[EL] Oop! RE: Arizona opinion

[Scarberry, Mark]

Oops! I thought the footnote 8 from which I quoted was in the majority opinion. It is from Justice Thomas's dissent. (Lesson: Read twice before hitting the send button! Or, measure twice, cut once.)
Mark

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Scarberry, Mark
Sent: Monday, June 17, 2013 10:42 AM
To: law-election at UCI.edu
Subject: Re: [EL] Arizona opinion

I don't think it's surprising that the Court held that states have the power (subject to the 14th, 15th, etc. Amendments) to set qualifications for who can vote for members of the House and Senate. See below for our discussion of this on the list back in March of this year, during which Marty raised concerns similar to the ones he just now raised.

Perhaps it is surprising that all nine Justices rejected a contrary view of Oregon v. Mitchell. But, as the Court noted in its footnote 8, and as we discussed back in March, only Justice Black relied on the Elections Clause (or the Time, Place, and Manner Clause) in Oregon v. Mitchell.

A question:

Was it controversial that the EAC gave Louisiana approval to include extra requirements on its version of the federal form? I don't see how the form can serve its apparent purpose - to allow solicitation of registrations without the solicitor needing to worry about which state a potential voter is from - if states are permitted to use different "federal" forms. Of course, the same problem would result here if Arizona convinces the EAC (if and when it ever has a quorum) to authorize Arizona-specific requirements to be added to the federal form, or gets a writ of mandate, or successfully argues that it cannot, under the existing federal system, vindicate its interest in making sure that only citizens can register. Am I missing something here?

A few comments:

Note that the Court quoted Bush v. Gore (and McPherson v. Blacker as cited in Bush v. Gore) approvingly with respect to the plenary authority given to state legislatures to select the manner by which each state appoints its presidential electors.

"This Court has recognized, however, that 'the state legislature's power to select the manner for appointing [presidential] electors is plenary; it may, if it chooses, select the electors itself.' Bush v. Gore,
531 U. S. 98, 104 (2000) (per curiam) (citing U. S. Const., Art. II, §1, and McPherson v. Blacker, 146 U. S. 1, 35 (1892))."

Some of us relied heavily on this argument and on McPherson back during the discussions (mostly on the conlawprof list rather than this list, I think) prior to the Court's decision in Bush v. Gore.

Perhaps the Court's citation here is both good news and bad news for the NPVIC supporters. *Maybe* this makes it more likely that a state could choose to select its electors by way of the national popular vote, but it also seems to support a plenary power of each state legislature to back out of the compact at any time before election day. Some of us have argued that this makes completely unenforceable the "blackout period" in the NPVIC, which would purport to deny a state legislature the power, during a period prior to election day to prevent gaming of the system.

I'd argue, with respect to the basic thrust of the NPVIC, that the Court's reliance on McPherson makes it more likely that the NPVIC would be *invalidated*. First off, McPherson holds that the question whether a state legislature has adopted a manner by which the *state* has appointed its electors is justiciable. Second, the reasoning in McPherson requires that the manner selected by the legislature must be one under which the state's voice is in some way responsible for appointment of the particular persons who will serve as electors. Dan Lowenstein and I made that point last year, I think, on this list. Here is the basic argument, from a post I sent to the list last August:

"If you look at the way the Court in McPherson analyzed the question whether it was constitutional to choose electors by district, the Court asked whether such a method reflected the voice of the state. Obviously the state legislature's choice of a district approach was a choice by a body entitled to speak for the state as to how the electors should be appointed. The Court could have stopped there, but it didn't. The Court instead asked whether the method chosen by the legislature was a method by which appointment of electors reflected the voice of the state. For example, the legislature could authorize the governor (a state elected official) to appoint the electors, because, in appointing the particular electors, the governor could be seen as speaking for the state, whose voters elected him (or, modernly, her). It is not just the choice of manner that must reflect the voice of the state; additionally it is the appointment of electors pursuant to that method that must be done by a process that reflects the voice of the state. At least that is necessary under the ratio decidendi from McPherson. The national popular vote reflects the voice of the nation, but not the voice of the state.

