[EL] Electoral college changes and section 5

[Richard Winger]

The state of Ohio depended heavily on a state's power to choose presidential electors any way it wished, when Williams v Rhodes was argued.  But Ohio lost.  Justice Hugo Black rebutted Ohio on that, and none of the dissents depended on that particular Ohio argument.

Williams v Rhodes was the 1968 case that said the First and Fourteenth Amendment protect the right of voters to cast a vote for a minor party or independent candidate in the general election.  It was the first time the US Supreme Court had protected the ability of a voter to cast a vote for someone other than major party nominees.  George Wallace was put on the Ohio ballot by winning that case.

Richard Winger

415-922-9779

PO Box 470296, San Francisco Ca 94147

--- On Wed, 1/23/13, Rick Hasen <rhasen at law.uci.edu> wrote:

From: Rick Hasen <rhasen at law.uci.edu>
Subject: Re: [EL] Electoral college changes and section 5
To: justin.levitt at yale.edu
Cc: "Justin Levitt" <jml269 at connect.yale.edu>, law-election at department-lists.uci.edu
Date: Wednesday, January 23, 2013, 9:48 PM


  

    
  
  
    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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