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Hastings Law Journal

Abstract

Recent presidential and gubernatorial elections have exposed serious flaws in the process by which American voters participate in the democratic franchise. Studies have shown that African- Americans who use inferior punch card technology are more likely than non-African-Americans to be disenfranchised because of unintentional errors in the use of voting equipment. Following the disputed 2000 presidential election, several civil rights and civil liberties organizations used section 2 of the Voting Rights Act to challenge state voting technology, arguing that punch card equipment has an adverse impact on racial minorities.

This Article examines the empirical evidence on voting technology, residual votes, and the disenfranchisement of African- Americans, as well as the difficulties of using this information in legal challenges. The authors then develop a legal framework for pursuing voting technology cases under section 2 of the Voting Rights Act. It explores two mutually exclusive approaches to the causation requirement-the dispositive force test and the external factor test-and concludes that the latter is more consistent with Congress's goals for section 2. The authors then examine the expert evidence submitted by both sides in several recent voting technology cases, including Stewart v. Blackwell. The Article concludes by offering several justifications for why the racial gap in lost votes should be actionable under section 2 of the Voting Rights Act and warrant an active judicial role.

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