[EL] Electoral college changes and section 5
Justin Levitt
levittj at lls.edu
Thu Jan 24 08:20:10 PST 2013
Depends entirely on the asserted source of Congressional power.
With no articulated connection to race, it's tough for me to see this as
an exercise of 15th Amd. power. And with no 14th Amd. due process right
for voters to vote on Presidential electors unless states wish them to
(most recently articulated in Bush v. Gore), it's tough for me to see
this as an exercise of 14th Amd. power. And with no connection to
elections for Senators and Representatives, it's tough for me to see
this as an exercise of power under Article I, section 4.
So unless there's a Congressional power I don't spot, I think such a
statute is unconstitutional. But the primary reason isn't state
autonomy to choose electors -- the reason is that Congress doesn't have
the enumerated power to enact such a statute.
Justin
On 1/24/2013 11:13 AM, Rick Hasen wrote:
> How would you treat a statute in which Congress bars state
> legislatures from choosing their electors directly and requires
> elections open to all voters qualified to vote in state elections?
>
>
> On 1/24/2013 7:07 AM, Justin Levitt wrote:
>> (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?
>>>
>>>
>>>
>>>
>>> _______________________________________________
>>> Law-election mailing list
>>> Law-election at department-lists.uci.edu
>>> <mailto:Law-election at department-lists.uci.edu>
>>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>>
>>>
>>>
>>> _______________________________________________
>>> Law-election mailing list
>>> Law-election at department-lists.uci.edu
>>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>>
>>
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>> http://department-lists.uci.edu/mailman/listinfo/law-election
>
> --
> 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
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20130124/1c2ce9be/attachment.html>
View list directory