The Elephant in the Room: Intentional Voter Suppression

• In Event: Restoration and Suppression: The Contemporary Frontiers of Voting Rights

Abstract

Recent election-related decisions of the U.S. Supreme Court represent a culmination of two mutually reinforcing trends: the Court’s deepening ambivalence in matters of voting rights, and a successful propaganda campaign—driven by politically motivated advocates—to persuade legislators and the public that rampant voter fraud demands suppressive voting restrictions. Together these phenomena have cleared the way for jurisdictions to ratchet up bureaucratic barriers to voting. It didn’t have to be this way. For half a century, the Court has recognized a constitutional right to vote. Yet instead of allowing this doctrine to develop in a manner that would help to directly counteract the scourge of intentional voter suppression, the Supreme Court has remained aloof; its voting-rights jurisprudence effectively ignores the phenomenon. In response, this Article sketches a claim that precedent might allow, if only the Court were willing to reconsider its trajectory and acknowledge the reality and constitutional implications of intentional voter suppression. More specifically, we turn to the neglected Equal Protection framework developed by the Supreme Court in the voting-rights context to argue that a state acts unconstitutionally when it acts with the intent of making it less likely that an eligible voter’s ballot will be cast or counted. If accepted, this straightforward principle would require judicial scrutiny of election practices to move beyond talking points, to allow genuine adversarial testing of states’ justifications for restrictive measures.

Author

• Lisa Marshall Manheim, University of Washington