This article by Franita Tolson is published by The Election Blog. Here is an excerpt:
Stanford Law Review recently posted a short essay that I wrote for the journal’s symposium on “Safeguarding the Fundamental Right to Vote.” The symposium includes a really terrific set of essays from Sam Issacharoff, Yasmin Dawood, Michael Kang, Michael Morley, and Rick Pildes. The entire symposium is worth checking out.
My essay challenges the notion of judicial supremacy underlying the Supreme Court’s jurisprudence under Section 5 of the Fourteenth Amendment. In the essay, I argue that the congruence and proportionality standard should not apply to federal voting rights legislation because the right to vote is both a constitutional right, subject to judicial regulation, and a political right, aspects of which are beyond the purview of the courts. The link to the essay is here. Here is the abstract:
This short essay argues that the congruence and proportionality test of City of Boerne v. Flores—which the U.S. Supreme Court applies to laws passed pursuant to Section 5 of the Fourteenth Amendment—should not apply to federal voting rights legislation. This test is inapplicable because the right to vote, although a judicially protected constitutional right, is also a political right beyond the purview of the courts. The right to vote implicates a number of constitutional provisions that are direct grants of power to Congress, the exercise of which can directly conflict with the notions of judicial supremacy that dominate our legal system.
Read the full article here.