Federalism, Preclearance, and the Rehnquist Court

Abstract

The Article explores the Rehnquist Court's seemingly contradictory assessment of "federalism costs" in recent decisions construing section 5 of the Voting Rights Act. Reno v. Bossier Parish, 520 U.S. 471 (1997), and Reno v. Bossier Parish, 528 U.S. 320 (2000), narrowly construe the VRA's preclearance provision and invoke federalism concerns as justification. Lopez v. Monterey County, 525 U.S. 266 (1999), by contrast, interprets the preclearance provision broadly, acknowledging that "substantial federalism costs" result, but affirming as constitutionally permissible the infringement that the section 5 preclearance process "by its nature" effects on state sovereignty. This Article seeks to explain why the Court understood the federalism costs implicated in the Bossier Parish cases to be preclusively high while it viewed the costs at issue in Lopez to be the necessary and justifiable result of implementing the VRA. The Rehnquist Court has long been convinced that the Department of Justice has systematically abused its authority in the preclearance process and thereby exacerbated the federalism costs that inhere in the VRA. The Bossier Parish cases involved DOJ's refusal to preclear a districting plan that the agency deemed to contain an insufficient number of majority-minority districts, and thus they presented the Court with the type of DOJ conduct that the justices have repeatedly found most objectionable. The Bossier Parish decisions rejected the Department's position on preclearance, and construed section 5 narrowly in order to curb the opportunities for institutional overreaching by the Department. Lopez, by contrast, did not directly implicate conduct by DOJ, and instead addressed the question over which the Department has no authority, namely whether the disputed changes were subject to preclearance at all. While the decision renders more conduct subject to preclearance and hence to review by DOJ, Lopez required the Court neither to review a specific decision made by the Department nor to confront the prospect that DOJ would implement the construction of the statute adopted. The Court, consequently, was able to construe section 5 broadly without directly facing concerns about DOJ overreaching, and thereby to embrace the resulting federalism costs as a justified consequence of implementing congressional intent in the VRA.