I think there’s at least a colorable argument that the VRA is only contextually constitutional; in other words, it’s constitutionality depends on the existence of certain facts on the ground. Congressional powers under Section 5 must be congruent and proportional to the harm Congress seeks to remedy. As racism becomes less of a problem, then the VRA begins to seem less like a congruent and proportional response.
That said, I think we’re pretty far from that day, and I also think the Courts need to be pretty deferential to Congress on the factual issue. If Congress still thinks its a problem – as they said last time they reapproved the Act – then the Court should be very reluctant to second guess Congress on the facts.
As a practical matter, I think this Supreme Court is unlikely to muck with things, but I would trust Tom Goldstein’s opinion too.
