Economic Precarity, Race, and Voting Structures


This article explores the evolution of an underlying utilitarian conception of the right to vote in the federal Constitution, framed as it is expressed in Crawford and Shelby County, and the impact of that in subsequent lower court decisions. I have argued in the past that this aspect of the recalibration of the right to vote represents deference to state priorities regarding the federal constitutional enforcement of the right, a balancing that effectively prioritizes state interests in administration over voter access, thus leading to excessive and cumulative regulation. This deference is "utilitarian" in the sense that this is premised upon the vindication of larger state interests that would effectively serve the good of the majority-indeed, the greatest number--of voting citizens even if there is a marginal expense to a relative few. This would presumably cause courts considering this kind of problem-of indirect structural disenfranchisement due to policy concerns outside of the election law context-to defer to the state's interest concerning the diminished availability of opportunities for obtaining the credentials necessary to vote in a "strict" voter identification state due to the more pressing concern of financial exigency.


Voter Rights

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Document Type


Publication Information

103 Kentucky Law Journal 607 (2016)


COinS Atiba R. Ellis Faculty Bio