The Lawfulness of Section 5 -- and Thus of Section 5

Abstract

Few law review articles try to make their central legal argument in their very title - via title words that do not merely describe the argument that will be made in the body of the article, but actually make the basic legal argument, complete with legal reasoning ("and Thus"). But this is such an article. To unpack, briefly, this title's (and this article's) argument: section 5 of the Voting Rights Act (VRA) is an obviously appropriate, and thus lawful, congressional enactment pursuant to section 5 of the Fourteenth Amendment, which explicitly empowers Congress to "enforce, by appropriate legislation, the provisions of this article" - that is, the Fourteenth Amendment itself. Those who oppose section 5 of the VRA claim that its regime of selective preclearance - whereby certain states with sorry electoral track records must get preapproval from federal officials in order to do things that other states with cleaner electoral track records may do automatically - is not appropriate, not proper, not proportional.