What if Congress had reauthorized the Voting Rights Act for just 5 years?

Did the fact that a law was on a 25-year reauthorization schedule just become a reason for invalidating it? Would the Court have had less reason to invalidate the VRA if it were authorized for just 10 years? 5 years? We doubt that the length of the authorization would have made much difference in this case with this Court, but it is interesting to speculate on whether Shelby County v. Holder will be cited by future courts to justify using a law’s period of authorization as one criterion in evaluating whether it has a rational basis.

More from Scott Adler and John Wilkerson on the Shelby decision.  See also this earlier post.

One Response to What if Congress had reauthorized the Voting Rights Act for just 5 years?

  1. Sam Bagenstos July 3, 2013 at 2:42 pm #

    Since City of Boerne v. Flores, the Court has treated the period of authorization of a statute as relevant to — though not necessarily dispositive of — whether the statute is proper legislation to enforce the Fourteenth Amendment. Boerne distinguished RFRA, which had no time limit on its authorization, from the Voting Rights Act’s preclearance requirement, which did (among other differences). The Court said: “This is not to say, of course, that § 5 legislation requires termination dates, geographic restrictions, or egregious predicates. Where, however, a congressional enactment pervasively prohibits constitutional state action in an effort to remedy or to prevent unconstitutional state action, limitations of this kind tend to ensure Congress’ means are proportionate to ends legitimate under § 5.” So I don’t think this aspect of Shelby County represents any particular innovation in the doctrine.