Tom Miles' Post to SCOTUSblog Voting Rights Act Symposium

Online VRA symposium: Social science goes to court
Adam Cox and Thomas Miles
September 13, 2012

The Constitution need not be read to require that Congress amass social scientific evidence before exercising its power to enforce the Fourteenth Amendment.  Surprisingly, however, lower courts confronting a slew of recent challenges to the Voting Rights Act have come close to imposing such a requirement.  If the Supreme Court holds Congress to that standard, the Act is in serious jeopardy.

At issue is the constitutionality of Section 5 of the Voting Rights Act, a provision that singles out some parts of the country, but not others, for more intrusive federal oversight.  The idea behind Section 5 was to target those places where voting discrimination was worst.  The problem, according to Section 5’s challengers, is that Congress has never bothered to ask whether those “covered” jurisdictions have gotten better.  If they are no longer worse, why still single them out?

Confronted with just such a challenge by Shelby County, Alabama, the D.C. Circuit upheld Section 5 of the Voting Rights Act.  Perhaps iron