71 Am. U. L. Rev. 2319 (2022).
The health of American democracy has literally been challenged. The global pandemic has powerfully exposed a long-standing truth: electoral policies that are frequently referred to as “convenience voting” are really a mode of “survival voting” for millions of Americans. As our data show, racial minorities are overrepresented among voters whose health is most vulnerable, and politicians have leveraged these health disparities to subordinate the political voice of racial minorities. To date, data about racial disparities in health has played a very limited role in assessing voting rights. A new health lens on the racial impacts of voting rules would beneficially inform—and perhaps even fundamentally alter—how we address several common voting rights issues. A new focus on the disparate health effects of voting rules, grounded in the kind of solid empirical evidence we provide, could reinvigorate the Voting Rights Act (VRA) by providing new avenues for assessing voting rights, for litigating and judging voter suppression claims under section 2, and even informing a new coverage formula in a modified section 5. This evidence arrives at a critical juncture for the VRA which has been stripped of much of its bite by the Supreme Court and is currently being debated in Congress. The clear and compelling story told by our data are a clarion call to legislators, courts, and litigators to reconceptualize and strengthen voting rights by accounting for the barriers that health disparities pose to minority access to the ballot.
* Associate Dean for Faculty Affairs and Research, Associate Professor of Law, University of Colorado, Boulder. Visiting Professor of Law, 2022, Yale Law School.
** Professor of Law, Brigham Young University.
† Professor of Law, Brigham Young University.
‡ Associate Professor, Department of Health Science, Brigham Young University.
§ Associate Professor, Department of Statistics, Brigham Young University.