The debate over the constitutionality of Voting Rights Act preclearance has focused almost entirely on whether it lies within Congress’s power to enforce the Fourteenth and Fifteenth Amendments to the Constitution. That’s understandable, especially since the Supreme Court’s cert. grant in Shelby County v. Holder is limited to Congress’s authority under these provisions. There is, however, another provision of the Constitution that authorizes many – though not all – applications of the VRA’s preclearance requirements. Under the Elections Clause of the Constitution, Congress has broad authority to regulate congressional elections. Given that Shelby County has brought a facial challenge to Sections 4(b) and 5 of the VRA, the existence of an alternative basis for upholding some applications of the statute shouldn’t be overlooked. The Elections Clause is sufficient to prevent facial invalidation of the statute, regardless of how the Fourteenth and Fifteenth Amendment issues are resolved.
Some background on the Elections Clause may be helpful in understanding its relevance to the constitutional issue in Shelby County. The text of Article I, Section 4, Clause 1 of the Constitution provides:
The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.
The Elections Clause has long been understood to give Congress broad power over the regulation of congressional elections. As set forth in this amicus brief from seven election law scholars, including me, the Framers wanted to make sure that state and local officials couldn’t undermine federal elections.