71 Pages Posted: 7 Oct 2004
New federalism's premise is that the Courts are the ultimate arbiter of Congress's ability to use its Section 5 powers to enforce Section 1 of the Fourteenth Amendment. This Article argues that while this principle survives the Supreme Court's recent decision in Tennessee v. Lane, the rules have been changed for cases involving fundamental rights. In Lane, the Court's review of Congress' justifications and constitutional bases for passing Title II of the Americans with Disabilities Act was more relaxed than in previous new federalism cases. While Lane itself does not justify this departure, this Article suggests that the doctrinal and theoretical justification for this shift is that the Court should give a presumption in favor of the validity of Congressional abrogation of state sovereign immunity in cases involving fundamental rights.
This Article applies this view of Lane to a future category of ADA Title II fundamental rights litigation - cases involving the right to vote for people with disabilities. Although earlier new federalism cases would compel a different conclusion, after Lane, Courts should hold that the ADA validly abrogates the States' sovereign immunity in Title II voting cases. This has implications for the whole range of Section 5 legislation.
Finally, the disability rights community has criticized Lane for providing insufficient clarity for future Title II cases. This application of Lane to voting responds to that criticism, showing how the presumption in fundamental rights cases is sufficiently strong as to discourage needless litigation.
Keywords: Federalism, disability, voting
JEL Classification: K19, K30, K41
Suggested Citation: Suggested Citation
Waterstone, Michael Evan, Lane, Fundamental Rights, & Voting. Alabama Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=600261