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27 J.L. & Pol. 357 (2011-2012)
The Times, They are Changing: The VRA is No Longer Constitutional

handle is hein.journals/jlp27 and id is 361 raw text is: Note: The Times, They Are Changing: The VRA Is No Longer Constitutional I. INTRODUCTION The Voting Rights Act of 1965 (VRA) was the congressional response to widespread, intentional voting discrimination against African- Americans in the South. Due in significant part to the VRA's success, the South has made tremendous progress in terms of minority participation in the electoral process and increased minority representation in government. Despite these significant improvements, Congress reauthorized the VRA in 2006 for another twenty-five years. This paper will demonstrate that Congress exceeded its enforcement authority under the Fifteenth Amendment when it reauthorized the VRA. Thus, the VRA is no longer constitutional. This paper will begin by exploring the historical circumstances and judicial decisions surrounding the enactment of the VRA and its subsequent reauthorizations. The paper will first discuss how the 2006 reauthorization of the VRA is subject to City of Boerne v. Flores' congruence and proportionality framework. I will begin by explaining the City of Boerne's framework. Then, I will establish that the Supreme Court has adhered to it in every subsequent case evaluating federal law enacted under Congress' Fourteenth and Fifteenth Amendment enforcement authority. Next, I will demonstrate how City of Boerne and its progeny make clear that the VRA is subject to congruence and proportionality review. I will conclude this section by underscoring how the unique federalism concerns raised by Section 5 of the VRA demand adherence to the City ofBoerne framework. Applying City of Boerne's congruence and proportionality review, I will reveal that Section 5's preclearance obligation and Section 4(b)'s coverage formula are no longer appropriate means of enforcing the Fifteenth Amendment. First, I will demonstrate why previous authorizations of the VRA were appropriate congressional actions. I will then establish that the 2006 legislative record fails to show the existence of pervasive voting discrimination and electoral gamesmanship that necessitated the enactment of Section 5. Further, I will explore the evidence Congress relied on in 2006, which failed to demonstrate pervasive discrimination in violation of the Fifteenth Amendment. 357

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