Section 5 of the Voting Rights Act

I’m going to do some posts on the upcoming constitutional challenge to the preclearance provisions of the Voting Rights Act in Shelby County.  The prior Supreme Court case that could have addressed this challenge, NAMUDNO v. Holder, was decided in 2009 when I was just starting out as a blogger, thus I did not write anything about the constitutional question then.  My view is that this is a very close case on the merits, and I’m not sure how I come out.

Let’s start with the applicable standard of review.  In NAMUDNO, Chief Justice Roberts wrote that the parties did not agree on whether the test for examining Congress’s exercise of its authority under Section Two of the Fifteenth Amendment was rationality or congruence and proportionality.  “The Act’s preclearance requirements and its coverage formula,” the Chief Justice said, “raise serious constitutional questions under either test.”  I think that this statement is wrong, in the sense that the constitutional question looks very different depending on which standard you apply.  Under the rational basis test, there is a good argument that Section 5 of the Voting Rights Act is valid.  Under the congruence and proportionality test, though, the opposite conclusion seems more reasonable.

What standard of review should apply?  The best argument for congruence and proportionality is that the relevant language in the Fifteenth Amendment is the same as the “enforcement” text in the Fourteenth Amendment that was read in City of Boerne v. Flores as requiring more than mere rationality. Why read the same language drafted at around the same time differently in a different amendment?  One possible answer is that the Court’s original decision upholding Section 5 of the Voting Rights Act, South Carolina v. Katzenbach, said that it was applying rational basis scrutiny. City of Boerne, though, implied that this passage in Katzenbach was dicta and that in 1965 Section 5 was congruent and proportional.

Another thought is that giving Congress greater discretion in the Fifteenth Amendment context does less harm to federalism than would be the case under the Fourteenth Amendment.  In City of Boerne, the Court made the point (among others) that allowing Congress to legislate in any area that was rationally related to due process or equal protection would basically give Congress a police power.  Fair enough.  The same concern, though, is not present in the Fifteenth Amendment, which empowers Congress to legislate over just one subject–racial discrimination in voting.  Accordingly, a different standard of review is appropriate.

More on the Voting Rights Act in the coming weeks.

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1 Response

  1. Joe says:

    One concern here is that the law is underinclusive (to address the narrower subject range of the 15A) since non-covered areas like Ohio are areas where voting practices were a concern in recent years.

    Federalism and equality of the states (apparently why Art. IV is cited) still remains a concern, if less so given the lesser range of possible federal regulation in this area. Possible rational basis with teeth de facto test applied with underinclusiveness at some point an issue.

    Use of possible racial discriminatory practices in Ohio to attack the law is a crafty strategy that is sure to arise at some point.