“Section 5 of the Voting Rights Act and the ‘Aggregate Powers’ of Congress over Elections”

Jack Chin has posted this draft on SSRN.  Here is the abstract:

In NAMUDNO v. Holder, the Supreme Court suggested that Section 5 of the Voting Rights Act of 1965 was unconstitutional. The Court explained that Section 5, requiring preclearance of electoral changes in certain jurisdictions, rests on Congress’s Fifteenth Amendment enforcement power, yet does not appear congruent and proportional to recent unconstitutional discrimination as required by City of Boerne v. Flores. Further, it imposes substantial federalism costs both because it interferes with local electoral practices, and because it does not apply uniformly to all states. NAMUDNO disposed of the case on other grounds, but an appeal squarely presenting the issue is before the Court.

This article proposes that NAMUNDO overlooks the fact that the Constitution grants Congress a portfolio of powers to regulate elections. In other contexts, the Court has referred to “an aggregate of the powers of the Congress,” reading several powers together to understand the Constitution’s intended scope. Several other provisions sustain Section 5: the Elections Clause (Article I, § 4) as to federal elections, and the Guarantee Clause (Article IV, § 4) as to state elections. Both provisions appear in the legislative history, and the court has previously discussed both in support of the Act. The Elections Clause and the Guarantee Clause grant Congress direct powers, so unlike legislation based on the Reconstruction Amendments, there is no necessity to measure Section 5 against constitutional violations. In addition, although Section 5 does not apply to all states, it is “uniform” under the Court’s decisions requiring uniform exercise of federal powers.

Section 5 is a heartland exercise of the powers of Congress. The Elections Clause authorizes Congress to prevent misconduct in one state that might disadvantage other states or distort the national government. The Guarantee Clause is designed, among other things, to ensure that minorities do not wrongfully usurp lawful majorities of voters. The history of African American suffrage involved disenfranchisement of absolute majorities or of minorities so large that they could win with only a sliver of the non-African American vote. Today, in a closely divided nation, it is plausible that African Americans could provide the margin of decision in many elections. Accordingly, Congress legislated well within its powers when it enacted Section 5.

Share this: