On the Road to Arguing for the Unconstitutionality of Section 2 of the Voting Rights Act

I’ve been sounding this alarm for a while, beginning with leading up to the Shelby County oral argument.  Opponents of the constitutionality of Voting Rights Act Section 5 made the claim, among others, that Section 5 was no longer necessary to protect minority voting rights because other provisions of the Act, including Section 2, would do that work.  Yet some of the very constitutional arguments against Section 5 (such as the argument that City of Boerne and other new federalism cases require Congress to show intentional state racial discrimination and that the law is a “congruent and proportional remedy” for such intentional discrimination) could be pushed equally against Section 2.

Now that Section 5 is essentially gone, it is time for the attack on Section 2.

Here is the final stage before the unconstitutionality argument: an extensive argument by Roger Clegg and Hans von Spakvosky that courts must interpret Section 2 very, very narrowly or else the law would be an unconstitutional exercise of congressional power under City of Boerne and Shelby County.

It’s a win-win for them as far as the argument goes: either section 2 is sapped of any of its remaining vitality through an anemic reading under the doctrine of constitutional avoidance; or Section 2 is now unconstitutional.

Sad but predictable.

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