Waterstone on Lane and Voting Rights

Michael Waterstone has posted Lane, Fundamental Rights, and Voting (forthcoming Alabama Law Review) on SSRN. Here is the abstract:

New federalism's premise is that the Courts are the ultimate arbiter of Congress's ability to use its Section 5 powers to enforce Section 1 of the Fourteenth Amendment. This Article argues that while this principle survives the Supreme Court's recent decision in Tennessee v. Lane, the rules have been changed for cases involving fundamental rights. In Lane, the Court's review of Congress' justifications and constitutional bases for passing Title II of the Americans with Disabilities Act was more relaxed than in previous new federalism cases. While Lane itself does not justify this departure, this Article suggests that the doctrinal and theoretical justification for this shift is that the Court should give a presumption in favor of the validity of Congressional abrogation of state sovereign immunity in cases involving fundamental rights.

This Article applies this view of Lane to a future category of ADA Title II fundamental rights litigation - cases involving the right to vote for people with disabilities. Although earlier new federalism cases would compel a different conclusion, after Lane, Courts should hold that the ADA validly abrogates the States' sovereign immunity in Title II voting cases. This has implications for the whole range of Section 5 legislation.

Finally, the disability rights community has criticized Lane for providing insufficient clarity for future Title II cases. This application of Lane to voting responds to that criticism, showing how the presumption in fundamental rights cases is sufficiently strong as to discourage needless litigation.

Michael is doing some very interesting work at the intersection of disability law and voting rights. I look forward to reading this paper.

Posted by Rick Hasen at October 11, 2004 06:27 AM