[EL] Electoral college changes and section 5

Thu Jan 24 12:19:51 PST 2013

I agree with Justin that such a statute would be unconstitutional.

On the other hand, I do think the state power explicitly granted by the Constitution plays into the analysis.

There is one other wrinkle to the preclearance question as applied to a district approach to appointment of electors. Congress could take control of congressional districting under Art. I, sec. 4, without relying on any 14th or 15th Amendment power. As a practical matter, that gives Congress some control over an approach to appointment of electors that uses congressional districts.

Mark

Mark S. Scarberry
Pepperdine Univ. School of Law
Malibu, CA 90263
(310)506-4667

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Justin Levitt
Sent: Thursday, January 24, 2013 8:20 AM
To: Rick Hasen
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] Electoral college changes and section 5

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 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> [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>

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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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