THE VOTING RIGHTS ACT AND THE FIFTEENTH AMENDMENT STANDARD OF REVIEW
Abstract
One of the most successful pieces of civil rights legislation in American History, the
Voting Rights Act of 1965 helped achieve a level of black enfranchisement that had seemed
impossible since the ratification of the Fifteenth Amendment nearly a century earlier.
Indispensable to the VRA’s success is Section 5, which turns the tables on jurisdictions deemed
to be the worst offenders by creating a presumption of racial discrimination that must be
overcome by “preclearing” any change in voting practices with federal authorities.
Although the VRA has withstood a number of constitutional challenges, the Supreme
Court recently granted certiorari to determine whether the VRA’s 2006 reauthorization exceeds
Congress’s authority to enforce the Fourteenth and Fifteenth Amendments. Still unresolved is
the standard of review the Court should apply in assessing the constitutionality of Section 5,
which was enacted under the Fifteenth Amendment.
This Article argues that if the Court applies the well-established Fourteenth Amendment
“congruence and proportionality” standard, this will be a rather remarkable doctrinal
development. Instead, legislation enforcing the Fifteenth Amendment should be subject to a
more deferential standard for several reasons. First, there is no reason why the similarities in the
two amendments’ enforcement clauses must necessarily lead to identical enforcement powers.
Second, the Supreme Court has not, in fact, applied the Fourteenth Amendment standard to
Section 5. Third, because the subject matter of the Fifteenth Amendment is so much narrower
than that of the Fourteenth, the Court need not worry about granting more deference to Congress
in enforcing it. Finally, to prevent the Fifteenth Amendment from being swallowed by the
Fourteenth, the Court should decline to conflate the applicable standards of review.