[EL] Electoral college changes and section 5
Rick Hasen
rhasen at law.uci.edu
Fri Jan 25 21:07:47 PST 2013
I think I was asking three different questions and I apologize for being
so confusing. Nonetheless, I think your answers below addressed all of
my questions.
I suppose I remain the least convinced regarding the initial question I
asked about Congressional power to force preclearance on a decision
pertaining to presidential electors. To make the case most stark,
imagine that the Va. legislature takes back its right to directly
appoint electors. I see a plausible argument that such a move would
fail preclearance at least under the effects prong /if/ preclearance is
constitutional. But I have a hard time believing that the Article II
delegation would be irrelevant to the constitutional question as you
said in the initial response on this thread. I think it is highly
relevant precisely because of the quote from Bush v. Gore you highlight
below. A court could well say the federal government could not pass on
the legality of such a decision under its 14th or 15th amendment
enforcement powers.
If Congress doesn't have the power to make Va. go through a preclearance
process for a decision to directly appoint electors, can it make Va. go
through a preclearance process for less severe changes?
I'm not sure of the answer. Certainly, as Michael pointed out, lots of
decisions which affect presidential elections go through preclearance
all the time. But none of those are so directly related to the
allocation of electors.
Anyway, I doubt we'll get the chance to see this resolved.
Rick
On 1/25/13 1:47 PM, Justin Levitt wrote:
> 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 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
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>> _______________________________________________
>>>>>>> Law-election mailing list
>>>>>>> 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
>>>
>>
>> --
>> 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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