Franita Tolson, The Constitutional Structure of Voting Rights Enforcement (2013) (forthcoming Washington Law Review), available at http://ssrn.com/abstract=2303155.
Abstract: Scholars and courts have hotly debated whether the preclearance regime of the Voting Rights Act is constitutional under the Reconstruction Amendments, but 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 for abridging 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, by appropriate legislation, the provisions of this article.” 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.
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