31 Pages Posted: 30 May 2015 Last revised: 4 Aug 2015
Date Written: May 28, 2015
In Shelby County v. Holder, the Court struck down an important provision of the Voting Rights Act, section 4, on federalism grounds. The Court argued that Congress no longer had the power to enact section 4 because of the “federalism costs” imposed by the Act and because the Act violated “basic principles” of federalism. Unfortunately, the Court failed to articulate the costs to federalism imposed by the Act, much less conduct a cost-benefit analysis in order to determine whether the benefits of the Act outweighed its costs. Moreover, the Court failed to discuss whether the Reconstruction Amendments ought to matter at all to the federalism debate. In this Essay, we ask three basic questions in response to Shelby County. First, what does the Court mean by “federalism costs,” and why have these costs undermined the constitutionality of the VRA? Second, does the failure to discuss Reconstruction and the Reconstruction Amendments undermine the Court’s decision in Shelby County? And third, we ask how should we understand the utility of federalism in the context of race and voting. We suggest that if one purpose of federalism is that it enables minorities to engage in self-rule, we should ask whether federalism enables racial minorities to engage in self-rule.
Keywords: Race, federalism, voting rights, VRA, Shelby County
Suggested Citation: Suggested Citation
Charles, Guy-Uriel E. and Fuentes-Rohwer, Luis E., Race, Federalism, and Voting Rights (May 28, 2015). Duke Law School Public Law & Legal Theory Series No. 2015-24; Indiana Legal Studies Research Paper No. 321. Available at SSRN: https://ssrn.com/abstract=2611795 or http://dx.doi.org/10.2139/ssrn.2611795