My latest article, recently published in the Alabama Law Review. Here’s the abstract:

Does the Constitution protect individual voters’ freedom to cast their votes for racially discriminatory reasons? Or does it prohibit racist voting that denies a minority group the opportunity to elect its candidate of choice? The surprising answer is that it does both. On an individual level, voters are free to cast their votes for their preferred candidates for whatever reasons they choose, including racist ones. On a systemic level, however, the aggregation of racist votes violates the Constitution where it is sufficiently prevalent to affect election results.

The practical importance of recognizing racist voting as a constitutional violation is to fortify Section 2 of the Voting Rights Act of 1965 (VRA). The constitutional status of Section 2 remains an open question after the Supreme Court’s two most recent redistricting decisions. In Allen v. Milligan, the Court affirmed the constitutionality of Section 2, while leaving the door open to a future challenge based on its unlimited temporal scope. In Alexander v. South Carolina State Conference of the NAACP, the Court raised the bar for showing that intentional race discrimination by the legislature invalidates a redistricting plan. These two cases highlight the urgency of defining with precision the “constitutional wrongs” that Section 2 addresses.

There is no doubt that intentional race discrimination by legislators is a constitutional wrong that Congress has the power to remedy through appropriate legislation. This Article argues that intentional race discrimination by voters is also a constitutional wrong that Congress may address through legislation. Part I considers the extent to which intentional race discrimination influences vote choice—in other words, whether racist voting is a thing. Part II considers whether racist voting is constitutionally protected, concluding that the combination of the secret ballot and constitutional limits on compelled disclosure effectively protects vote choices from judicial scrutiny. Part III argues that racist voting may nevertheless violate the Constitution where it is sufficiently prevalent to affect election results and that Section 2 of the VRA should be understood as a remedy for this constitutional wrong.

More on this and other subjects in a great conversation with my former colleagues at Ohio State, on their Law & Democracy Podcast.