[EL] Electoral college changes and section 5

[Rick Hasen]

The Bullock and Gaddie piece makes the argument (albeit in the context 
of a section 2 claim rather than a section 5 claim) which I was thinking 
of---namely that while the Article II power would be trumped by a racial 
voting test by the 15th amendment, other rules set by a state under its 
article II powers (such as a reservation to the legislature itself to 
choose electors) might not be touched by Congress because doing so would 
exceed congressional power.  This reading is informed by the Court's 
discussion of the Legislature's power to choose electors in Bush v. Gore.

I'm not saying I agree with Keith's argument---I'd need to study the 
cases and commentary a lot more.  But I do think that it is a 
complicated question without a clear answer.

Rick

On 1/23/13 6:01 PM, Justin Levitt wrote:
> 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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-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org

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