by By Anthony Kammer
Florida State University law professor Franita Tolson had an interesting guest post at Rick Hasen’s Election Law Blog this weekend, laying out an argument that might end up being important in the constitutional challenge of Section 5 of the Voting Rights Act.
To provide some background, the issue before the Court in Shelby County v. Holder is whether Congress had the authority under the Fourteenth and Fifteenth Amendments when, in 2006, it reauthorized Section 5 of the Voting Rights Act with the preexisting coverage formula from Section 4(b). The Court is expected to confront this issue under the Boerne v. Flores, 521 U.S. 507 (1997), line of cases, which would require that any congressional legislation enacted under the 14th and 15th Amendments be “congruent and proportional” to the constitutional violation it seeks to remedy.
In upholding Section 5 against Shelby County’s challenge, both a DC District Court and the DC Circuit Court of Appeals found that the reauthorization was “congruent and proportional” and was therefore within Congress’ power. The DC circuit court also wrote that the VRA would also be constitutional under the less rigorous rational basis standard announced in South Carolina v. Katzenbach, 383 U.S. 301 (1966). Both of these lower court rulings contained a thorough review of the congressional record and found sufficient facts to conclude that Section 5 of the VRA remains well matched to its objective of preventing voting rights violations in covered regions. And as Ari Berman noted recently at the Nation, the 2012 election cycle offers yet further evidence that Section 5 remains essential in preventing voter suppression. Nevertheless, many in the voting rights community are fearful that the Supreme Court is prepared to strike down the law.
Beyond the factual record, there is another reason for believing that Congress was acting well within its authority in renewing the VRA: Section 2 of the Fourteenth Amendment. As Professor Tolson points out:
I noticed that there is an important gap in the literature. I have written about Congress’s enforcement authority under section 5 of the Fourteenth Amendment, section 2 of the Fifteenth Amendment, and the Elections Clause…but what about the other section 2? No, not section 2 of the Voting Rights Act. Rather, section 2 of the Fourteenth Amendment, which allows Congress to intervene in state elections in a way that is more extreme and intrusive than its requirement that states preclear every change to their election laws. Section 2 gives Congress the ability to reduce a state’s representation in the House when it abridges the right to vote at “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.” Using this provision, my latest article, tentatively titled A Structural Theory of Elections, shows how even the most objectionable part of the preclearance regime is constitutional because section 2, with its extreme penalty for states that abridge the right to vote on almost any grounds in almost any election (state and federal), stands both as an example of what would be a “congruent and proportional” remedy under the Supreme Court’s decision in City of Boerne v. Flores to address abridgment of the right to vote in both state and federal elections, and it also influences the scope of congressional authority under section 5 of the Fourteenth Amendment. [emphasis mine]
If the 14th Amendment explicitly authorizes Congress to take the far more radical step of reducing a state’s representation in Congress for engaging in voting rights violations, the power to enact a less severe measure such as requiring ongoing preclearance under the Voting Rights Act would seem to be implied. While there are certainly grounds for distinguishing preclearance from a reduction in federal representation, Section 2 of the 14th Amendment seems squarely relevant to the scope of Congress’ authority and to any originalist understanding of the amendment.