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.”
Yet, in two important ways, Congress flouted the Court’s guidance when it reauthorized and amended Section 5 in 2006. First, and most obviously, Congress retained the old coverage formula, which does not properly target the jurisdictions where Section 2 is especially inadequate now, but rather traps the jurisdictions that were the most recalcitrant discriminators more than three decades ago. Second, and more subtly, Congress adopted a new substantive standard, which does not properly target the narrow voting changes that used to be especially problematic to redress through Section 2, but rather confers sweeping racial preferences for minority voters.
The government refuses to grapple with either of these serious problems in defending the 2006 version of Section 5. It ignores that Section 2 is now no less effective in the old covered jurisdictions, and it white-washes the unduly race-conscious nature of the new substantive standard.
Given that neither Congress nor the government has even attempted to follow the Court’s constitutional teaching, the Court has no choice but to exercise its constitutional duty to invalidate the current version of Section 5. The Court’s lessons can be disregarded no longer.