Georgia v. Ashcroft: It's the End of Section 5 As We Know It (And I Feel Fine)

Abstract

First, this Article should not be read as either an endorsement or criticism of the Georgia opinion. The opinion is what it is. Plenty of academic commentary will most certainly ensue claiming Georgia is rightly or wrongly decided. Rather than criticizing or championing the opinion, this Article seeks to harmonize Georgia with the Court's more general framework for judging the propriety of congressional civil rights remedies-to find what critics of the opinion might term a silver lining in the Georgia cloud.

Second, even though Georgia creates a substantive Section 5 standard that does not violate separation of powers principles, that was not (and is not) the entire breadth of the problem that the Court's enforcement power doctrine presents for the future of Section 5. The Court's doctrine in this area is also motivated by federalism concerns; and while Georgia does in some manner reduce the federal government's power over state and local governments, it does so in a relatively small way. To put it more concretely, Georgia makes no reduction in the number of state and local governments subject to Section 5, does not reduce the types of voting changes that must receive federal approval, and does nothing to make it easier for state and local governments covered by Section 5 to escape the grip of the statute's coverage. Changes that, in my opinion, Congress may need to make to conform Section 5 to the Court's federalism values.