This article considers a single question: Does Congress have the power to renew the Voting Rights Act's preclearance provisions, set to expire in 2007? Beginning with South Carolina v. Katzenbach, the United States Supreme Court has upheld preclearance as a permissible exercise of congressional enforcement power. These cases, however, mostly predate the Supreme Court's New Federalism revolution. As part of that revolution, the Court has greatly restricted the ability of Congress to pass laws regulating the conduct of the states under its enforcement powers granted in Section Five of the Fourteenth Amendment, which the Court has read as coextensive with its enforcement powers under the Fifteenth Amendment. Moreover, in Board of Trustees v. Garrett, the Court made clear that it will search for an adequate evidentiary record to support a congressional determination that states are engaging in unconstitutional conduct to justify congressional regulation of the states. Some of that clarity on the evidentiary question disappeared in the Court's 2003 decision, Nevada v. Hibbs, and even greater uncertainty has been created by the Court's 2004 decision, Tennesee v. Lane.And it only gets better after that. This paper is a real page turner for even marginal Voting Rights, redistricting, representation, election law, constitutional law, or just plain political nerds. A must read . . . .
Wednesday, October 05, 2005
I submit for your consideration ElectionLawBlog.org author and professor Rick Hasen's 2005 law journal article Congressional Power to Renew the Preclearance Provisions of the Voting Rights Act after Tennessee v.Lane 66 Ohio State Law Journal 177 (2005):