Balkinization: The Voting Rights Act & Commandeering

The Voting Rights Act & Commandeering

Jason Mazzone

With the Supreme Court poised to decide Shelby County v. Holder, here is a question: why isn't Section 5 of the Voting Rights Act (the pre-clearance provision) a form of unconstitutional commandeering? Let's say a covered jurisdiction wants to shut down a polling location and send voters across town in order to save money. Section 5 prohibits that change unless the covered jurisdiction demonstrates to the satisfaction of the Attorney General (or the district court) that the change does not have a racially discriminatory purpose and will not have a racially discriminatory effect. If the proposed change is rejected, the jurisdiction must keep the polling place open. In other words, the VRA will require the state to operate, staff, and pay for a designated polling place--and the state will lack any ability to refuse the federal command. That would seem to be exactly what Printz and New York (the Court's anti-commandeering cases) forbid.

Is there a relevant distinction? Two possibilities come to mind. (1) Perhaps the anti-commandeering prohibition is confined to Congress's use of a power under Article I (Printz and New York involved federal statutes enacted under the Commerce Clause) and so does not apply to congressional power exercised under the Reconstruction Amendments. (2) Perhaps what matters is that under the VRA state government does have the ability to avoid compliance--through the pre-clearance procedure--and so the state is no more commandeered than is a state subject to a court-issued injunction in response to a finding of a constitutional violation.

Do readers have other thoughts about why the anti-commandeering doctrine does not (or perhaps does) apply to render section 5 unconstitutional?

Posted 12:52 PM by Jason Mazzone [link]

Comments:

Discrimination in voting on the basis of race is unconstitutional. Moving a polling place can be a means of carrying out racial discrimination. The state was already providing the polling place. Requiring the state to prove that the move is not racially discriminatory is not requiring it to do anything it is not already doing.

# posted by

Anonymous : 2:25 PM

Unlike NY or Printz, Section 5 doesn't mandate that states enact or enforce laws the content of which was determined by the federal govt.

Instead, Section 5 merely prohibits states from changing w/o pre-clearance laws the content of which they themsleves determined.

It's thus a conditional negative prohibition rather than an affirmative mandate.

# posted by

Hashim : 2:28 PM

As with the sovereign immunity cases, the Reconstruction Amendments changed the "constitutional" calculus here, even under the principles of current case law. Congress was explicitly given additional power.

Printz noted that judges are treated differently than executive and legislative officials for special constitutional reasons. The same applies to the enforcement of voting rights amendments.

The use of congressional power would still have to be "appropriate," including under the current somewhat hazy congruent and proportional test. If Shelby County gets some sort of win, it is likely that this test will be deemed to have been violated.

# posted by

Joe : 2:31 PM

That said, the distinction I drew breaks down in the not-infrequent case where *some* change is required (e.g., post-census redistricting), such that the state (or a federal court) must adopt a new law. Even there, however, I think the feds could argue that Section 5 is just a prohibition on enacting a new law that's "retrogressive," and that the failure of a state to abide by that prohibition justifies a federal court crafting an interim law.

# posted by

Hashim : 2:33 PM

For federal elections, there's an implicit power to commandeer the states in the "time, place and manner" clause.

# posted by

Mark Field : 4:01 PM

"Printz noted that judges are treated differently than executive and legislative officials for special constitutional reasons."

Those special constitutional reasons being the fact that the case was decided by judges. ;)

# posted by

Brett : 4:40 PM

Given the exception gave somewhat less discretion to judges, the fact Printz was decided by judges might lead some to think if anything, the USSC would be more concerned.

Anyway, seriously, Scalia spelled out other reasons.

# posted by

Joe : 4:50 PM

Foreign websites such as Pirate Bay have the files and are making them available for learning.The use of congressional power would still have to be "appropriate," including under the current somewhat hazy congruent and proportional test. If Shelby County gets some sort of win, it is likely that this test will be deemed to have been violated.

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# posted by

sumaya754 : 10:13 PM

The use of congressional power would still have to be "appropriate," including under the current somewhat hazy congruent and proportional test. If Shelby County gets some sort of win, it is likely that this test will be deemed to have been violated.Those special constitutional reasons being the fact that the case was decided by judges.

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# posted by

Unknown : 12:22 PM

the Reconstruction Amendments changed the "constitutional" calculus here,fifa 14 ps4 coins
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even under the principles of current case law. Congress was explicitly given additional power.

# posted by

Cicy : 4:09 AM