Lopez v. Monterey County is an odd decision. Justice O'Connor's majority opinion easily upholds the constitutionality of a broad construction of section 5 of the Voting Rights Act (VRA) in language reminiscent of the Warren Court. Acknowledging the "substantial 'federalism costs" resulting from the VRA's "federal intrusion into sensitive areas of state and local policymaking," Lopez recognizes that the Reconstruction Amendments "contemplate" this encroachment into realms "traditionally reserved to the States." Justice O'Connor affirms as constitutionally permissible the infringement that the section 5 preclearance process "by its nature" effects on state sovereignty, and applies section 5 broadly, holding the statute applicable to a county's nondiscretionary implementation of state law. This holding, Justice O'Connor insists, "adds nothing of constitutional moment to the burdens that the Act imposes." Decided in 1999, Lopez stands in tension not only with a series of Rehnquist Court decisions circumscribing congressional authority to enforce the Reconstruction Amendments, but also with two other opinions interpreting section 5, Reno v. Bossier Parish (Bossier Parish 1), and Reno v. Bossier Parish (Bossier Parish I). These decisions, handed down in 1997 and 2000 respectively, narrowly construe the VRA's preclearance provision and invoke federalism concerns as justification. Bossier Parish I holds that section 5 does not block implementation of voting changes that violate section 2 of the VRA, noting that the contrary construction would "increase further the serious federalism costs already implicated by § 5." Bossier Parish II reads section 5's purpose prong to proscribe retrogressive intent only, and not an intent to dilute or an invidious intent more generally, and strangely cites Lopez as support for its claim that the broader reading would "exacerbate the 'substantial' federalism costs that the preclearance procedure already exacts." Left unexplained is why the Court understood the federalism costs implicated in the Bossier Parish cases to be preclusively high, while it viewed the costs at issue in Lopez to be the necessary and justifiable result of implementing the VRA. As part of this Symposium on "The New Federalism," this Article will attempt an explanation. After providing a synopsis of the decisions in Lopez and the Bossier Parish cases, it evaluates several rationales for why the Court might have assessed the federalism costs so differently in each decision. The implementation of congressional intent fails as an explanation given that Congress appears to have intended the broad construction of section 5 in all three cases. Nor can the decisions be reconciled based on the principle that enforcement of the Fourteenth and Fifteenth Amendments warrants intrusion into state sovereign processes. Insofar as the Court read section 5 broadly in Lopez because it understood the statute to be enforcing a constitutional right, it should have likewise adopted broad readings in the Bossier Parish cases. So too, an understanding of the Constitution to mandate colorblindness lacks explanatory power given that all three decisions promote racially-informed decisionmaking. Finally, the view that the majority-minority district gives rise to a distinct, constitutionally-cognizable harm fails to explain the difference in approach because this view should have led the Court to adopt narrow constructions of section 5 in all three cases.
Katz, Ellen D. "Federalism, Preclearance, and the Rehnquist Court." Vill. L. Rev. 46, no. 5 (2001): 1179-218.