[EL] Electoral college changes and section 5

[Justin Levitt]

Isn't it clear that the 14th and 15th Amendments would preclude a state 
legislature from using its "plenary" power to decide that it would hold 
a popular election for presidential electors with only white voters 
eligible to participate?  Those Amendments, written after Article II and 
a substantial shift in federal/state power, substantively modify the 
exercise of all the powers in the original constitution.

By the same logic, a statute validly passed under Congress's power to 
enforce the 14th and 15th Amendments has to be a valid limitation on 
"plenary" power.

It's the same logic as /Fitzpatrick v. Bitzer/, 427 U.S. 445 (1976), 
allowing valid exercise of 14th Amendment enforcement power to override 
11th Amendment sovereign immunity.  No?

-- 
Justin Levitt
Visting Associate Professor of Law
Yale Law School
203-432-2366
justin.levitt at yale.edu
ssrn.com/author=698321

On 1/23/2013 7:48 PM, Rick Hasen wrote:
> Someone asked me what would happen if Virginia changes its method for
> allocating electoral college votes. Would such a change be subject to
> preclearance under section 5 of the Voting Rights Act? Or, given the
> state legislature's plenary power to set the rules for the allocation of
> electoral college votes as provided for in Art. II of the Constitution,
> is the preclearance requirement not applicable or unconstitutional as
> applied to electoral college allocations?
>

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