Franita Tolson has posted this draft on SSRN (forthcoming, Alabama Law Review).  Here is the abstract:

Section 2 of the Fourteenth Amendment, which allows Congress to reduce a state’s delegation in the House of Representatives if the state abridges the right to vote, has been ignored by both the courts and much of the scholarly literature. However, section 2, with its broad language unencumbered by references to race or color, allows Congress to legislatively address virtually any abridgment of the ballot through its section 5 enforcement power.

This Article contends that section 2 of the Fourteenth Amendment provides constitutional justification for section 2 of the Voting Rights Act, the validity of which has come under fire in recent years. Section 2 of the Voting Rights Act forbids any voting “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” Critics argue that the statute’s use of race-conscious remedies and its focus on the discriminatory effect of various state laws unduly infringes the states’ sovereignty over elections. To avoid potential constitutional problems, these critics contend that the statute should be limited to only those instances in which states act with discriminatory intent.

The search for intent is not only futile in this context, but it is unnecessary. Section 2 is constitutionally sound because section 2 of the Fourteenth Amendment validates any statutory scheme that prevents abridgment of the right to vote, regardless of the presence or absence of discriminatory intent. This Article concludes that an effects only interpretation of section 2 of the Voting Rights Act is consistent with the broad authority that section 2 of the Fourteenth Amendment grants Congress to regulate and protect the right to vote.