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Abstract

The Supreme Court once stated that the right to vote is fundamental because it is preservative of all other rights. It struck down poll taxes and literacy tests, which were designed to stop Black Americans from voting. Congress enacted the Voting Rights Act (“VRA”) to prevent states from enacting discriminatory restrictions on voting, in part by requiring states with deep histories of racist policies to have changes in voting procedure approved first, called preclearance. In 2024, the VRA has been weakened by the loss of preclearance, and courts have softened on laws that make it harder to vote. In an era where politicians blame voter fraud if they lose, and the Court has begun to embrace the idea that any policy which considers race is unconstitutional, we seem to have lost the context of this area of law and history.

This Comment discusses the meaning of the word “colorblindness” and how it was divorced from its context, Justice Harlan’s dissent in Plessy v. Ferguson, and used by some to advocate for a constitution that can’t see race at all, even to remedy discrimination. It then surveys the history of restricting the right to vote in the United States, which is overwhelmingly a history of states trying to prevent Black voters and Black representation. While the days of slavery and Jim Crow laws seem distant, they are the context in which the right to vote was fought for. This Comment argues that an ideology of colorblindness, or ignoring race, is especially dangerous in the voting rights context, where there is a long history of states enacting intentionally discriminatory voting policy. Colorblindness weakens race-conscious laws that prevent covert discrimination such as the VRA, and it blinds lawmakers and courts to the disparate impact of seemingly neutral restrictions on voting, such as voter ID.

Further, this Comment urges courts and lawmakers not to adopt a colorblind ideology and argues that voter ID laws could be struck down by courts on constitutional grounds, like their poll-tax predecessors. Using Nebraska’s recently enacted voter ID law as an example, this Comment posits that Nebraska’s law requiring voters to show a specified form of identification would not survive intermediate or strict scrutiny because of its potential disparate impact on minority voters, the lack of valid justification for restricting a fundamental right, and the history of discriminatory restrictions on voting that precedes it.

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