the yale law journal
Section 5 of the Voting Rights Act (VRA)
is living on borrowed time.Originally enacted to overcome “nearly a century of widespread resistance tothe Fifteenth Amendment,”
section 5 requires certain “covered jurisdictions”to preclear all voting changes with federal authorities. Over the course of four decades, the VRA abolished Jim Crow and empowered minority voters. Thisresounding success has led some to question whether section 5 has created a world in which its protections are no longer constitutional. In 1997, theSupreme Court amplified these concerns by limiting Congress’s Fourteenth Amendment enforcement authority in
City of Boerne v. Flores
When section 5 was reauthorized in 2006,
commentators speculated whether the Court wouldinvalidate one of the crown jewels of the civil rights movement.
Northwest Austin Municipal Utility District No. One v. Holder
the Court made clear that section 5 was constitutionally suspect. NAMUDNO, a Texas water district created to fund infrastructure for a housing development, sought a statutory exemption from the Act’spreclearance requirements. In the alternative, NAMUDNO brought a constitutional challenge, claiming that the VRA impermissibly infringed uponstate sovereignty. At oral argument, the Justices lambasted the JusticeDepartment and NAACP advocates.
Justice Kennedy, in particular, focused on
42 U.S.C.A. § 1973c (West Supp. 2009).
South Carolina v. Katzenbach, 383 U.S. 301, 337 (1966).
521 U.S. 507, 520 (1997) (establishing the congruence and proportionality test).
Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorizationand Amendments Act of 2006, Pub. L. No. 109-246, 120 Stat. 577.
EMOCRACY IN THE
213-15 (rev. ed. 2009); A
196-98, 213(2009); Heather K. Gerken,
A Third Way for the Voting Rights Act: Section 5 and the Opt-in Approach
, 106 C
. 708, 743-45 (2006); Richard L. Hasen,
Congressional Power To Renew the Preclearance Provisions of the Voting Rights Act After
Tennessee v. Lane, 66 O
L.J. 177, 206-07 (2005). For discussions of the VRA’s status as a landmark statute, see Bruce Ackerman,
The Living Constitution
, 120 H
. 1737, 1783 (2007); and William N. Eskridge, Jr.,
America’s Statutory “Constitution
. 1, 13-14 (2007).
129 S. Ct. 2504 (2009).
, Transcript of Oral Argument at 30, Nw. Austin Mun. Util. Dist. No. One v. Holder (
), 129 S. Ct. 2504 (2009) (No. 08-322) (question of Justice Alito) (“Well, if section 2 is ineffective, then why didn’t Congress extend section 5 to the entire country?”);
at 51 (question of Justice Scalia) (“Do you ever expect—do you ever seriously expectCongress to vote against a reextension of the Voting Rights Act?”);
at 31 (question of