[EL] Electoral college changes and section 5
Rick Hasen
rhasen at law.uci.edu
Fri Jan 25 05:53:53 PST 2013
Justin--
What if Congress defended such a statute as a means of preventing the
dilution of minority voting power in presidential elections---the same
question which would be presented to DOJ if Virginia moved from winner
take all to districted allocation of electoral college votes?
Rick
On 1/24/13 10:20 AM, Justin Levitt wrote:
> 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?
>>>>
>>>>
>>>>
>>>>
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>>>>
>>>>
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>>>
>>>
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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
>
--
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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