Academic highlight: Amar on the constitutionality of the Voting Rights Act

The Voting Rights Act (VRA) requires that certain states with a history of discrimination in voting obtain preapproval from federal officials before making changes in their voting procedures. The VRAs supporters argue that this preclearance provision is a lawful exercise of Congresss powers under the Reconstruction Amendments, while its opponents claim that targeting some states and not others goes beyond Congresss powers to remedy discrimination — a question that the Supreme Court considered yesterday at oral arguments in Shelby County v. Holder. In a provocative essay in the Harvard Law Review, Professor Akhil Reed Amar argues that the Voting Rights Acts selective preclearance requirement must be constitutional because the Reconstruction Amendments themselves became law through a similar process of selective preclearance in which some southern states were required to ratify these Amendments to regain their positions in Congress.

Amars essay outlines the historical background to the Reconstruction Amendments, focusing on the special conditions that the ex-gray states had to meet before they could re-take their seats in Congress. For example, these states had to obtain federal approval for new state constitutions in which they were required to establish race-neutral voting systems, and they were required to ratify the Reconstruction Amendments. In contrast, the northern states were not obligated to abolish racist election practices or ratify the Fourteenth or Fifteenth Amendments. Although some challenged the constitutionality of these requirements, Congress claimed the authority to force reforms on those states with dismal democratic track records under the Constitutions Republican Government Clause. Amar argues that the same logic justifies Congresss enactment of the Voting Rights Act a century later. He writes: “If sweeping congressional power to enforce voting rights is somehow unconstitutional, then the Constitution itself is unconstitutional.”

Amars essay is interesting and enlightening, but not entirely persuasive. The Constitution itself was drafted through a secretive, and some claim illegal, process, and yet that fact cannot justify legislation enacted using similarly questionable procedures. Nonetheless, the historical parallels between the ratification of the Reconstruction Amendments, in which some states ratified these Amendments pursuant to “selective preclearance” procedures accompanying their readmission, and the selective preclearance required by the Voting Rights Act, remind us that in both cases Congress was responding to democratic crises that would not resolve themselves.