Janai Nelson’s latest article, The Causal Context of Disparate Vote Denial, has just been accepted for publication in the Boston College Law Review. Janai’s article is not yet available on SSRN, but here is the abstract:
For nearly 50 years, the Voting Rights Act of 1965 and its amendments have remedied racial discrimination in the electoral process with unparalleled muscularity. However, modern vote denial practices that have a disparate impact on minority political participation increasingly fall outside the Act’s ambit. As judicial tolerance of disparate impact claims has waned in other areas of law, the contours of Section 2, arguably the Act’s most powerful provision, have also narrowed to fit the shifting landscape. Section 2’s “on account of race” standard to determine discrimination in voting has evolved from one of quasi-intent determined by a totality of the circumstances, to a short-lived intent requirement, followed by an enhanced disparate impact analysis, culminating in a more recent standard that simulates proximate cause. This Article proposes a test for Section 2 vote denial claims that comports with the narrowing construction of disparate impact claims and reclaims the contextual analysis of vote denial that the Voting Rights Act contemplates. The “causal context” test proposed here anchors Section 2 vote denial claims to explicit or implicit bias without requiring proof of intent and identifies circumstances internal and external to elections that give rise to disparate vote denial. This approach is historically consistent with the Act’s totality of the circumstances test, cognizant of courts’ increasing demands for proof of a causal link within disparate impact jurisprudence, and informed by studies of implicit bias in the law. The proposed causal context analysis is also consonant with recent federal proceedings evaluating the racial disparate impact of voter ID laws in Texas, Florida, New Hampshire, and Virginia.