Thinking Through the Constitutionality of Section 2

Several commenters asked me to expand a bit on the constitutional questions raised by Section 2 of the Voting Rights Act. While I doubt that I can do so with a thoroughness that would satisfy the Volokh commentariat (can anything satisfy the Volokh commentariat?), I thought I’d lay out a few more thoughts. I don’t actually have a strong view on the ultimate answer — it strikes me as a hard case. But here’s how I’d think about it:

The first step is to figure out what is actually protected by Section One of the Fifteenth Amendment, which says “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” The Court has said this applies only to restrictions that are discriminatory on their face or else “motivated by a discriminatory purpose,” which pretty much mirrors the standard from equal protection cases. Section 2 is much broader and turns on discriminatory effects. I don’t know what I think of this — the insistence on discriminatory intent has always seemed a little underproven to me; on the other hand, I haven’t seen a really persuasive coherent alternative theory of discrimination either.

At any rate, however that turns out, the second step is to figure out how far Congress is allowed to expand beyond whatever the answer is to step one. On one hand, you have evidence that Section 2 of the Fifteenth Amendment, like McCulloch, gives Congress a great deal of deference in its choice of enforcement. On the other, you have the textual point Justice Scalia made in Tennessee v. Lane:

One does not, within any normal meaning of the term, ‘enforce’ a prohibition by issuing a still broader prohibition directed to the same end. One does not, for example, ‘enforce’ a 55-mile-per-hour speed limit by imposing a 45-mile-per-hour speed limit–even though that is indeed directed to the same end of automotive safety and will undoubtedly result in many fewer violations of the 55-mile-per-hour limit. … Nothing in §5 allows Congress to go beyond the provisions of the Fourteenth Amendment to proscribe, prevent, or ‘remedy’ conduct that does not itself violate any provision of the Fourteenth Amendment. So-called ‘prophylactic legislation’ is reinforcement rather than enforcement.

I’m continuing to do my own research on the scope of the Reconstruction Amendments’ enforcement clauses, and don’t yet have a firm view on this.

The third step — if you are thinking about a Court’s treatment of Section 2 — is to figure out what the standard of judicial review is. This is not quite the same as the former question. For instance, one might agree with Justice Scalia that broadening a prohibition is not the same thing as “enforcing” it, but one might also think that courts should defer to Congress when the provision has a range of plausible meanings — a point Michael McConnell famously made (Hein link) in an excellent article explaining why the Religious Freedom Restoration Act should have been upheld.

After Shelby County, I suppose you also have to wonder about the role of geographic tailoring. Prior cases have emphasized that geographic tailoring is very helpful to upholding an enforcement statute — United States v. Morrison criticized the Violence Against Women Act for because it “applie[d] uniformly throughout the Nation.” Similar, City of Boerne v. Flores praised Section 5 for its geographic restrictions. And Justice Scalia has said that he would go further, essentially requiring all “prophylactic §5 legislation” to be limited “only upon those particular States in which there has been an identified history of relevant constitutional violations.” On the other hand, Shelby County also confirms that geographic tailoring that the Court finds improper can even further doom a statute. Section 2 applies nationwide, which is a mixed blessing under the current doctrine, which may or may not be correct.

Finally, you have to wonder about whether Section 2 itself requires or encourages other violations of the Fifteenth Amendment. This is the issue that has most frequently caused Section 2 to be narrowly construed (as mentioned in my previous post). Section 2 requires the government to be wary of the failure to create districts where racial minorities have a local majority of the vote, which in turn forces governments to consider race in situations where they otherwise wouldn’t. At the same time, that’s inherently true of any anti-discrimination statute that creates an effects test (as Justice Scalia noted in his concurrence in Ricci v. DeStefano) and it raises a very deep question of equal protection that the Court has not resolved.

[Okay, and extra-finally to directly answer a couple of questions from the prior thread– 1, it’s not clear whether these challenges would have to be as-applied or whether they could be facial. The Court has already narrowly construed Section 2 as applied to particular scenarios because of the race-discrimination concerns; but an enumerated powers challenge to the statute might be facial — the Court’s theory of facial enumerated powers challenges is not fully worked out; 2, one could actually imagine that Section 2 is more constitutionally vulnerable than Section 5, because it lacks any time limit or geographic tailoring, and because it affirmatively requires the states to change a number of once-traditional practices, whereas Section 5 preserves the status quo; 3, no, I’m not writing these posts out of a hidden agenda to undermine the Voting Rights Act. I just think it’s helpful to think through the constitutional issues without assuming that people that disagree with you are acting in bad faith.]