, prepared for the Howard Law Journal’s 15th Annual Wiley Branton Symposium, I argue that the race or party dilemma is simply a variant of a dilemma that law has confronted before. It is a dilemma about the extent of law’s — and by extension, society’s — comprehension and definition of “institutional” or “systemic” discrimination.
In support of this claim, the Essay examines two doctrines in which the Supreme Court attended to institutional or systemic discrimination: the state action doctrine and the Civil Rights Act of 1964’s Title VII doctrine, as encapsulated in the Court’s 1971 decision, Griggs v. Duke Power Company. More precisely, it compares the assumptions and inferences about the nature of racial discrimination informing both the leading state action cases and Griggs, with those informing current election law doctrines in which the race or party distinction obtains.
Ultimately, the Essay argues that if the elimination of institutional or systemic discrimination is the goal, then the stark dichotomy between race and partisanship found in election law doctrines should be dispensed with.