Congressional Power to Extend Preclearance: A Response to Professor Karlan

Is the core provision of the Voting Rights Act unconstitutional? Many people now think that the Act\u27s preclearance requirement is invalid, but Professor Karlan is not among them. In part, that is because she is not convinced the problems that originally motivated Congress to impose preclearance have been fully remedied. Professor Karlan points out the many ways section 5 of the Voting Rights Act (VRA) shapes behavior in the jurisdictions subject to the statute--not just by blocking discriminatory electoral changes, but also by influencing less transparent conduct by various political actors operating in these regions. Do not be so sure, she tells us, that opportunities for minority political participation would not deteriorate absent the constraints imposed by section 5. [...] Part I of this Essay parses the factors Professor Karlan identifies as characterizing the preclearance regime, which she claims give rise to distinct congressional power in this realm. This Part explains why the Roberts Court is likely to read each of these factors less expansively than does Professor Karlan. Part II offers an alternative approach through which to explore validity of reauthorization, one that requires adapting the City of Boerne framework to accommodate section 5\u27s status as an operational statute. Part III concludes this commentary