The Constitutional Structure of Voting Rights Enforcement

• Publication year: 2021

THE CONSTITUTIONAL STRUCTURE OF VOTING RIGHTS ENFORCEMENT

Franita Tolson(fn*)

Abstract: Scholars and courts have hotly debated whether the preclearance regime of the Voting Rights Act is constitutional under the Reconstruction Amendments. In answering this question, this Article is the first to consider the effect of section 2 of the Fourteenth Amendment on the scope of Congress's enforcement authority. Section 2 allows Congress to reduce the size of a state's delegation in the House of Representatives if the state abridges the right to vote in state and federal elections for any reason, "except for participation in rebellion, or other crime." This Article contends that section 2 influences the scope of congressional authority under section 5 of the Fourteenth Amendment, which gives Congress the power to enforce the amendment through appropriate legislation. Section 2-with its low threshold for violations (i.e., abridgment on almost any grounds) that trigger a relatively extreme penalty (reduced representation)-illustrates the proper means-ends fit for congressional legislation passed pursuant to section 5 to address voting rights violations. Renewed focus on section 2 also sheds light on the textual and historical links between the Fourteenth and Fifteenth Amendments, links that provide a broad basis for Congress to regulate state and federal elections. Contrary to the Supreme Court's recent decision in Shelby County v. Holder, this Article concludes that requiring preclearance of all electoral changes instituted by select jurisdictions under the Voting Rights Act is actually a lesser penalty than reduced representation under section 2, and thus is consistent with Congress's broad authority to regulate voting and elections under the Fourteenth and Fifteenth Amendments.

INTRODUCTION ................................................................................ 380

I. CONGRUENCE, PROPORTIONALITY, AND THE INTERPRETIVE FRAMEWORK OF SECTION 2 OF THE FOURTEENTH AMENDMENT ................................................. 387

A. Reevaluating the Congruence and Proportionality Standard in the Context of Voting and Elections ............... 389

B. "The Greater Includes the Lesser": The Relationship Between Sections 2 and 5 of the Fourteenth Amendment .. 394

1. Section 2 in the Legal Scholarship ............................... 395

2. The Spectrum of Congressional Authority over Elections ....................................................................... 398

II. THE PRESCIENCE OF THE THIRTY-NINTH CONGRESS: VOTING, STATE SOVEREIGNTY, AND THE FOURTEENTH AND FIFTEENTH AMENDMENTS ............... 404

A. Discovering the Framers' Intent: Section 2 of the Fourteenth Amendment as the Baseline for Voting Rights Remedies ................................................................. 405

B. Discovering the Framers' Intent: The Scope of Congressional Enforcement Authority over Voting Rights ................................................................................. 413

1. The Historical Link Between Section 2 of the Fourteenth Amendment and Section 1 of the Fifteenth Amendment ................................................... 414

2. The Enforcement Act of 1870 as a Model for Voting Rights Legislation Under the Fourteenth and Fifteenth Amendments ................................................. 422

III. THE INTRATEXTUAL LEGACY OF THE FOURTEENTH AND FIFTEENTH AMENDMENTS: ASSESSING THE CONSTITUTIONALITY OF PRECLEARANCE ...................... 425

A. Preventing Circumvention Through the Overbreadth of Preclearance ........................................................................ 426

B. New Coverage Formula?: Discriminatory Intent and the Fallacy of Equal Sovereignty ............................................. 432

