Proportional Voting Through the Elections Clause: Protecting Voting Rights Post-Shelby County

Abstract

The Voting Rights Act passed fifty years ago and its success at curbing electoral discrimination is unquestioned. Section 5’s preclearance, which requires specific jurisdictions to seek federal preapproval of election laws, was central to this success. Yet the Supreme Court, in Shelby County v. Holder, invalidated the formula that selected preclearance jurisdictions. Without the formula, preclearance can no longer protect against voting discrmination. Shelby County v. Holder compels rethinking voting rights legislation.

This Comment advocates for the Elections Clause as the new foundation for voting rights legislation. The Clause grants Congress authority to regulate the "Times, Places and Manner of holding Elections for Senators and Representatives." The Supreme Court has interpreted the Clause to give Congress broad authority in dictating all manner and mode of federal elections. Legislation that is permissible under the Clause likely includes regulations mirroring preclearance. This Comment argues that one promising variety of such regulation is a national proportional voting system able to combat gerrymandering. This proposal highlights that through the Elections Clause, Congress can guarantee continued voting rights protections.

62-1-5
By uclalaw