Abstract below, and the full paper is on SSRN.

CONGRUENCE & PROPORTIONALITY AS A CONSTITUTIONAL CONSTRUCTION

The constitutionality of section 2 of the Voting Rights Act is one of the most hotly debated issues in U.S. election law. Congress enacted the VRA in 1965 under the authority granted by the enforcement provisions of the Fourteenth and Fifteenth Amendments. These provisions authorize Congress to enact “appropriate” legislation to “enforce” the substantive rights protected by the amendments. The constitutionality of section 2 depends in part on what standard of review the Court will use to determine the scope of that power. In 2013, in City of Boerne v. Flores, the Court adopted a new test, the congruence and proportionality test, to more strictly review legislation enacted under the enforcement provision of the Fourteenth Amendment. But whether that more restrictive standard should be used in the context of the Fifteenth Amendment has until now remained an open question. We argue it should not. In doing so, we take a fresh approach to the question by engaging with the rich methodological work done by academic originalists to argue that Boerne’s congruence and proportionality test is best understood as a “constitutional construction” rather than a “constitutional interpretation.” We then argue that the test’s usefulness as a constitutional construction in the Fourteenth Amendment context is significantly diminished in the much more confined space of the Fifteenth Amendment. Consequently, the congruence and proportionality test need not, and should not, be applied outside of the Fourteenth Amendment context in which it first emerged.