New York University Public Law and Legal Theory Working Papers

Document Type



University of Alabama Law Review, Forthcoming


The fiftieth anniversary of the Voting Rights Act comes at a difficult juncture. The Supreme Court’s decision in Shelby County dismantled the core preclearance provisions of what had been the most successful civil rights law in American history. At the same time, the right to cast a ballot free of unnecessary legal encumbrances is more contested than it has been in generations. Yet, the story is more complex. The landscape of voter discrimination today bears little resemblance to the formalized Jim Crow barriers to the black franchise. Even before Shelby County, the Voting Rights Act struggled to keep up with the new voting challenges, which have evolved from exclusively Southern obstacles defined by race to nationwide electoral modifications with at best limited evidence of direct racial motivation. The narrow geographic confines of Section 5 of the Voting Rights Act were largely supplanted by other legal protections of the right to vote, well before Shelby County.

This Article turns to other legal tools that have been invoked since 1965 to address voting claims outside the purview of Section 5. The claim is that more generalized protection of the franchise can better respond to the more fact-laden challenges presented by more contemporary voting rights claims. The Article draws on personal experiences with four voting cases that rely on tools ranging from Section 2 of the Voting Rights Act to the Constitution to the common law to address claims that fall outside the domain of Section 5. These cases illustrate the way in which a more general framework for voting rights protection can be used to tackle electoral schemes that were neither subject to Section 5’s technical scrutiny, nor were Southern, racially specific, or even institutional in nature.

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