What Will the Life of Riley v. Kennedy Mean for Section 5 of the Voting Rights Act?

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Opt-Out Voting

This article proposes a new system of casting ballots at elections: opt-out voting. Opt-out voting would change the default rule for voting. Currently most registered voters go to a polling place to select a candidate. In contrast, opt-out voting would randomly pre-select a candidate for each registered voter and then allow the registered voter to switch the ballot to his or her preferred candidate. This article theorizes that switching to opt-out voting could lead to an increase in voter turnout, especially in local elections. This article argues that increasing participation, particularly on the local level, would be a positive change because it would make the voting electorate more representative of the population as a whole

Judicial Enforcement of a Grand Election Bargain

This Article seeks to combine these strains of the literature to argue for a world where, at the very least, a state's adoption of a strict photo identification law, such as Indiana's photo identification law, would result in that state's advance registration requirement being declared unconstitutional by either the federal or state judiciary. In arguing for this result, this Article endorses Professor Tokaji's grand bargain as a matter of policy, but remains skeptical that such a grand bargain could ultimately be forged in Congress (or even at the state legislative level). This Article also sympathizes with those commentators who desire the judiciary to enjoin advance voter registration requirements, but views very broad judicial intervention as unlikely. Instead, this Article advocates for a more limited judicial role that might ultimately serve as a way station to ultimately achieving a system of election administration that universally embraces Election Day registration

What Has Twenty-Five Years of Racial Gerrymandering Doctrine Achieved?

In 1993, Shaw v. Reno created a doctrine of racial gerrymandering that has now been in existence for twenty-five years. This Article examines the doctrine’s impact over that time—whether it has achieved the goals the Court set out for the doctrine in Shaw and whether it has had other consequences. This Article examines the doctrine’s impact through the lens of the place where the doctrine first took root and has been most heavily litigated over the last twenty-five years—North Carolina’s congressional districts. This Article also draws upon the existing empirical literature in its assessment of the doctrine’s impact. In so doing, this Article represents the first comprehensive assessment of the doctrine. Ultimately, the Article concludes that while more research could and should be done in this realm, racial gerrymandering doctrine does not appear to have achieved the goals the Court set out for it. In addition, the doctrine has likely had little additional impact other than to make districts more compact and cost state governments money for litigation and compliance. For these reasons, the Article concludes that the doctrine should be abandoned absent additional research documenting a systematically meaningful positive impact on American democracy

Rethinking Section 2 Vote Denial

It has now been more than 35 years since passage of the Section 2 results standard, and how that standard applies to vote denial claims (e.g., claims involving voter identification) remains extremely muddled. The Supreme Court has never ruled on a vote denial claim in the context of the Section 2 results standard, and lower courts have struggled to develop a workable framework. Yet it is now more imperative than ever to establish a workable framework because Section 2 vote denial claims have become more prevalent in the wake of the Court's 2013 ruling in Shelby County v. Holder. This Article proposes a judicially- administrable framework for applying the Section 2 results standard to claims of vote deni- al. In short, when applying Section 2 to such claims, a court should balance the government interest in the election law against the harm to minority voters. If the government interest outweighs the harm, the law should be upheld; however, if the harm outweighs the govern- ment interest, the law should be struck down. Importantly, when doing so, courts should generally only accept two justifications from the government-increasing the number of ballots cast and increasing the accuracy of elections. On the flip side, when assessing harm to minority voters, courts should almost exclusively focus on actual disfranchisement of minority voters. In developing this framework, this Article discusses the history of the adop- tion of the Section 2 results standard and demonstrates how the above framework adequate- ly represents the compromise forged by liberals and conservatives in adopting that stand- ard. It also details why the framework represents something better than what currently exists and tackles potential objections to the proposal