Indiana Law Journal

Document Type


Publication Date

Winter 2016

Publication Citation

92 Indiana Law Journal 299 (2016)


For the first time in at least a generation, the central focus of voting rights law has returned to the issue of eligibility to cast a ballot and the act of voting itself. Unlike in prior generations, the fights over voting are centrally part of a partisan battle for electoral supremacy and are not organized around perpetuating the historic sub-ordination of minority populations—whatever the localized impact on minorities that the new voting rules may trigger. In the partisan environment, courts face claims of exclusion that only imperfectly map onto constitutional prohibitions of discrimina-tory intent or statutory protections of minority voting opportunity. Although only some of these challenges arise in jurisdictions that were formerly covered by Section 5 of the Voting Rights Act, the Supreme Court’s ruling in Shelby County further compels a new legal approach to these cases.

This Article begins with the observation that, at least thus far, courts have been remarkably sympathetic to these new claims of voter exclusion, even without precise doctrinal categories for assessing them. Courts have fashioned parallel lines of case authority under the Constitution and the Voting Rights Act to shift evidentiary bur-dens to defendants to justify the need for election law overhaul shown to have an impact on the availability of the franchise. Voting rights law is moving from a rigid per se rule against certain established practices to a contextual assessment of the reason for the challenged practices. The Article presents this evolution as analogous to the emergence of a rule of reason to provide nuance to the overly rigid antitrust laws under the Sherman Act. Any such contextual approach needs an animating principle to guide a flexible judicial standard. In the antitrust context, that was the idea of consumer welfare. The question in the voting rights context is whether a corresponding notion of voter welfare can emerge.