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Congressional Power to Extend Preclearance: A Response to Professor Karlan

32 Pages Posted: 25 Apr 2007  

Ellen D. Katz

University of Michigan Law School


Is the core provision of the Voting Rights Act unconstitutional? Many people think the Act's preclearance requirement reauthorized by Congress last summer is invalid, primarily because jurisdictions subject to the statute no longer engage in the sort of blatantly unconstitutional conduct that prompted Congress to enact the statute forty years ago. Defenders of preclearance typically counter that the record Congress amassed to support reauthorization documents the persistence of unconstitutional conduct of sufficient scope for preclearance to remain a valid remedy.

This Comment evaluates this claim, and the more robust vision of congressional power Professor Pamela Karlan presents in defense of reauthorization. She posits that a convergence of factors renders the power Congress exercised when it reauthorized VRA plenary, or at least close to it. Like Professor Karlan, I think that the legality of reauthorization should not hinge on the record of unconstitutional conduct Congress documented. In my view, however, it is not the factors Professor Karlan identifies, but instead the VRA as an operational statute that distinguishes it from other statutes for which an underlying record of unconstitutional conduct was required. And yet, I am not convinced that Congress enjoys, or should enjoy, as much power as Professor Karlan suggests, and, as a predictive matter, I would be surprised if a majority of the Roberts Court will think so either. This Comment offers a third approach to evaluate the validity of reauthorization, one that seeks to predict whether unconstitutional conduct would resume were the constraints of the VRA lifted.

Keywords: Voting Rights Act, Constitutional Law, Election Law

JEL Classification: D72, H70, J70, J71, J78, K41

Suggested Citation

Katz, Ellen D., Congressional Power to Extend Preclearance: A Response to Professor Karlan. Houston Law Review, Vol. 44, No. 1, p. 33, 2007; U of Michigan Public Law Working Paper No. 79. Available at SSRN:

Ellen Katz (Contact Author)

University of Michigan Law School ( email )

625 South State Street
LR 960
Ann Arbor, MI 48109-1215
United States
734-647-6241 (Phone)

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