“A Structural Theory of Elections”

Franita Tolson has posted this draft on SSRN.  Here is the abstract:

Scholars and courts have hotly debated whether section 5 of the Voting Rights Act is constitutional under the Reconstruction Amendments. In these debates, attention has focused almost exclusively on the provisions in the Fourteenth and Fifteenth Amendments that authorize congressional enforcement. This Article argues that there is a better, more sure way to ground section 5 of the Voting Rights Act in the Constitution by exploring the structural inferences that emerge from viewing these Amendments holistically. In particular, this Article draws important lessons from section 2 of the Fourteenth Amendment, which allows Congress to reduce a state’s representation in the House of Representatives for abridging the right to vote in state and federal elections for “any reason except for participation in rebellion, or other crime.”

This Article contends that section 2 influences the scope of congressional authority under section 5 of the Fourteenth Amendment, which gives Congress the “power to enforce, by appropriate legislation, the provisions of this article.” Section 2, with its low threshold for violations that trigger a relatively extreme penalty, illustrates the proper means/ends fit for congressional legislation to address voting rights violations. Renewed focus on section 2 also sheds light on the textual and historical link between the Fourteenth and Fifteenth Amendments, a link that provides a broad basis for Congress to regulate state elections. This Article concludes that requiring preclearance of all electoral changes instituted by select jurisdictions under section 5 of the Voting Rights Act is actually a lesser penalty than reduced representation under section 2, and is thus consistent with Congress’s broad authority to regulate voting and elections under the Fourteenth and Fifteenth Amendments.

I just had a chance to read this impressive piece.  There is a lot of history surrounding the passage of the 14th and 15th amendments which is important and was neglected until this piece. Download it while it’s hot!

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