Andy Grewal (Iowa), forthcoming in the Fordham Law Voting Rights and Democracy Forum, Discriminatory Intent Claims Under Section 2 of the Voting Rights Act. Here is the abstract:

This Article addresses a new controversy over whether Section 2 of the Voting Rights Act prohibits laws that exhibit “only” discriminatory intent, in the absence of discriminatory results. Lower courts have long found that Section 2 prohibits intentional discrimination. And the Department of Justice has rested its entire ongoing case against Georgia’s controversial voting bill on an intent approach. But the Eleventh Circuit, after offering different positions over the years, recently decided that Section 2 does not reach intentional discrimination.

This Article shows that Section 2, as it currently exists, does not reach intentional discrimination. However, this exclusion may have been unintended by Congress. And the exclusion leads to severe anomalies and inequities. This Article thus urges Congress to codify an intent test and offers principles for Congress to follow in codification.