Two section twos and two section fives: voting rights and remedies after Flores.

• Author: Karlan, Pamela S.
• Position: Symposium: Reflections on City of Boerne v. Flores

My favorite book review of all time appeared in Field and Stream and concerned Lady Chatterley's Lover:

[T]his fictional account of the day-by-day life of an English

gamekeeper is still of considerable interest to out-door-minded

readers, as it contains many passages on pheasant raising,

the apprehending of poachers, ways to control vermin, and

other chores and duties of the professional gamekeeper. Unfortunately,

one is obliged to wade through many pages of

extraneous material in order to discover and savor these sidelights

on the management of a Midlands shooting estate....(1)

I suppose I should feel apologetic, but my reaction to City of Boerne v. Flores(2) was rather similar. I know most constitutional scholars consider the Religious Freedom Restoration Act (RFRA)(3) and the religion clauses the far sexier topic, but what gripped me was the Court's treatment of the Voting Rights Act of 1965 (the "Act").(4)

With respect to the Voting Rights Act, Flores was remarkable for its blend of enthusiasm and silence. Justice Kennedy's opinion relied heavily on the Act as an exemplary illustration of congressional enforcement power under Section 5 of the Fourteenth Amendment.(5) Yet the quartet of "[r]ecent" Voting Rights Act cases on which he relied were all decided at least seventeen years ago.(6) In more contemporary cases involving the key provision of the 1982 amendments to the Act, Justice Kennedy has explicitly left open the question of the Act's constitutionality.(7)

My goal in this Essay is to begin to answer that question and show that the Voting Rights Act, in its current form, remains a proper use of congressional enforcement power. Congress's choice of disparate impact tests in both section 2 and section 5 of the Voting Rights Act represents an appropriate congressional judgment despite the Supreme Court's decisions in City of Mobile v. Bolden(8) and Rogers v. Lodge(9) that only purposeful vote dilution violates the Equal Protection Clause of the Fourteenth Amendment.(10) Sections 2 and 5 of the Voting Rights Act are designed to address prior unconstitutional discrimination, both within and outside the electoral process, as well as to prevent future invidious conduct. Moreover, each is carefully calibrated to insure "congruence and proportionality between the injur[ies] to be prevented or remedied and the means adopted to that end."(11)

1. THE VOTING RIGHTS QUARTET: THE REACH OF CONGRESSIONAL POWER UNDER SECTIONS 2 AND 5 OF THE RECONSTRUCTION AMENDMENTS

   Section 5 of the Fourteenth Amendment and Section 2 of the Fifteenth Amendment grant Congress the "power to enforce" the amendments' substantive commands by "appropriate legislation."(12) The question at the heart of Flores was Congress's power to forbid state practices that have only a disparate impact in the service of enforcing constitutional provisions that would directly forbid only purposeful discrimination. In answering this question, the Court quite naturally turned to the quartet of Voting Rights Act precedents because they offer the most complete explanation of congressional enforcement power under the Reconstruction Amendments.

   Flores discussed provisions of the Voting Rights Act that banned the use of literacy tests as a prerequisite to voting and that imposed a "preclearance" requirement on certain jurisdictions with a history of depressed political participation, requiring them to obtain federal approval before implementing changes in any laws affecting voting.(13) Flores reaffirmed the propriety of these provisions as responses to "the widespread and persisting deprivation of constitutional rights resulting from this country's history of racial discrimination."(14)

   The cases on which the Court relied offer three models of congressionally corrigible invidious discrimination: the internal, the external, and the prospective. The operation of these models, and the types of congressional responses they might permit, are illustrated by the literacy test cases.

   First, under the internal model, literacy tests themselves might be the source of invidious discrimination; that is, the unconstitutional discrimination might occur within the electoral system. Congress and the Court had substantial evidence that literacy tests were administered in deliberately discriminatory ways for the purpose of excluding black citizens who possessed the same abilities as white individuals who were permitted to register.(15) Under this view, Congress could ban literacy tests because the available evidence gave it "reason to believe that many of the laws affected by the congressional enactment have a significant likelihood of being unconstitutional."(16) The congressional ban might--and in fact did(17)--reach some literacy tests that could not be proven to be purposefully discriminatory. But as long as there was "congruence and proportionality between the [unconstitutional] injury to be prevented or remedied and the means adopted to that end,"(18) the Constitution does not require a perfect fit.

   Second, in the external model, purposeful governmental discrimination outside the electoral system might play out within the electoral system, where it would be observed in the disparate impact of otherwise acceptable policies. For example, the inability of minority voters to pass even a fairly administered literacy test might be "the direct consequence of previous governmental discrimination in education."(19) Under this view, Congress could ban literacy tests to reach and remedy the effects of that impermissible prior discrimination. Again, even though some of the beneficiaries of the ban on literacy tests might not be actual victims of the government's unconstitutional provision of an inferior and inadequate education, there was a sufficient connection to justify some level of overbreadth.

   Third, under the prospective model, literacy tests might be seen as enabling future invidious action. For example, if literacy tests eliminate a disproportionate number of minority citizens from the electorate, then their diminished voting power might leave minorities vulnerable to discrimination in a wide range of government programs by officials who would be relieved of any practical need to be responsive to the minority's concerns. Under this expansive view, Congress might ban literacy tests "as a remedial measure to deal with ... discrimination in the provision of public services."(20) In short, there are a variety of ways in which "[l]egislation which deters or remedies constitutional violations can fall within the sweep of Congress' enforcement power even if in the process it prohibits conduct which is not itself unconstitutional."(21)

   Flores's discussion of the Voting Rights Act quartet also sheds light on the requisite "congruence and proportionality" between means and ends under the enforcement powers.(22) The provisions at issue in the quartet were simultaneously quite broad and quite narrowly targeted. But the Court saw both the Act's breadth and its narrowness as reflecting appropriate congressional judgment. Preclearance, for example, is an "uncommon"(23) and "extraordinary departure" from the usual relationship between the federal government and the states,(24) but it reaches only a limited number of jurisdictions where Congress had reason to believe past discrimination was pervasive and future discrimination was likely.(25) And its coverage has always been only temporary: the version upheld in South Carolina v. Katzenbach was scheduled to terminate within five years;(26) the 1975 amendment approved in City of Rome "lapsed in seven years."(27) Similarly, although by the time of Oregon v. Mitchell(28) Congress had banned literacy tests nationwide, it addressed only a specific practice "with a long history as a `notorious means to deny and abridge voting rights on racial grounds.'"(29)

   Beneath the surface, the Court's analysis of the requirement of means-ends tailoring poses a tantalizing question: Must the prospect of purposeful discrimination be a continuing threat? That is, can an "enforcement" statute become unconstitutional if circumstances change? Justice Kennedy seemed to disclaim any requirement that Congress ensure that the legislation survives only as long as the danger of unconstitutional state action persists.(30) Still, his discussion of RFRA's legislative record at least raises the possibility of some kind of durational constraint. Justice Kennedy observed that the record "lacks examples of modern instances of generally applicable laws passed because of religious bigotry. The history of persecution in this country detailed in the hearing mentions no episodes occurring in the past forty years."(31) The contrast between present circumstances and a history of discrimination suggests that there might have been a moment when Congress might have identified a level of persecution sufficient to justify some form of a Religious Freedom Act--perhaps one more closely targeted at particular jurisdictions or practices--even if that moment has now passed. But if the record today is inadequate to justify the exercise of congressional enforcement power, why...