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Keywords

constitutional law; Voting Rights Act; constitutional colorblindness; voting rights law

Abstract

If friends and foes of section 2 of the Voting Rights Act of 1965 agree on one thing, it is the irrepressible conflict between section 2’s attention to race and constitutional colorblindness. They’re wrong. Rightly understood, section 2’s design is remarkably compatible with colorblind constitutionalism’s letter and spirit.

To show how, this Article first returns to section 2’s origins and the preexisting approach its text codifies. That approach had an underappreciated ethos: When intentional discrimination’s effects sufficiently distort a political system, an electoral rule’s results might impugn its unconstitutionality, even if the rule had been adopted without discriminatory purpose. Drawing next on a novel examination of media coverage, this Article shows that this ethos animated public understanding of the mischief section 2 aimed to correct. The upshot is a unique account of section 2’s design. Congress adopted a discriminatory-effect rule that targets disparate treatment of voters occurring on account of past or present intentional discrimination. That nestles section 2 within colorblind constitutionalism’s acceptance of race-conscious remedies for intentional race-conscious harms. And it undercuts charges that section 2 created a disparate-impact regime that permanently racializes politics.

But there is more. That disparate-treatment justification has shaped section 2’s doctrinal and practical function in ways congenial to worries about indefinite justifications for race-conscious remedies. The rules crafted to implement section 2 embrace an underappreciated remedial logic. Scholars have long claimed that section 2’s strictures inherently relax over time. Doctrine has helped make that claim a reality by tethering section 2’s activation to particularized electoral distortions flowing from intentional discrimination. The cases have thus kept section 2 focused on disparate treatment and facilitated its deactivation when such treatment ceases. And national trends in racially polarized voting and housing segregation bolster the point; section 2 keys on the empirical realities that dissipate not just in theory, but in fact.

The Article closes by applying this analysis to resolve section 2’s confrontation with colorblindness and offer a framework for better grasping its overall constitutionality and addressing persistent section 2 issues.

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