An increasingly central and recurring issue in voting-rights litigation today is how courts should evaluate recent changes to various laws regulating the voting system. How much should the prior status quo matter in this assessment? This can present paradoxes for courts: how should courts assess the legality of cutbacks in days of early voting, for example, when some states do not permit early voting at all?
This issue arises in litigation under Section 2 of the Voting Rights Act and right-to-vote litigation under the Constitution. I wanted to call attention to two good academic articles that have appeared recently on this increasingly central issue. Both synthesize the existing caselaw, then provide analysis on how they believe courts ought to handle the issue.
Ellen Katz address the issue in the context of VRA Section 2 litigation in Section 2 After Section 5: Voting Rights and the Race to the Bottom. Derek Muller address the issue more broadly, under both the Constitution and the VRA, in The Democracy Ratchet. The effort to think through this issue systematically is important.