Equal Sovereignty As a Right Against a Remedy
38 Pages Posted: 24 Nov 2015
Date Written: November 24, 2015
This Article’s subject is federalism’s limits upon federal remedies. It aims at a new way to understand and to critique Shelby County v. Holder. In Shelby County the Supreme Court halted preclearance under Section 5 of the Voting Rights Act by striking down Section 4’s formula for identifying jurisdictions that had to preclear changes to their election laws. The Court held that Congress had violated the “equal sovereignty” of the covered states in 2006 when it reauthorized the Section 5 preclearance remedy without changing Section 4’s coverage formula. This Article argues that Shelby County’s equal sovereignty holding created a new species of a “right against a remedy.” This newfound right against a remedy is unusual when compared to other constitutional rights that may be invoked against remedies. Unlike other rights against remedies, Shelby County’s equal sovereignty doctrine does not take seriously countervailing concerns about the adequacy of the system of remedies for vindicating constitutional rights. The Court neither acknowledged nor explained this unusual distinction between equal sovereignty and individual rights that limit remedies. One possibility is that Shelby County’s rule is peculiar to cases about race, as the majority made no secret of its assumption that America has entered a post-racial era.
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