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.”