[EL] Electoral college changes and section 5

Fri Jan 25 07:18:33 PST 2013

I agree that there are Section 5 questions to be addressed with the Virginia
electoral college rule change. With (still) Republican Lt. Gov. Bolling --
the tie-breaking member of the evenly divided Senate -- yet to take a public
stand, I am not sure if it will pass the Senate.

The Post reported that Bolling met with Republicans two weeks before
Monday’s surprise re-redistricting, and said that he would not support it.
This is why Republicans needed to pass it without his support. That may give
some hope to Democrats that he will reject the electoral college bill.
However, while Bolling opposed the re-redistricting, he did not proactively
try to stop it by alerting Democrats that a bill was imminent.

The strongest political case against the electoral college bill is that it
is not in state legislators’ self-interest. Near the founding, it was common
practice for state legislatures to change the electoral college allocation
laws or select the electors themselves. The state legislative elections
became tantamount to the presidential election. What these state legislators
may learn is that the national political parties and presidential campaigns
are going to become heavily invested in their state legislative elections,
to the detriment of state legislators’ careers and to the detriment of state
legislative campaigns that should rightly be focused on state issues, not
national issues. The campaign effect would be particularly acute in
Virginia, where we have odd-numbered year elections with typically low voter
turnout.

============
Dr. Michael P. McDonald
Associate Professor
George Mason University
4400 University Drive - 3F4
Fairfax, VA 22030-4444

703-993-4191 (office)
e-mail:  mmcdon at gmu.edu               
web:     http://elections.gmu.edu
twitter: @ElectProject     

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rob
Richie
Sent: Friday, January 25, 2013 9:05 AM
To: Gaddie, Ronald K.
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] Electoral college changes and section 5

One important aspect of Sen. Carrico's proposal in Virginia is the statewide
vote would become completely meaningless -- that is, even the two statewide
electors would go to the candidate who wins the most DISTRICTS in the state
rather than the most VOTES. So that means any district with a distinct tilt
-- that is, the Democratic-leaning urban area districts with a
disproportionate share of racial minorities and the Republican-leaning rural
districts that Carrico professes to care about --- would have as meaningless
a role in every presidential election as the 35 spectator states that have
been ignored by all major party presidential candidates for at least three
straight general election cycles (with not a one likely to be a battleground
in 2016 either).

So most African Americans in Virginia would go from participating in closely
contested swing state to being sure of getting no attention. (To underscore
that lack of attention, those 35 spectator states referenced above all
received less than one percent of the attention in ad dollars and campaign
events that their population warranted. This includes almost all small
population states.)

The Washington Post's lead story today was on these Electoral College plans,
fyi. See:
http://www.washingtonpost.com/politics/republicans-in-virginia-other-states-
seeking-electoral-college-changes/2013/01/24/430096e6-6654-11e2-85f5-a8a9228
e55e7_print.html

Rob

On Fri, Jan 25, 2013 at 9:00 AM, Gaddie, Ronald K. <rkgaddie at ou.edu> wrote:
Is an elector a candidate of choice? Not a presidential candidate, but an
elector?  This is where we might start in order to pursue a voting
rights-based remedy.

Ronald Keith Gaddie, Ph.D.
Professor of Political Science
Editor, Social Science Quarterly
The University of Oklahoma
455 West Lindsey Street, Room 222
Norman, OK  73019-2001
Phone 405-325-4989
Fax 405-325-0718
E-mail: rkgaddie at ou.edu
http://faculty-staff.ou.edu/G/Ronald.K.Gaddie-1
http://socialsciencequarterly.org
________________________________________
From: law-election-bounces at department-lists.uci.edu
[law-election-bounces at department-lists.uci.edu] on behalf of Rick Hasen
[rhasen at law.uci.edu]
Sent: Friday, January 25, 2013 7:53 AM
To: Justin Levitt
Cc: law-election at department-lists.uci.edu

Subject: Re: [EL] Electoral college changes and section 5

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 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] 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>
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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rhasen at law.uci.edu
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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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