One of the most successful pieces of civil rights legislation in American History, the Voting RightsAct of 1965 helped achieve a level of black enfranchisement that had seemed impossible since the ratification of the Fifteenth Amendment nearly a century earlier. Indispensable to the VRA’s success was Section 5, which turns the tables on jurisdictions deemed to be the worst offenders by creating a presumption of racial discrimination that had to be overcome by “preclearing” any change in voting practices with federal authorities. Although the VRA has withstood a number of constitutional challenges over the years, the Supreme Court recently held that the formula determining which jurisdictions are subject to preclearance is outdated and unconstitutional. Left unresolved, however, is what standard of review should apply in assessing the constitutionality of statutes enacted under Congress’s Fifteenth Amendment enforcement power. This Article argues that if the Court eventually applies the well-established Fourteenth Amendment “congruence and proportionality” standard, this will be a rather remarkable doctrinal development. Instead, legislation enforcing the Fifteenth Amendment should be subject to a more deferential standard for several reasons. First, there is no reason why the similarities in the two amendments’ enforcement clauses must necessarily lead to identical enforcement powers. Second, the Supreme Court has not, in fact, applied the Fourteenth Amendment standard to Section 5. Third, because the subject matter of the Fifteenth Amendment is so much narrower than that of the Fourteenth, the Court need not worry about granting more deference to Congress in enforcing it. Finally, to prevent the Fifteenth Amendment from being swallowed by the Fourteenth, the Court should decline to conflate the applicable standards of review.
The Voting Rights Act and the Fifteenth Amendment Standard of Review,
U. Pa. J. Const. L.
Available at: https://scholarship.law.upenn.edu/jcl/vol16/iss5/5