[EL] Electoral college changes and section 5
Justin Levitt
jml269 at connect.yale.edu
Fri Jan 25 07:17:02 PST 2013
Well, now we're back to one of the /Shelby County/ questions about the
standard for review for Congressional enforcement authority under the
15th Amendment. If the standard is /Boerne/, then yes, if Congress
compiles a record showing that the statute is congruent and proportional
to preventing an abridgment of the right to vote based on race, it's
constitutional. If the standard is /Katzenbach/, then if Congress has a
rational basis that someone can articulate at oral argument, it's
constitutional. Either way, the affirmative grant of Constitutional
authority to enforce the 15th Amendment changes the default allocation
of Article II selection authority. If it doesn't, I don't understand
what work section 2 of the 15th Amendment does.
By the way, even if rational basis (or a /Cleburne/-like "hard look"
rational basis) is the proper standard for such a statute, I wouldn't
expect the black helicopters to be depriving states of Presidential
elector selection latitude any time soon. A majority of the House and
(with the filibuster) supermajority of the Senate would still have to
think it's a good idea -- and what's more, a majority of the House and
supermajority of the Senate would have to either legitimately believe
that the statute is an effort to protect the right to vote based on
race, or be willing to violate their oaths of office. That ain't nothin'.
And in any event, I _still_ don't see why its the Presidential elector
selection process that's the driving variable here, rather than
enforcement power generally. That is, I don't understand a theory that
gives Presidential elector selection more insulation from Congress than
states' selection of their _own_ officials. Many municipal executives
are elected; many are appointed. Let's say that Congress, believing
that states will transition from one to the other in order to deny
electoral opportunities to racial minorities, passes a statute requiring
that mayors who are currently popularly elected have to stay popularly
elected. State control of local government preceded the constitution,
and wasn't limited by anything in the original constitution. Why would
Congressional regulation of that process pursuant to a specifically
enumerated federal power be any less than its power to regulate the
selection of electors to a _federal_ office pursuant to a specifically
enumerated federal power?
Or to use an even sharper example: let's say that Congress, believing
that public officials may use literacy and moral character tests to deny
the franchise on the basis of race, bans _all_ literacy and moral
character tests, including those used for states to elect their own
mayors, state representatives, and governors. I think that power fairly
clear under the enforcement authority of the 15th Amendment. But even
if you don't, what's the reason to think that Congress has the power to
enact that law, but not the power to prohibit literacy and moral
character tests for choosing Presidential electors?
Justin
On 1/25/2013 8:53 AM, Rick Hasen wrote:
> 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?
>>>>>
>>>>>
>>>>>
>>>>>
>>>>> _______________________________________________
>>>>> 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
>>>>
>>>>
>>>>
>>>> _______________________________________________
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>>>> Law-election at department-lists.uci.edu
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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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