“Enforcing the Political Constitution”

Stanford Law Review recently posted a short essay that I wrote for the journal’s symposium on “Safeguarding the Fundamental Right to Vote.” The symposium includes a really terrific set of essays from Sam Issacharoff, Yasmin Dawood, Michael Kang, Michael Morley, and Rick Pildes. The entire symposium is worth checking out.

My essay challenges the notion of judicial supremacy underlying the Supreme Court’s jurisprudence under Section 5 of the Fourteenth Amendment. In the essay, I argue that the congruence and proportionality standard should not apply to federal voting rights legislation because the right to vote is both a constitutional right, subject to judicial regulation, and a political right, aspects of which are beyond the purview of the courts. The link to the essay is here. Here is the abstract:

This short essay argues that the congruence and proportionality test of City of Boerne v. Flores—which the U.S. Supreme Court applies to laws passed pursuant to Section 5 of the Fourteenth Amendment—should not apply to federal voting rights legislation. This test is inapplicable because the right to vote, although a judicially protected constitutional right, is also a political right beyond the purview of the courts. The right to vote implicates a number of constitutional provisions that are direct grants of power to Congress, the exercise of which can directly conflict with the notions of judicial supremacy that dominate our legal system.

Pursuant to its obligation to guarantee to every state a republican form of government under Article IV, Section 4 and in reviewing the elections of its members under Article I, Section 5, Congress has made substantive judgments about the scope of the right to vote in ways that are not always in line with judicial pronouncements about what constitutes “appropriate legislation” under the Fourteenth and Fifteenth Amendments. Through these provisions, Congress has constructed its own vision of the substantive contours of the right to vote.

As this essay will show, City of Boerne’s elevation of judicial, rather than congressional, interpretation is illegitimate where the Constitution delegates overlapping and, sometimes, competing authority to Congress to dictate the scope of hybrid political/constitutional rights like the right to vote. Because of the hybrid nature of the right as both constitutional and political, the Court must acknowledge this competing view in assessing the scope of congressional power over elections.

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