Duke Law Journal

Dog Whistles and Discriminatory Intent: Proving Intent Through Campaign Speech in Voting Rights Litigation

Abstract

Politicians are increasingly employing dog whistles in campaign speech to appeal to a divided electorate. Simultaneously, states continue to pass legislation restricting minority access to the ballot box. Litigants attempting to challenge new vote denial laws are left with only one tool—Section 3 of the Voting Rights Act—which requires the difficult task of demonstrating that the jurisdiction violated the Fourteenth Amendment. Despite the frequency of dog whistles, courts have declined to use campaign rhetoric as evidence of discriminatory intent in Fourteenth Amendment challenges.

This Note argues that, to ease the nearly insurmountable burden of proving discriminatory intent in voting rights challenges, courts should consider dog whistles in campaign speech as evidence of discriminatory intent. It is particularly important for voters to prove discriminatory intent in voting rights cases because they face the unique difficulty of distinguishing between closely aligned racial-discrimination motivations and political-party motivations; Section 3 of the VRA allows for preclearance systems once discriminatory intent is proven; and broader, less tailored remedies become available when litigants can successfully prove intent.

The right to vote is a right “preservative of [all] other basic civil and political rights.” Considering dog whistles as evidence of discriminatory intent gives litigants a necessary tool to protect this fundamental right.