Editorials: Shelby County v. Holder: Why Section 2 now renders Section 5 unconstitutional | Hashim Mooppan/SCOTUSblog
The Fourteenth and Fifteenth Amendments proscribe intentional racial discrimination in voting, and Section 2 of the VRA already vigorously “enforces” those constitutional proscriptions by imposing a prophylactic nationwide ban on voting practices that are judicially determined to cause discriminatory “results.” Accordingly, Section 5 of the VRA – which additionally imposes an extraordinary preclearance regime on all voting changes in selectively covered jurisdictions – can be justified as an appropriate “enforcement” measure only insofar as it targets potentially unconstitutional voting practices that are somehow beyond the effective reach even of Section 2’s ordinary anti-discrimination litigation. This is common sense, but it is much more than that. The Supreme Court consistently has relied upon this limited remedial justification for Section 5 when upholding and construing prior versions of the statute. Indeed, the Court has strongly suggested that exceeding this narrow supplemental function would impose excessive burdens on covered jurisdictions and could require excessive consideration of race in electoral decision making, thereby drawing Section 5 into conflict with the very constitutional provisions that it purports to “enforce.”