[EL] Electoral college changes and section 5

[Scarberry, Mark]

Of course, the state legislature's exercise of its plenary power under Article II in the original Constitution is subject to the requirements of the amendments to the Constitution, including the 14th and 15th. A state obviously would violate the 15th Am. by prohibiting African Americans from voting in presidential elections.

This was a point that was made repeatedly during the Bush v. Gore controversy by those of us who thought that the Florida S. Ct. could not use the state constitution to limit the state legislature's choice of the manner by which the state appoints its presidential electors. Of course the amendments to the U.S. Constitution place limits on what the state legislature may do.

On the other hand, it is not clear that Congress's power to enforce the 14th and 15th Amendments by reaching actions that do not themselves violate the Constitution should be read broadly here. We are dealing with a state legislature's exercise of a power explicitly granted to the legislature by the Constitution, a power that has been understood to grant great discretion to the state legislature. In such a setting, there may have to be a stronger showing of a need for prophylactic measures because of the serious federalism issues at stake - serious issues with their roots in the explicit grant of authority by the US Constitution to the state legislatures. Note also that in the particular case in which the legislature of a state that is subject to preclearance chooses to change from an at-large election of electors to a congressional district approach, the creation of the districts would have been subject to preclearance; to then require preclearance before a state could move to a system based on those districts could easily be seen as an overreach. In effect, preclearance as to the districts would be a less restrictive means of preventing violations of the 14th and 15th Amendments (that is, a means that is less restrictive of the state legislature's exercise of its plenary power).

If I were defending the preclearance requirements before the Supreme Court, I'd think long and hard before answering a Justice's question in the affirmative, if the question was whether a state would have to ask federal permission to change to a district approach for appointment of electors.

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law



From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Derek Muller
Sent: Wednesday, January 23, 2013 6:28 PM
To: Election Law
Subject: Re: [EL] Electoral college changes and section 5

I'm not sure if it was simply prophylactic (which means it cannot answer the theoretical question), but, as a matter of recent practice, California did submit its enactment of the National Popular Vote to the Department of Justice for preclearance: http://www.nationalpopularvote.com/resources/CA-Herren-Letter-2012-1-13-DOJ-VRA-Preclearance.pdf

Derek
On Wed, Jan 23, 2013 at 6:01 PM, Justin Levitt <jml269 at connect.yale.edu<mailto:jml269 at connect.yale.edu>> 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<tel:203-432-2366>

justin.levitt at yale.edu<mailto:justin.levitt at yale.edu>

ssrn.com/author=698321<http://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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