[EL] The curious disappearance of Boerne and the future jurisprudence of voting rights and race : SCOTUSblog

[Ellen Katz]

My two cents on the topic is that precedent (at least until yesterday)
recognized Congress to have more discretion when regulating at the
intersection of race and the right to vote than elsewhere.  The way in
which Boerne preserved Katzenbach v Morgan made it difficult to say that
the distinction was simply a 15A v. 14A one.  Recall that in Boerne Kennedy
approved a reading of Morgan that recognized Congress’s power to ban NY’s
literacy test as means to get at prospective (undocumented) discrimination
against Puerto Rican residents in public services. Congress could protect
access to the ballot box so that minority voters could protect themselves
in other realms, or at least that appeared to be the view back in the
Rehnquist Court.


On Wed, Jun 26, 2013 at 1:31 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

> I'm on vacation without access to everything but others have written about
> why the 15 th amendment power should be broader.  Ellen Katz I think for
> one.
>
> Rick Hasen
>
> Sent from my iPhone. Please excuse typos.
>
> On Jun 26, 2013, at 2:09 AM, "Jonathan Adler" <jha5 at case.edu> wrote:
>
> > Rick --
> >
> > Interesting post.  Here's my question.  Is there any reason to assume
> that
> > the test governing Congressional exercises of the 15th Amendment's
> > enforcement power should be different than for the 14th Amendment?  That
> > is, if one believes Boerne is correct, what would the reason be for not
> > applying a similar approach to the 15th Amendment?  I recognize that
> > Boerne may be wrong, but the question would be the same.  Assume the
> Court
> > should apply a different test for Section 5 of the 14th, why should the
> > test for a parallel enforcement provision adopted contemporaneously be
> any
> > different?
> >
> > JHA
> >
> > ------
> > Jonathan H. Adler
> > Johan Verheij Memorial Professor of Law
> > Director, Center for Business Law & Regulation
> > Case Western Reserve University School of Law
> > 11075 East Boulevard
> > Cleveland, OH 44106
> > ph) 216-368-2535
> > fax) 216-368-2086
> > cell) 202-255-3012
> > jha5 at case.edu
> > http://www.jhadler.net
> > SSRN: http://ssrn.com/author=183995
> >
> >
> > -----Original Message-----
> > From: law-election-bounces at department-lists.uci.edu
> > [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick
> > Hasen
> > Sent: Tuesday, June 25, 2013 7:20 PM
> > To: law-election at UCI.edu
> > Subject: [EL] The curious disappearance of Boerne and the future
> > jurisprudence of voting rights and race : SCOTUSblog
> >
> >
> >
> http://www.scotusblog.com/2013/06/the-curious-disappearance-of-boerne-and-
> > the-future-jurisprudence-of-voting-rights-and-race/
> >
> >
> > Rick Hasen
> >
> > Sent from my iPhone. Please excuse typos.
> > _______________________________________________
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>



-- 
Ellen D. Katz
Ralph W. Aigler Professor of Law
University of Michigan Law School
625 S. State Street
Ann Arbor, MI 48109
(734) 647-6241

Online papers:  http://ssrn.com/author=265855
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