[EL] Electoral college changes and section 5
Rick Hasen
rhasen at law.uci.edu
Fri Jan 25 11:21:12 PST 2013
Why not enforcing the 14th Amendment's one person, one vote rule, as
recognized by the Warren Court? What about a direct challenge under
OPOV against a Virginia-type electoral college allocation? Is it your
position that opponents of the Virginia type system could bring a direct
14th amendment OPOV challenge in court?
On 1/25/13 9:17 AM, Justin Levitt wrote:
> 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?
>>>>>>
>>>>>>
>>>>>>
>>>>>>
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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
>
--
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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