Publication Date

2015

Document Type

Paper

Keywords

Voting Rights Act of 1965, Shelby County v. Holder

Abstract

In Shelby County v. Holder the Supreme Court invalidated key provisions of the Voting Rights Act of 1965 based on Congress’s failure to justify the formula used to determine which jurisdictions would be subject to the Act’s pre-clearance requirement of submitting all changes to voting procedures to the Justice Department for prior approval. This short essay explores one problematic feature of the Court’s analysis: its refusal to consider the legislative record as adequate because it was created to justify the coverage formula after the fact, rather than to facilitate deliberation on the coverage formula before a decision had been made. This reasoning essentially imports from administrative law a rule called the Chenery principle, and as this essay explains, it does so without justification. The differences between administrative and legislative decision making processes compel different treatment by the courts, and treating legislative records like administrative ones, in essence, asks of Congress something it is institutionally ill-equipped to perform. It sets Congress up to fail.

Rights Holder

Margaret B. Kwoka

Provenance

Received from author

File Format

application/pdf

Language

English (eng)

Extent

6 pgs

File Size

228 KB

Publication Statement

Copyright held by the author. User is responsible for all copyright compliance.

Publication Title

Berkeley Journal of Black Law & Policy

Volume

97

First Page

97

Last Page

102

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