[EL] Electoral college changes and section 5

[Justin Levitt]

(With apologies for the length)

Mark's argument still seems like it depends on a remarkably novel 
constriction of Congressional enforcement authority, even well beyond 
the faultlines of the current fight over enforcement authority.

To be clear (and to be responsive to Rick's argument about the 
Bullock/Gaddie piece), I think there would be a legitimate 
constitutional reason to hesitate if Congress used its Article I power 
to dictate how the states chose their electors.  (Say, a law requiring 
electors to be chosen in a Super-Bowl-style playoff system, in order to 
sell off television rights and thereby promote interstate commerce.)

But the question about VRA preclearance is about 15th (also 14th, but 
it's an easier 15th Amendment case) Amendment enforcement power, power 
expressly granted to Congress by the Constitution, as a limit on 
everything in Article II (and Article I).  If the enforcement power of 
the 15th Amendment means anything, it's a grant to Congress of the power 
to police state regulations of the franchise based on race.

There are three ways in which the states regulate elections: choosing 
their own state officials, choosing Presidential electors, and choosing 
members of Congress.  Congress has power under Article I, section 4 to 
regulate Congressional elections as they please, so there's no need to 
invoke 15th Amd. enforcement authority in that circumstance.  That 
leaves state officials and Presidential electors.  It can't be that the 
Constitution grants _more_ deference to states in choosing Presidential 
electors (the "plenary" power) than it does to states in choosing their 
own officials.  States had the power to choose their own officials well 
before the Constitution existed; Presidential electors only come into 
being with the Constitution.  So if anything, a 15th Amendment grant of 
power to Congress to prevent the states from abridging the right to vote 
based on race has to either give Congress just as much power to regulate 
the Presidential elector process as the state official process, or 
_more_ power to regulate the Presidential elector process.  Presidential 
elector selection can't be "specially" protected from 15th Amd. 
enforcement measures (e.g., Mark's theory that power shouldn't be read 
broadly "here").  I don't understand a theory attempting to preserve 
state autonomy under federalism where a state has more freedom to  
choose Presidential electors than to choose their own officials.

Which brings us to the scope of the 15th Amd. enforcement authority.  In 
/Katzenbach/, the Court told us that this power is governed by rational 
basis review.   There's a fight that we'll have answered soon about 
whether /Boerne/ applies to the 15th Amd. as well (see the argument in 
the lower court decisions in NAMUDNO and Shelby County).  (I happen to 
think that it shouldn't -- it makes sense that 14th Amd. enforcement 
power would be broad and shallow, and that 15th Amd. power would be 
narrow and deep.)

But the argument below goes significantly further than applying /Boerne/ 
to the 15th Amd.  In the permissive version, it seems to be that 
enforcement authority under the 15th Amd. should itself be strictly 
scrutinized (a least restrictive means test), which is a deeply odd way 
to conceive of an affirmative constitutional grant of power, akin to 
saying that the Court should strictly scrutinize any use of the Commerce 
power.  Put differently: there isn't an unusual need to watch out for 
federalism costs in enforcing the 15th Amendment, because _the only_ 
circumstances for Congress to "enforce" the 15th Amd. at all involve 
limitations on state regulations of the franchise.  The 15th Amendment 
enforcement power was specifically _designed_ to intrude on normal state 
prerogatives, every single time it's exercised.

And the least permissive version of the argument below is that 
Congressional enforcement power for the 15th Amendment has no content 
beyond the affirmative mandates of the 15th Amendment itself.  That is, 
Congressional power amounts to passing section 1983, and then getting 
out of the way.  In a world that gave us the /Slaughterhouse Case 
/reading of the privileges or immunities clause, that's not an 
unthinkable possibility -- but it is a rather striking departure from 
the conception of the enforcement power I understand the Court to have 
articulated.

So I don't think that this argument can turn on special limits on a 
Constitutional grant of power in the special circumstance of choosing 
Presidential electors -- because that has to be _less_ special than the 
only other circumstance (choosing state officials) in which the 15th 
Amendment enforcement power has any content.  If preclearance is a valid 
exercise of Congressional authority as applied to states regulating 
their state elections, it has to be a valid exercise of authority as 
applied to states choosing their Presidential electors.

Justin



On 1/24/2013 12:59 AM, Scarberry, Mark wrote:
>
> 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 14^th and 15^th . 
> A state obviously would violate the 15^th 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 14^th and 15^th 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 14^th and 15^th 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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