James Sample has posted this draft on SSRN (Houston Law Review). Here is the abstract:
It took nearly 100 years after the United States gained its independence for African American men to secure the right to vote, and almost 150 years for African American women. A right perceived—though not de facto honored—as fundamental for all Americans today was fought for in a war less than two centuries ago, costing 620,000 lives. The country quite literally divided over the idea that African Americans should be afforded basic human rights. Today, resistance to the franchise—to what the mythology of America “stands for”—is not remotely erased, but rather, newly emboldened, even if it masquerades under more obfuscating terminology.
Acknowledgement of contemporary racism in the motivation and passage of voting legislation remains highly controversial. The current U.S. Supreme Court majority interprets gradual increases in voter registration as conclusive evidence that historical discrimination in voting has been eradicated. Ostensible judicial minimalists in the Court majority have effectively usurped
congressional fact-finding as to the ongoing necessity of antidiscriminatory measures.
Most provocatively, the late Justice Antonin Scalia characterized the Voting Rights Act not as a buffer mitigating discrimination, but rather, as a “racial entitlement.” Pause for a moment to consider the true meaning of the phrase—were the historically disenfranchised gaining something extra? Did their votes count doubly? Or was the “entitlement” mere facilitation of equality?
The as yet unfolding consequences of the Court embracing the “entitlement” frame? An onslaught of restrictive ID requirements, elimination of early voting, elimination of drop boxes, hyperaggressive and inaccurate purging of voter registration rolls, measures empowering state legislatures to override vote tallies, and the closing of polling locations.
Voting Rights or Voting Entitlements analyzes how a perfect storm of party-before-country priorities and politics, ongoing systemic racism, and opportunistic judicial decision aggression has produced a perilous moment for American democracy and for the legal principle of one-person, one-vote.
Looking forward to reading this!