[EL] Electoral college changes and section 5
George Korbel
korbellaw at hotmail.com
Fri Jan 25 07:33:57 PST 2013
So why not consider the method of election of voters on the college nothing but at large elections.
Which is what the elections are
Not a sec 5 issue but a sec 2 issue. The intent would be in continuing to use this at large feature with knowledge.
Sent from my iPad
Sent from my iPad
On Jan 25, 2013, at 9:19 AM, "Michael McDonald" <mmcdon at gmu.edu> wrote:
> 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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> --
> 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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