Three New Voting Rights Papers
I've posted three new working papers on SSRN, all of which deal with the Voting Rights Act:

The New Vote Denial: Where Election Reform Meets the Voting Rights Act will be published this spring in the South Carolina Law Review. It considers election practices challenged under Section 2 of the Voting Rights Act, on the ground that they result in the disproportionate denial of racial minorities' votes. Examples of practices challenged on this ground in recent years include felon disenfranchisement laws, unreliable voting equipment, and voter identification requirements. After discussing the Section 2 litigation over these practices, the paper proposes a disparate-impact test for evaluating such claims, drawing on Title VII of the Civil Rights Act.

If It's Broke, Fix It: Improving Voting Rights Act Preclearance will also be published this spring, in the Howard Law Journal. This paper examines claims of partisanship in the U.S. Department of Justice's administration of its preclearance power under Section 5 of the Voting Rights Act. These claims have recently come to the fore, in the wake of the Justice Department's controversial decisions to preclear Texas' 2003 re-redistricting plan and Georgia's 2005 voter ID law. The paper concludes that there is a serious risk of partisan manipulation in the current preclearance processes, and proposes a revised process that would diminish that risk.

The Story of Shaw v. Reno: Representation and Raceblindness is a chapter in the forthcoming Race Law Stories book to be published by Foundation Press, probably in 2007. The chapter puts the Shaw cases in the context of North Carolina's history of excluding African Americans from the political process, as well as the efforts of the Justice Department to increase minority representation through enforcement of Section 5 of the Voting Rights Act in the 1990s. Drawing on Justice Blackmun's papers, the chapter discusses the Supreme Court's internal deliberations over the first Shaw case. It then considers the still-unresolved tension between the raceblindness principle and goal of increasing minority representation, evident in Shaw and the racial gerrymandering decisions that have followed.

I've created links to the papers on the right-hand side of the blog. Comments on any of these three papers would be welcome, but I'd be especially grateful for thoughts on the Shaw book chapter. While the first two papers are already well into the editing process at law reviews, the last one is at a stage where I can more easily incorporate suggestions. - posted by Dan Tokaji @ 9:40 PM