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The Myth of 'Conquered Provinces': Probing the Extent of the Voting Rights Act's Intrusion on State and Local Autonomy

81 Pages Posted: 12 Dec 2010 Last revised: 3 Oct 2011

Michael Halberstam

Columbia Law School, Center for Law and Economic Studies

Date Written: December 15, 2010

Abstract

This Article advances the controversial thesis that the preclearance provision under section 5 of the Voting Rights Act (VRA) is not as intrusive as is generally assumed. It shows that the architecture of the preclearance regime is consistent with “new institutionalist” models of administration that favor devolution and learning through monitoring and disclosure. The Article thereby counters the unchallenged view - articulated in Supreme Court jurisprudence, the legislative record, and scholarship - that the U.S. Department of Justice’s authority to object to state and local election law changes under the preclearance regime has amounted to a heavy-handed intervention into state and local lawmaking processes.

More immediately, the Article speaks to the Supreme Court’s likely reconsideration of the constitutionality of the VRA as no longer “congruent and proportional to an ongoing constitutional violation” under the standard advanced in City of Boerne v. Flores. It argues that the purported “federalism costs” of the preclearance regime should not weigh as heavily in the constitutional balance as many have suggested.

Keywords: Voting Rights Act, constitutional law, federalism, localism, civil rights, new institutionalism

Suggested Citation

Halberstam, Michael, The Myth of 'Conquered Provinces': Probing the Extent of the Voting Rights Act's Intrusion on State and Local Autonomy (December 15, 2010). Hastings Law Journal, Vol. 62, 2011; Buffalo Legal Studies Research Paper No. 2012-025. Available at SSRN: https://ssrn.com/abstract=1707590

Michael Halberstam (Contact Author)

Columbia Law School, Center for Law and Economic Studies ( email )

435 W. 116th Street, Box A-22A
New York, NY 10027
United States
646-285-6281 (Phone)

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