“Prophylactic Redistricting? Congress’s Section 5 Power and the New Equal Protection Right to Vote”

Michael Morley has posted this draft on SSRN (forthcoming, William & Mary L. Rev.). Here is the abstract:

The Voting Rights Act (VRA) has been an important mechanism for increasing participation by racial minorities in the electoral system. In recent years, however, the Supreme Court has demonstrated its willingness to reconsider the VRA’s constitutionality. Due to the broad prophylactic scope of section 2 of the VRA, two main developments pose risks to its continued validity.

First, the Supreme Court narrowed Congress’s enforcement power under Section 5 of the Fourteenth Amendment in City of Boerne v. Flores, and is likely to interpret Section 2 of the Fifteenth Amendment similarly. Section 2 of the VRA features many key characteristics of statutes that the Court has held exceeded Congress’s Enforcement Clause authority. The Court may nevertheless preserve section 2 by applying it in light of traditional remedial principles governing prophylactic injunctive relief. Section 2 would fit comfortably within Congress’s authority if it were interpreted as prophylactically prohibiting constitutionally valid state laws, legislative maps, or other election-related measures only when those principles establish it is reasonably necessary to prevent violations of Fourteenth or Fifteenth Amendment rights.

Second, ongoing evolution in equal protection jurisprudence calls into question measures such as section 2 of the VRA that provide prophylactic protection for certain groups. The Court has historically adopted a “pro-voting” conception of equal protection under which laws protecting voting rights only for certain people were generally upheld under rational basis scrutiny. Bush v. Gore laid the foundation for a “pro-equality” approach emphasizing that, because voting is a fundamental right, any distinctions among people concerning the right to vote are subject to strict scrutiny and likely invalid. The ongoing shift from a “pro-voting” to “pro-equality” equal protection norm reflects the Court’s skepticism of legislative control over the electoral process, as well as its reformation of voting rights from a purely political issue into a constitutional one. A “pro-equality” conception of equal protection enhances courts’ power to protect voting rights while reducing the ability of Congress and legislatures to do so.

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