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Abstract

"Every man takes the arm of the law for his protections as more effectual than his own, and therefore every man has an equal right in the formation of the government and of the laws by which he is to be governed and judged "' When Thomas Paine wrote these words over two hundred years ago, he captured the essence of American democracy. Having a voice in government means more than merely casting a ballot. Instead, the basic right of all qualified citizens to grant or withhold their consent mandates 'fair and effective representation ": a right to elect representatives and participate in the decision making processes of government.

At the same time, the Founding Fathers recognized that voting itself posed a danger to a representative democracy. Majority factions were particularly troubling because the principle of majority rule empowered them to silence the voices of those in the minority. Consequently, the constitutional Framers installed the federal courts as 'Judicial referees" that would protect minorities from the tyranny of the majority. When it enacted the Voting Rights Act of 1965, Congress also envisioned that the judiciary would play an active role in protecting the right of minorities to give or withhold their consent.

Yet, courts have opted for a more passive approach that directly undermines the voices of minorities in government. Out of "respect "for the democratic process, the judiciary has protected consent only to the extent that it can do so in a "principled" manner that does not overturn the will of the majority. As a result, minority voters no longer must raise their voices against the tyranny of the majority, but the tyranny of the judiciary. This Article discusses the impact of the judiciary's ill-advised approach to claims brought under section two of the Voting Rights Act, and proposes an alternative approach more consistent with the. democratic theories embodied in the Constitution and section two.

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