Congressional Power to Reenact Section 5 of the Voting Rights Act: The Evidentiary Quandary

Much of the current debate over the preclearance provisions contained in section 5 of the Voting Rights Act concerns the important policy question whether Congress should renew it. This paper turns to a question in the debate that logically precedes but in practical terms would follow (though court challenge) a congressional decision to reenact section 5: does Congress have the power to do so?Beginning with South Carolina v. Katzenbach (1966), the United States Supreme Court has repeatedly upheld section 5 and other provisions of the Act as permissible exercises of congressional enforcement power. These cases, however, predate the Supreme Court's "New Federalism" revolution. As part of that revolution, the Court, in a series of recent cases has greatly restricted the ability of Congress to pass laws regulating conduct of the states under its enforcement powers granted in Section Five of the Fourteenth Amendment, which the Court has read as coextensive with its enforcement powers under the Fifteenth Amendment. Moreover, in Board of Trustees v. Garrett (2001), the Court made clear that it will search for an adequate evidentiary record to support a congressional determination that states are engaging in unconstitutional conduct so as to justify congressional regulation of the states. Some of that clarity on the evidentiary question disappeared in the Court's 2003 decision, Nevada v. Hibbs.Part I of this chapter surveys the background legal landscape facing those who wish to defend anticipated preclearance reenactment as an appropriate exercise of congressional power under the Fourteenth or Fifteenth Amendments. Part II then turns to application of the new federalism cases to the question of congressional power to reenact the preclearance provisions. The evidentiary requirement imposed in these new federalism cases creates significant hurdles for a court to uphold a reenacted section 5, even though, under the recent Hibbs case, the evidentiary burden on Congress will be slightly alleviated because a renewed section 5 would combat racial discrimination. In 1965 and even in 1982 Congress could point to significant acts of intentional racial discrimination by covered states to support preclearance provisions. Today, Congress would be hard-pressed to find widespread evidence of such discrimination. Some commentators have looked to Department of Justice preclearance statistics to find sufficient evidence of a potential for constitutional violations to support section 5 reenactment by Congress. A closer look at the DOJ preclearance statistics, however, offers little support for those who wish to build an evidentiary record to support reenactment of section 5. Other commentators have looked to private acts of discrimination as supporting congressional power to reenact preclearance provisions. The argument, though creative, probably cannot bear the weight that commentators have put on it. Part III concludes in a more speculative vein with a look at an alternative basis for congressional power to reenact preclearance: the Guarantee Clause. Article IV of the Constitution provides that the United States shall guarantee to each state a Republican form of government. It is an open question whether Congress could reenact the preclearance provisions under the Guarantee Clause and, more provocatively, by doing so insulate the provisions from challenge in the courts under the theory that Guarantee Clause cases raise non-justiciable political questions.