Washington Law Review

Comment

Let Us Not Be Intimidated: Past and Present Applications of Section 11(b) of The Voting Rights Act

March 01, 2022 | 97 Wash. L. Rev. 301

Abstract: As John Lewis said, “[the] vote is precious. Almost sacred. It is the most powerful non-violent tool we have to create a more perfect union.” The Voting Rights Act (VRA), likewise, is a powerful tool. This Comment seeks to empower voters and embolden their advocates to better use that tool with an improved understanding of its little-known protection against voter intimidation, section 11(b).

Although the term “voter intimidation” may connote armed confrontations at polling places, some forms of intimidation are much more subtle and insidious—dissuading voters from heading to the polls on election day rather than confronting them outright when they arrive. For example, thousands of Black and Brown voters were targeted in 2020 with misleading robocalls stating that the government used vote-by-mail records to track down old warrants, that credit card companies used vote-by-mail records to collect outstanding debts, and that the Centers for Disease Control (CDC) used vote-by-mail records to track people for mandatory COVID-19 vaccinations.

This Comment argues that section 11(b) of the Voting Rights Act has been underutilized since it was enacted in 1965. Section 11(b), which was intended to protect Black voters from racialized intimidation, provides a civil cause of action against state or private actors who “intimidate, threaten, or coerce any person for voting or attempting to vote.” There are few published decisions interpreting section 11(b), and executive enforcement of this provision is insufficient.

Because voters of color are typical targets of intimidating conduct, a more robust enforcement of section 11(b) is essential to promoting equitable access to civic participation. This Comment therefore begins with an exploration of racialized voter intimidation in the United States. It goes on to investigate why section 11(b) is underdeveloped, and finally, it proposes that litigants should be aware of special considerations if they choose to bring section 11(b) actions.

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