Hastings Law Journal


This Article advances the controversial thesis that the preclearance provision under section 5 of the Voting Rights Act (VRA) is not as intrusive as is generally assumed. It shows that the architecture of the preclearance regime is consistent with “new institutionalist” models of administration that favor devolution and learning through monitoring and disclosure. The Article thereby counters the unchallenged view— articulated in Supreme Court jurisprudence, the legislative record, and scholarship— that the U.S. Department of Justice’s authority to object to state and local election law changes under the preclearance regime has amounted to a heavy-handed intervention into state and local lawmaking processes. More immediately, the Article speaks to the Supreme Court’s likely reconsideration of the constitutionality of the VRA as no longer “congruent and proportional to an ongoing constitutional violation” under the standard advanced in City of Boerne v. Flores. It argues that the purported “federalism costs” of the preclearance regime should not weigh as heavily in the constitutional balance as many have suggested.

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