[EL] Electoral college changes and section 5
Michael McDonald
mmcdon at gmu.edu
Fri Jan 25 12:28:45 PST 2013
The federal government has imposed limits on what a state could do with
respect to the allocation of electors by congressional district. Federal law
requires single-member congressional districts. Furthermore, the 14th
amendment requires those districts to be equally populated. And then there
is the VRA. Of course, nothing stops a state from adopting special elector
districts...
============
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 Justin
Levitt
Sent: Friday, January 25, 2013 2:47 PM
To: Rick Hasen
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] Electoral college changes and section 5
Wait -- I'm confused (and ready to apologize to the rest of the list,
whenever you're all tired of this conversation).
First, we were talking about a potential VRA challenge, and then a
Congressional statute requiring Presidential electors to be selected through
elections, period (unconstitutional without an enumerated power, different
story if based on race).
I think you're now asking two or three different questions (that's not a
critique -- I just want to make sure I understand). First, a Congressional
statute requiring Presidential electors to be selected through elections (as
opposed to not through elections). No 14th Amendment injury that I can see:
Bush v. Gore made clear there's no right to such an election ("The
individual citizen has no federal constitutional right to vote for electors
for the President of the United States unless and until the state
legislature chooses a statewide election as the means to implement its power
to appoint members of the electoral college.") And so no Congressional
enforcement authority.
Second, a Congressional statute requiring Presidential electors to be
selected statewide rather than by congressional district, based on OPOV.
Now this isn't about whether there's an election, but the terms of the
election. I think Keith pointed out that the Virginia plan is suspiciously
like a county unit system ... except that if I remember right (it's been a
while), Gray v. Sanders found fault with the county unit system because the
counties were unequally populated. Here, that's not an issue. It's
certainly not a OPOV violation to choose a Congressional delegation using
congressional districts, so 11 of the 13 electoral votes seem fine under
OPOV; I'd have to think a whole lot more about whether allocating the two
extra electoral votes by tallying congressional district causes a OPOV
problem, but I don't immediately see why it would. And if that _did_ cause
a problem, it's plausible that there'd be a congruence-and-proportionality
difference between Congress passing a statute that prohibits the problematic
practice and Congress passing a statute that prescribes one method of
selection (e.g., statewide elections).
Third, a direct challenge under OPOV. I think opponents could bring a
direct 14th Amendment challenge, in that I think it's justiciable, yes. If
Virginia decided to allocate Presidential electors by holding an election,
giving the Governor ten million votes and everybody else one vote apiece,
that seems clearly unconstitutional (and judicially cognizable). But as
above, I'm not sure whether allocating the extra 2 electoral votes based on
tallying equally-populated districts actually creates a OPOV violation.
Justin
On 1/25/2013 2:21 PM, Rick Hasen wrote:
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 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
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401 E. Peltason Dr., Suite 1000
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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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