Congressional Enforcement of Affirmative Democracy Through Section 2 of the Voting Rights Act

One might instinctively think, as suggested by several commentators, that section 2 of the Voting Rights Act, a race-based remedy imposed by Congress on state and local governments, has a good chance of being declared unconstitutional by the Supreme Court. This is because, in recent years, the Court has shown a general hostility to race-based remedies and to laws that impose federal requirements on state and local governments. The author, however, identifies three core values to demonstrate that section 2 remains clearly constitutional even in light of these trends. The first is that racial discrimination in voting is a context in which the Court will allow Congress greater leeway to impose race-based requirements on state and local governments; the second is that section 2 comes pretty close to conforming to the Court's view of what amounts to a proper use of a race-based remedy; and the third is that section 2 does not amount to a much greater intrusion on state and local governments than the Constitution itself.