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Section 5 of the Voting Rights Act of 1965 After Boerne: The Beginning of the End of Preclearance? |
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Victor Andres Rodriguez
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Congress enacted the Voting Rights Act of 1965 (the "Act")
to combat pervasive and systemic discrimination against minority
voters. Section 5 of the Act requires state and local jurisdictions
with a history of voting discrimination to submit any new changes
in voting laws or procedures to the U.S. Attorney General for
approval before implementing them. This requirement, known as
"preclearance," is the most important provision of
what has been described as the most effective civil rights legislation
ever adopted. However, Section 5's future is in doubt for several
reasons. First, the Supreme Court has, in a recent line of cases
starting with City of Boerne v. Flores, 521 U.S. 507 (1997),
limited the scope of Congress's power to enact civil rights
legislation. Second, Section 5 is due to expire in 2007. This
Comment assesses the potential challenges to Section 5's constitutionality
in light of the Court's recent decisions and discusses the provision's
prospects for reauthorization in 2007. Specifically, the Comment
addresses the federalism and separation-of-powers concerns that
were raised when Section 5 was initially enacted and that have
recently gained sway with the Court. The Comment concludes that
Section 5, if challenged today, would meet the Court's test
for civil rights legislation. The Comment also concludes that
Section 5 should be reauthorized and would be held constitutional
if challenged after reauthorization. |
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Copyright © 2003] by California
Law Review, Inc. |
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