CONCLUSION .................................................................................... 438

INTRODUCTION

The Voting Rights Act of 1965 (VRA or the Act) is one of the most important pieces of civil rights legislation ever enacted, reflecting Congress's expansive authority to regulate state and federal elections post-Reconstruction.(fn1) The Act is responsible for eradicating much of the discrimination in voting that had long relegated minorities to second-class citizenship. In 2009, the Supreme Court declined to resolve a constitutional challenge to section 5 of the Act,(fn2) which requires certain covered states and jurisdictions to preclear all changes to their election laws with the federal government before the changes can go into effect.(fn3) But just four years later, in Shelby County v. Holder,(fn4) the Court invalidated the VRA's coverage formula in section 4(b), essentially rendering section 5 void by eliminating the mechanism through which coverage under the preclearance regime is determined.(fn5) The Court held that the coverage formula intrudes on the Constitution's principle of "equal sovereignty" by subjecting certain states to the preclearance requirement based on "decades old data and eradicated practices."(fn6) However, in invalidating the coverage formula, the Court failed to address precisely why Congress had the authority to reauthorize section 5 but not section 4(b),(fn7) despite being vocal in 2009 that section 5 could impermissibly intrude on state sovereignty.(fn8)

The Court may have avoided this question because it was playing politics in striking down the coverage formula but not the preclearance provision,(fn9) placing the onus on a gridlocked Congress to develop a new trigger. Or perhaps the Court was trying to be more precise in identifying the provision of the VRA that was actually of constitutional concern.(fn10) In reality, the doctrinal confusion in Shelby County persists because neither the Court nor the legal scholarship has a clear sense of the scope of congressional authority over elections.(fn11) This inconsistency in the doctrine is problematic because challenges to the constitutionality of preclearance as a remedy to address voting rights violations are still on the horizon given that there are currently lawsuits to "bail in" jurisdictions for preclearance using the "pocket trigger" of section 3(c) of the VRA.(fn12) Instead of providing clarity on these issues, however, Shelby County does little to resolve the tension between Congress's authority to protect voting rights and the states' sovereignty over elections.(fn13)

This tension between the states and the federal government exists because the states have the primary responsibility of crafting the laws that govern state and federal elections. The U.S. Constitution allows states to choose the "Times, Places and Manner" of federal elections,(fn14) which, in conjunction with the states' power under the Tenth Amendment,(fn15) amounts to a plenary authority to structure and design elections at every level. Nonetheless, this allocation of authority is premised on the assumption that the states will act in good faith. The Framers initially worried that unfettered state control over elections could lead to the Union's destruction,(fn16) and later, that the states would use their control over voter qualifications to disenfranchise large portions of their population for illegitimate reasons.(fn17)

It is this latter concern that prompted the passage of the VRA after Congress developed an extensive evidentiary record showing that racial discrimination in voting was widespread in certain jurisdictions and impervious to case-by-case litigation.(fn18) Preclearance under section 5 therefore ensures that any changes to election laws within these jurisdictions "neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color."(fn19) Critics argue that section 5 infringes on state sovereignty because minority voter registration and turnout in jurisdictions singled out for coverage through the trigger of section 4(b) parallel that of noncovered jurisdictions,(fn20) and the very act of preclearance requires the affected areas to submit all changes for federal approval, including those regulations that govern state elections having few, if any, federal implications.(fn21)

This Article argues that these criticisms cannot be squared with the structure of the Fourteenth and Fifteenth Amendments, which, when read together, strongly support the constitutionality of the VRA's preclearance regime in its entirety.(fn22) The Amendments, which govern the same subject (voting) and share a drafting history, have textual and historical connections that are the basis for broad federal authority to regulate state elections, authority that is sufficient to overcome any disquietude about disturbing the sovereignty that states retain.(fn23) In particular, the extreme penalty in section 2 of the Fourteenth Amendment,(fn24) which allows Congress to reduce a state's delegation in the House of Representatives for abridging the right to vote in both state and federal elections for reasons not limited to race discrimination, influences the scope of penalties that Congress can impose pursuant to its enforcement authority under the Fourteenth and Fifteenth Amendments.(fn25) The legislative debates in 1866 over the language of section 2 demonstrate that Congress viewed its enforcement authority over voting and elections broadly, although its intent was not to completely displace state sovereignty in this area.(fn26) Section 2, which strikes a...