Editor's Note: The full article originally appeared in the Indiana Law Journal

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 subordination 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 discriminatory 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.

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 burdens 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. This evolution is analogous to the emergence of a rule of reason to provide nuance to the overly rigid antitrust laws under the Sherman Act.

Lessons from Antitrust Law

The Voting Rights Act had a clear focus: discriminatory devices in southern voter-eligibility rules. Similarly, the Sherman Act also had a target – breaking up the massive trusts that emerged during the industrial transformation of the United States following the Civil War. Its language admitted of no nuance, banning “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade.” 

But the reach and power of the Sherman Act also led to the need for judicial modification. By its terms, any contract that restrained trade fell under its prohibition. Consequently, Supreme Court cases sought to restrain the potential statutory overreach risked by a literal account of the Sherman Act. For example, in both Standard Oil Co. v United States and United States v. American Tobacco Co., the Court began to speak of what the latter would term a “reasonable construction” of the statute.

A second development in antitrust law is also instructive. Like prohibitions on overt racial discrimination, an actual conspiracy in restraint of trade remains the heart of the antitrust concern. As market actors become more sophisticated and better counseled, the days of transparent coordination recede, much the same way that state actors are less and less likely to use expressions of overt racial animosity in making official decisions. In order to ferret out impermissible anticompetitive behavior, antitrust law developed what are termed “plus factors” to differentiate suspicious business decisions from strategic managerial judgments that may be either the product of actual conspiratorial activity or just a product of self-interest. 

These developments in antitrust law offer two take-aways for voting rights. First is the use of evidentiary rules to differentiate the permissible from the impermissible. As antitrust law progressed from the clear cases of major trusts into the fine-grained distinctions in conduct in complex markets, a broad-gauged set of fixed rules yielded to contextual understandings applied as standards. But standards always admit of imprecision. The appeal of antitrust law’s plus-factor approach allows the existence of prohibited conduct to be proven inferentially – even without direct evidence of conspiratorial activity. Second, the balancing inquiry deployed in antitrust law offers flexibility by focusing on context rather than categorical prohibitions. 

Antitrust concerned itself with consumer welfare. The question becomes whether a corresponding notion of “voter welfare” can emerge – specifically through a set of contextual factors, plus factors if one will, that can guide a principled judicial inquiry into impermissible restrictions on the franchise. One can already find the emergence of a set of practices in voting rights law that looks like the nascent steps toward the emergence of a voting-rights rule of reason. 

Read the full article here.