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Hastings Constitutional Law Quarterly

Abstract

Since the United States Supreme Court struck down section 4(b) of the Voting Rights Act ("VRA") and effectively disabled its section 5 enforcement provision in Shelby County v. Holder, States across the country have passed and updated election laws with far less accountability than during the pre-Shelby era. Among the most controversial are "voter ID" laws, which require voters to present identification before casting a ballot. Prior to 2013, section 5 of the VRA had been used to challenge these laws in federal proceedings in Texas, Florida, South Carolina, and New Hampshire. The combined decisions of Shelby and Crawford v. Marion County Elections Board, however, forced challengers to voter ID laws to shift their litigation strategy to argue protections under section 2 of the VRA, where an uncertain standard has since led to inconsistent and problematic litigation results. Reports of vote denial and suppression in critical states during the 2016 presidential election make it imperative to articulate a new, clear, and workable standard for evaluating voter ID laws under section 2 of the VRA. This Note confronts this challenge by proposing a combination of the two-step test articulated by the Sixth Circuit in Ohio State Conference ofNAACP v. Husted, Jani Nelson's causal context analysis for introducing evidence of implicit bias, and Daniel Tokaji's third step allowing States to show their interests outweigh burdens on voting. This proposed judicial test would provide a workable standard offering both sides ample opportunity to prove their case while simultaneously protecting voters from suppression efforts.

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