Franita Tolson of FSU has written this guest post: [now updated]

What about Section 2?

On Friday, the Supreme Court granted cert in Shelby County, giving most voting rights advocates and law professors heart palpitations in the process (even though we totally expected it).  As Rick noted in an earlier post, the manner in which the Court framed the question is interesting because it goes beyond focusing on Congress’s authority under the Fifteenth Amendment: “Whether Congress’ decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.”  In an earlier piece, Reinventing Sovereignty: Federalism as a Constraint on the Voting Rights Act, recently published in the Vanderbilt Law Review, I argued that Congress did have the authority to reauthorize section 5 of the Voting Rights Act, but I focused on its power pursuant to the Elections Clause as well as the Fourteenth and Fifteenth Amendments.  I contended that these provisions make Congress sovereign over elections while states retain only limited sovereignty, in particular over those state electoral practices that do not implicate a federal interest.

In the course of writing this article, I wondered what it is that is so objectionable about section 5—is it the very fact of preclearance? Or is it that covered states have to preclear all changes, even those that only affect state and local elections?  Or is it the fact that coverage under the Act is determined based on an outdated formula? For my current piece, I decided to try to tackle each of these questions, but by taking a more holistic view of Congress’s authority over elections relative to the states.  For this post, I want to focus on the first two questions: whether Congress, under its authority under section 5 of the Fourteenth Amendment, can require states to preclear changes that only affect state elections.  It is certainly easier to make the case that Congress can require preclearance in the context of federal elections, although this argument is by no means a slam dunk, but arguably, the requirement of preclearance in the context of state elections is much tougher to justify.

Because I am focusing on Congress’s authority over elections, broadly defined, 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.

In my current piece, I argue that Congress’s authority to reduce representation for abridging the right to vote in both state and federal elections on grounds not limited to race also includes the lesser ability to regulate conduct that has the same effect under section 5 of the Fourteenth Amendment; in other words, that such regulations would be an “appropriate” way of enforcing the Fourteenth Amendment.  In particular, I point out that requiring states to preclear any changes to their election laws is actually a lesser penalty than reducing a state’s delegation in Congress under section 2, and moreover, that preclearance is consistent with the structure of section 2 and section 5 of the Fourteenth Amendment.

Sorry for the longish post, but I just want to point out why I feel like an intratextual reading of Congress’s authority under the Fourteenth Amendment is justified in these circumstances.  The Court commonly looks at the substantive protections of section 1 of the Fourteenth Amendment in assessing the scope of Congress’s authority under section 5.  It is not clear to me why the same approach cannot be taken with section 2, which has languished in obscurity with the exception of one case, Richardson v. Ramirez, which I rely on for support of this point.  In Richardson, the Supreme Court held that section 1 of the Fourteenth Amendment was not violated when states disenfranchised felons because of section 2’s language that states were not subject to the penalty of reduced representation when they abridge the right to vote for participating “rebellion, or other crime.”  In other words, the Court used section 2 of the Fourteenth Amendment in order to interpret the substantive reach of section 1; similarly, I argue that section 2 also influences the scope of congressional authority under section 5.

I am still in the process of writing the paper, and fleshing out these arguments.  The arguments I make in this post only get me half way there in defending the constitutionality of section 5 of the Voting Rights Act.  At the very least, however, these are arguments that the Court should consider before they strike down a landmark piece of legislation.