The Voting Rights Act and the "New and Improved" Intent Test: Old Wine in New Bottles

Since the Supreme Court injected the issue of intent into the voting rights arena in Mobile v. Bolden,1 there has been a long and persistent struggle to reverse that decision. In 1982, Congress thought it had put the question of the quantum and quality of proof required to establish a violation of section 2 of the Voting Rights Act to rest when Congress amended that section. However, the courts quickly began a rear guard action to undermine congressional efforts to eliminate the intent requirement as an element of a plaintiff's claim. Both the Supreme Court and the circuit courts have played various roles in the effort to re-assert the intent test in, albeit, a “new and improved” form. Despite Congress' best efforts, the intent test is back. The role of scholars and practitioners is to understand the new test and determine how to satisfy this most stringent requirement. In this article, the contours of the new test will be examined and the question of what proof is required to satisfy the test will be explored. Part II will discuss the Mobile decision and congressional efforts to eliminate the intent test from section 2. Part III will explore the several opinions in Thornburg where the question of the intent of Congress when it amended section 2 was discussed. Finally, in Part IV, the circuit court decisions, essentially adopting Justice O'Connor's opinion, will be analyzed to determine the contours of the new intent test and the elements of proof required to meet it. This article concludes that the courts “got it wrong” when they reintroduced the intent standard, and that Congress intended to banish intent as a requirement of a plaintiff's case. However, recognizing that practitioners must live with what is, and not what ought to be, the article theorizes that the new test is not as difficult to prove as the old intent test.