{"id":1594,"date":"2012-11-16T20:17:21","date_gmt":"2012-11-17T01:17:21","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/hlpr\/?p=1594"},"modified":"2015-10-02T15:22:31","modified_gmt":"2015-10-02T15:22:31","slug":"what-is-a-proportional-congressional-response-when-states-violate-peoples-voting-rights","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/lpr\/2012\/11\/16\/what-is-a-proportional-congressional-response-when-states-violate-peoples-voting-rights\/","title":{"rendered":"What is a \u201cproportional\u201d congressional response when states violate people\u2019s voting rights?"},"content":{"rendered":"

By\u00a0Anthony Kammer<\/p>\n

<\/em>Florida State University law professor Franita Tolson had an interesting\u00a0guest post at Rick Hasen\u2019s Election Law Blog\u00a0this weekend, laying out an argument that might end up being important in the constitutional challenge of Section 5 of the Voting Rights Act.<\/p>\n

To provide some background, the issue before the Court in\u00a0Shelby County v. Holder<\/em>\u00a0is whether Congress had the authority under the\u00a0Fourteenth and Fifteenth Amendments when, in 2006, it reauthorized Section 5 of the Voting Rights Act\u00a0with the preexisting coverage formula from Section 4(b). The Court is expected to confront this issue under the\u00a0Boerne v. Flores<\/span><\/em>,\u00a0521 U.S. 507 (1997),\u00a0line of cases, which would require that any congressional legislation enacted under the 14th and 15th Amendments be \u201ccongruent and proportional\u201d to the constitutional violation it seeks to remedy.
\n
\nIn upholding Section 5 against Shelby County\u2019s challenge,\u00a0both a\u00a0DC District Court\u00a0and the\u00a0DC Circuit Court of Appeals\u00a0found that the reauthorization was \u201ccongruent and proportional\u201d and was therefore within Congress\u2019 power. The DC circuit court also wrote that the VRA would also be constitutional under the less rigorous rational basis standard announced in\u00a0South Carolina v. Katzenbach<\/span><\/em>, 383 U.S. 301\u00a0(1966).\u00a0Both 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,\u00a0the 2012 election cycle offers yet further evidence that\u00a0Section 5 remains essential in preventing voter suppression. Nevertheless, many in the voting rights community are fearful that the Supreme Court is\u00a0prepared to strike down the law.<\/p>\n

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.\u00a0As Professor Tolson\u00a0points out:<\/p>\n

I noticed that there is an important gap in the literature.\u00a0 I have written about Congress\u2019s enforcement authority under section 5 of the Fourteenth Amendment, section 2 of the Fifteenth Amendment, and the Elections Clause\u2026but what about the other section 2? No, not section 2 of the Voting Rights Act.\u00a0 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.\u00a0\u00a0Section 2 gives Congress the ability to reduce a state\u2019s representation in the House when it abridges the right to vote at \u201cany 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\u2026\u00a0 for any reason except for participation in rebellion, or other crime.\u201d<\/strong>\u00a0 Using this provision, my latest article, tentatively titled\u00a0A Structural Theory of Elections,\u00a0<\/em>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 \u201ccongruent and proportional\u201d remedy under the Supreme Court\u2019s decision in\u00a0City of Boerne v. Flores<\/em>\u00a0to 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]<\/p>\n

If the 14th Amendment explicitly authorizes Congress to take the far more radical step of reducing a state\u2019s\u00a0representation 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\u2019\u00a0authority and to any originalist understanding of the amendment.<\/p>\n","protected":false},"excerpt":{"rendered":"

By\u00a0Anthony Kammer Florida State University law professor Franita Tolson had an interesting\u00a0guest post at Rick Hasen\u2019s Election Law Blog\u00a0this weekend, […]<\/p>\n","protected":false},"author":6,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2],"tags":[],"class_list":["post-1594","post","type-post","status-publish","format-standard","hentry","category-blog"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZQka-pI","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1594","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/users\/6"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/comments?post=1594"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1594\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/media?parent=1594"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/categories?post=1594"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/tags?post=1594"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}