[EL] Vote Suppression and the State Action Requirement

[Scarberry, Mark]

What is the role of the state action requirement in constitutional challenges to private efforts to "suppress" voting? (I put "suppress" in quotes not to suggest that vote suppression isn't a serious matter but because list members may disagree about what constitutes vote suppression.)

Neither the 14th nor 15th Amendments are violated by purely private conduct, though I think Akhil Amar has suggested that the 14th Amendment's citizenship provisions could create rights applicable directly against non-state actors. Political party actions can be treated in some cases as state action under the government function doctrine (as in the White Primary cases), but where is the line?

I know that Congress may prohibit private action that would interfere with voting (under the badges and incidents of slavery interpretation of section 2 of the 13th Amendment, if I remember correctly, and perhaps, though I don't know of any cases, under Art. I, sec. 4, cl. 1).  My question has to do with direct constitutional protections against private interference with the right to vote.

Mark S. Scarberry
Pepperdine Univ. School of Law
Malibu, CA 90263
(310)506-4667

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Thursday, December 06, 2012 9:53 AM
To: law-election at UCI.edu
Subject: [EL] ELB News and Commentary 12/6/12

...
"'Voter Suppression,' Debunked"<http://electionlawblog.org/?p=45157>
Posted on December 6, 2012 9:49 am<http://electionlawblog.org/?p=45157> by Rick Hasen<http://electionlawblog.org/?author=3>

James Taranto WSJ post.<http://online.wsj.com/article/SB10001424127887324640104578161380952380820.html?mod=googlenews_wsj>

One response to Taranto's point appears in Janai Nelson's excellent draft article <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2180968> on SSRN, in which she writes: "Despite suggestions that voter suppression tactics can trigger a 'backlash' increase in minority voter turnout, these tactics nonetheless violate the VRA's core principle-to ensure that the race of a voter has no bearing on her ability to vote. Moreover, the "backlash effect" does not negate the increased burden placed on minorities' right to vote even if, ultimately and intermittently, minority voters can bear it and win."
[cid:image001.png at 01CDD39A.AB539BA0]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D45157&title=%E2%80%9C%E2%80%98Voter%20Suppression%2C%E2%80%99%20Debunked%E2%80%9D&description=>
Posted in The Voting Wars<http://electionlawblog.org/?cat=60> | Comments Off

...


--

Rick Hasen

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UC Irvine School of Law

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