Download this Paper Open PDF in Browser

Congressional Enforcement of Affirmative Democracy Through Section 2 of the Voting Rights Act

32 Pages Posted: 21 Oct 2009 Last revised: 18 Feb 2012

Michael J. Pitts

Indiana University Robert H. McKinney School of Law

Date Written: 2005

Abstract

The constitutionality of Section 2 has been questioned by a number of commentators over the past several years. In this Essay, I argue that even under the Rehnquist Court's precedents, Section 2 is unquestionably constitutional. The Essay first explores a macro-level theory that racial discrimination in voting is different both from an equal protection perspective and a congressional enforcement power perspective. This difference will allow for the greater use of race-based remedies to benefit racial minorities when it comes to voting matters and will allow Congress greater latitude to use its enforcement power when it seeks to eradicate racial discrimination in voting. This difference, however, has limits, and these limits are that Congress cannot pass laws that violate separation of powers principles by completely subverting the Court's idea of the substance of constitutional rights and that Congress cannot pass laws that violate federalism principles by overly compromising the autonomy of state and local governments. I argue that Section 2 violates neither of these limits.

Keywords: Voting rights, civil rights, racial discrimination, enforcement power, Fourteenth Amendment, Fifteenth Amendment, affirmative action, democracy

Suggested Citation

Pitts, Michael J., Congressional Enforcement of Affirmative Democracy Through Section 2 of the Voting Rights Act (2005). Northern Illinois University Law Review, Vol. 25, 2005. Available at SSRN: https://ssrn.com/abstract=608661

Michael Pitts (Contact Author)

Indiana University Robert H. McKinney School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States

Paper statistics

Downloads
48
Abstract Views
872