Congressional Power to Renew the Preclearance Provisions of the Voting Rights Act After Tennessee v. Lane

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Congressional Power to Renew the Preclearance
Provisions of the Voting Rights Act After
Tennessee v. Lane

• Professor Rick Hasen
• Loyola Law School, Los Angeles

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Main argument

• If Congress renews section 5 of the Voting Rights
  Act in substantially the same form as it is
  today, there is a reasonable chance that the
  Supreme Court would strike it down as an
  unconstitutional exercise of Congressional power.
  But developments over the past two years temper
  this assessment.

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The early cases permissible exercise of
Congressional power

• In South Carolina v. Katzenbach, the Supreme
  Court rejected South Carolinas argument that
  section 5 exceeded Congressional power to enforce
  the 15th Amendment.
• Later cases considering similar arguments (also
  under the 14th Amendment enforcement powers)
  reached similar results

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The New Federalism
The Rehnquist Court has undertaken a federalism
revolution. Two cases relevant to this
discussion.
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Boerne Congruence and Proportionality

• City of Boerne v. Flores (1997) The Court has
  limited Congress to passing remedial statutes.
  It has rejected congressional attempts to expand
  the scope of constitutional rights through
  legislation beyond that which is congruent and
  proportional to remedy intentional
  unconstitutional discrimination by the states.
• (Benefits of statutes with geographical and
  temporal limits)

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Garrett Adequate Evidentiary Record

• Board of Trustees v. Garrett (2003) The Court
  indicated that it will search for an adequate
  evidentiary record to support a congressional
  determination that states are engaging in
  sufficient intentionally unconstitutional conduct
  so as to justify congressional regulation.
• Court treats Congress like a party in litigation
  coming forward with adequate evidence.

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Problem for a Renewed Section 5

• Where is the evidence of unconstitutional action
  by the states in voting so as to justify the
  strong medicine of preclearance?

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The Bull Connor is Dead problem

• Not much of a record of recent state-driven
  discrimination that Congress could point to
  support renewal.
• Most of the original racist elected officials are
  out of power, and those who remain in power have
  for the most part been deterred by preclearance

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How to create adequate evidentiary record?

• Some have suggested reliance on DOJ preclearance
  statistics, but for the most part they do not
  show intentional unconstitutional violations.
  The number of objections is reaching very low
  levels, both absolutely and relatively.

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Private acts of discrimination appear irrelevant

• Need to find state-based discrimination, or
  potentially local government discrimination, not
  private racist voting decisions, to justify
  Congressional limits on state action.

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Two reasons Court Could Uphold a Renewed Section 5

• 1. The two most recent Supreme Court cases,
  Nevada v. Hibbs and Tennessee v. Lane, seem to
  have lowered the evidentiary burden compared to
  the Garrett case.

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• 2. If indeed Georgia v. Ashcroft makes it easier
  for covered jurisdictions to obtain preclearance,
  this suggests that the burden on the states is
  not as severe as it was, making the preclearance
  remedy more congruent and proportional.

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Caveat Retirements?

• All of this analysis is based upon the current
  makeup of the Supreme Court. The most recent
  cases are all very close decisions, and a change
  in one or two Justices could tip the balance on
  this issue one way or the other.

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How Should Congress Act if It Wants Renewed
Preclearance Upheld?

• Create adequate evidentiary record of acts of
  intentional discrimination by states and
  localities.
• Continue to use geographical and temporal
  limitations.
• Consider other potential bases for its exercise
  of power, including Guarantee Clause.