Academic journal article William and Mary Law Review

Two Section Twos and Two Section Fives: Voting Rights and Remedies after Flores

Academic journal article William and Mary Law Review

Two Section Twos and Two Section Fives: Voting Rights and Remedies after Flores

Article excerpt

My favorite book review of all time appeared in Field and Stream and concerned Lady Chatterley's Lover:

[T]his fictional account of the day-by-day life of an English

gamekeeper is still of considerable interest to out-door-minded

readers, as it contains many passages on pheasant raising,

the apprehending of poachers, ways to control vermin, and

other chores and duties of the professional gamekeeper. Unfortunately,

one is obliged to wade through many pages of

extraneous material in order to discover and savor these sidelights

on the management of a Midlands shooting estate....(1)

I suppose I should feel apologetic, but my reaction to City of Boerne v. Flores(2) was rather similar. I know most constitutional scholars consider the Religious Freedom Restoration Act (RFRA)(3) and the religion clauses the far sexier topic, but what gripped me was the Court's treatment of the Voting Rights Act of 1965 (the "Act").(4)

With respect to the Voting Rights Act, Flores was remarkable for its blend of enthusiasm and silence. Justice Kennedy's opinion relied heavily on the Act as an exemplary illustration of congressional enforcement power under Section 5 of the Fourteenth Amendment.(5) Yet the quartet of "[r]ecent" Voting Rights Act cases on which he relied were all decided at least seventeen years ago.(6) In more contemporary cases involving the key provision of the 1982 amendments to the Act, Justice Kennedy has explicitly left open the question of the Act's constitutionality.(7)

My goal in this Essay is to begin to answer that question and show that the Voting Rights Act, in its current form, remains a proper use of congressional enforcement power. Congress's choice of disparate impact tests in both section 2 and section 5 of the Voting Rights Act represents an appropriate congressional judgment despite the Supreme Court's decisions in City of Mobile v. Bolden(8) and Rogers v. Lodge(9) that only purposeful vote dilution violates the Equal Protection Clause of the Fourteenth Amendment.(10) Sections 2 and 5 of the Voting Rights Act are designed to address prior unconstitutional discrimination, both within and outside the electoral process, as well as to prevent future invidious conduct. Moreover, each is carefully calibrated to insure "congruence and proportionality between the injur[ies] to be prevented or remedied and the means adopted to that end."(11)


Section 5 of the Fourteenth Amendment and Section 2 of the Fifteenth Amendment grant Congress the "power to enforce" the amendments' substantive commands by "appropriate legislation."(12) The question at the heart of Flores was Congress's power to forbid state practices that have only a disparate impact in the service of enforcing constitutional provisions that would directly forbid only purposeful discrimination. In answering this question, the Court quite naturally turned to the quartet of Voting Rights Act precedents because they offer the most complete explanation of congressional enforcement power under the Reconstruction Amendments.

Flores discussed provisions of the Voting Rights Act that banned the use of literacy tests as a prerequisite to voting and that imposed a "preclearance" requirement on certain jurisdictions with a history of depressed political participation, requiring them to obtain federal approval before implementing changes in any laws affecting voting.(13) Flores reaffirmed the propriety of these provisions as responses to "the widespread and persisting deprivation of constitutional rights resulting from this country's history of racial discrimination."(14)

The cases on which the Court relied offer three models of congressionally corrigible invidious discrimination: the internal, the external, and the prospective. …

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