What of congressional power over voting?

February 12, 2013

This is part of the Reuters series on the future of the Voting Rights Act’s Section 5, which the Supreme Court may strike down this year. You can read other pieces in the series here.

If the Supreme Court strikes down Section 5 of the Voting Rights Act in Shelby County v. Holder, the focus will turn to Congress and the question of what legislation it should enact in place of Section 5. An equally compelling question is what will happen to the scope of congressional authority over elections.

In City of Boerne v. Flores (1997), the court identified the Voting Rights Act as the ideal piece of remedial legislation, perfectly tailored to address the harm of voting discrimination and therefore an “appropriate” use of congressional authority. The court made this determination without discussing the combined authority of Congress under the 14th and 15th Amendments to regulate state and federal elections. The decision focused only on authority granted under the 14th Amendment.

The Shelby County case now gives the Supreme Court an opportunity to consider congressional authority over elections in aggregate. If the court invalidates Section 5, it would be a clear rejection of broad congressional authority to regulate state and federal elections. This outcome would be problematic, however, because the court has never considered the importance of Section 2 of the 14th Amendment on the scope of congressional authority over elections.

Section 2 permits Congress to reduce a state’s representation in the House of Representatives when the state abridges the right to vote in “any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof … for any reason except for participation in rebellion, or other crime.”

Section 2 is as an example of a “congruent and proportional” remedy, consistent with City of Boerne, to address infringements of the right to vote. The penalty applies in both state and federal elections, and to abridgements of the vote on grounds not limited to race discrimination. Section 2 complements the 15th Amendment’s direct prohibition of racial discrimination in voting. More important, it affects the scope of congressional enforcement authority under Section 5 of the 14th Amendment, allowing Congress to impose penalties other than reducing a state’s number of House seats for voting rights violations.

This analysis of Section 2 has far-reaching implications for the constitutionality of the pre-clearance regime. The strongest argument for Section 5’s invalidation is its requirement that specific states pre-clear all changes to laws that govern state elections having few, if any, federal implications.

However, pre-clearance is constitutional because it is a far lesser penalty than reducing a state’s House delegation under Section 2 — which is a bigger invasion of state sovereignty. In addition, pre-clearance is tailored to address a specific harm — abridgement of the right to vote in state and federal elections on grounds not limited to purposeful race discrimination — similar in scope to Section 2. Invalidation of Section 5 of the Voting Rights Act would ignore these facts, and hamstring congressional authority over elections for years to come.


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There are particular problems with Section 5, so the Court striking it down would not have the cataclysmic ramifications that the piece here claims. Here’s why Section 5 is bad policy, outdated, unconstitutional, and ought to be struck down by the Supreme Court: http://www.pacificlegal.org/opeds/Overtu rn-unconstitutional-Voting-Rights-Act

What’s especially ironic is that the principal use to which Section 5 is put today is forcing jurisdictions to create and maintain racially segregated and gerrymandered voting districts – which is completely at odds with the original ideals of the Civil Rights Movement.

There are other federal laws available to protect the rights of voters, and they don’t raise the problems that Section 5 does.

Posted by RogerClegg | Report as abusive