Saturday, May 9, 2009

Tuesday, May 5, 2009

NAMUDNO v. Holder

Heather Gerkin, on why the "congruence and proportionality" test might be problematic if applied to the renewal of section 5 of the Voting Rights Act:
The question is what standard should be used [] when Congress is renewing what lawyers would call a prophylactic statute, a broad set of protections designed to deter discrimination. If Boerne were applied wholesale, Congress would be in a catch-22. If the statute was working, there wouldn't be much evidence of discrimination, and Congress wouldn't be allowed to renew the statute. If the statute wasn't working, Congress would have the evidence of discrimination it needed, but there wouldn’t be much point to renewing a failed regulatory regime.