Hastings Constitutional Law Quarterly


In 2012, the state of Texas attempted to require residents to present photo identification when casting a ballot. The United States Department of Justice objected to the implementation of this law under Section 5 of the Voting Rights Act because data showed that this law would disproportionately impact Hispanic voters in Texas. Data revealed that Hispanic voters were 46.5% more likely than non-Hispanic voters to lack the identification that would be required to vote. Also, the data showed that Hispanic voters were more likely than non-Hispanic voters to encounter barriers when attempting to get the proper documentation, including disproportionately lacking access to a vehicle. Only hours after the Supreme Court expressly struck down Section 4 (and indirectly Section 5) of the Voting Rights Act in Shelby County v. Holder, Texas officials implemented the same restrictive photo identification law.

Despite the Court's ruling in Shelby County, Section 2 remains an important tool to fight voter suppression tactics. However, important changes are needed in order for Section 2 to have the same, or comparable, power that Section 4(b) and Section 5 once had. Recognizing that changes to the Voting Rights Act are difficult, and inevitably political, this Note proposes several ways to strengthen Section 2 that would be less controversial and would likely withstand constitutional challenges. First, this Note proposes that a Gingles factor should be added to consider the timing of the proposed change in the totality of the circumstances test for discriminatory effects. Second, this Note proposes that the compactness condition for success under the totality of the circumstances test for discriminatory effects should include and weigh a cultural compactness evaluation more than geographical compactness. Third, this Note proposes that distinct ethnic and language groups should be permitted to aggregate under the politically cohesive condition for success, even though this would require significant data-gathering. Finally, this Note advocates for cumulative voting remedies to Section 2 violations. These changes would significantly increase the strength of Section 2 to fight voter suppression in the absence of Section 4(b) and effectively Section 5 because these changes do not require significant Congressional action, unlike creating a new Section 4(b) formula. Moreover, these improvements would provide better tools for marginalized voters to challenge Section 2 violations.