...

"I think most people who have looked at it carefully also think that the blackout period provided for in the NPV Compact - under which a deadline is set after which a state cannot back out of the Compact prior to a presidential election - violates Art. II. State legislatures have a non-waivable right to determine how electors shall be chosen; they cannot give up that right by way of a Compact or in any other way. (They have that right up until the date set by Congress for appointment of electors, but not after that date, with respect to that particular election.) I believe the Compact has a severability provision, and thus unconstitutionality of the blackout period provision would not by itself doom the whole Compact. Nevertheless, to the extent that the blackout period is needed to make the NPV Compact desirable, its unenforceability should be considered."


Best,
Mark

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> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Marty Lederman
Sent: Monday, June 17, 2013 8:18 AM
To: Rick Hasen
Cc: law-election at UCI.edu<mailto:law-election at UCI.edu>; law-legislation at uci.edu<mailto:law-legislation at uci.edu>
Subject: Re: [EL] Arizona opinion

potentially huge implications for the Elections Clause, since the Court -- without dissent! -- appears to finally resolve that Congress can't set qualifications for voting in federal elections (the issue that split the Justices in Oregon v. Mitchell).

Under that ruling, what might be at stake?

For starters, UOCAVA, which requires a state to register for federal elections any person who resides outside the United States and (but for such residence) would be qualified to vote in that state if it was the last place in which the person was domiciled before leaving the United States.

For another, this is a blow for any future efforts to enact a federal statute preempting felon disenfranchisement laws.

What's more, when combined with other "recent" decisions (the Boerne line), it would appear to call into question Congress's authority to enact three statutes that the Court upheld in Oregon v. Mitchell:

i. requiring that 18-year-olds be permitted to vote in federal elections;
ii.  requiring that a State had to allow a new resident to vote for President if she had moved to the State more than 30 days before the election;
and
iii. requiring that a State had to permit a previous resident to vote for President if he had moved from the state fewer than 30 days before a federal election.

(Of course, the Justices relied on an array of rationales in Mitchell; but the residency holdings were supported by eight Justices and the 18-year-old vote by five -- and the other rationales in support of those holdings would not necessarily stick today.)

Moreover, footnote 9 of the Scalia opinion at least leaves open the question of whether Congress could prohibit Arizona from doing the following:  (i) requiring proof of citizenship in order to register; and then (ii) providing that "registration" is a qualification for voting.

Federal government might have won the battle, but as for the war . . .



POSTS FROM MARCH OF THIS YEAR:

From: Scarberry, Mark
Sent: Sunday, March 17, 2013 2:58 PM
To: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: RE: [EL] Sleeper Case of the Year

A quick response to Marty, which is all I have time for now.

Will anyone argue seriously that the Founders thought the Elections Clause would let Congress determine who could vote in House elections? My statement was that the Elections Clause was not designed to allow that.

Black's opinion in Oregon v. Mitchell, if I understand it correctly, is incoherent, to the extent it relies on the Elections Clause. He says that Congress can determine who can vote in House elections, but that states can determine who can vote in state elections. How can that possibly square with the  provision in I, 2, 1 equating those who can vote for the House with those who can vote for the most numerous branch of the state legislature?  I don't think any other Justice relied on the Elections Clause, but I could be wrong. Douglas relied on the 14th Amendment including its P or I Clause. Brennan, White, and Marshall relied on the 14th and 15th Amendments, not the Elections Clause, I think. Stewart's opinion (for himself and two others) flatly rejected reliance on the Elections Clause, but relied on the right to travel/migrate and the 15th Amendment with regard to the residency and literacy test provisions, respectively.

The Court certainly got it right on the literacy test issue; the enforcement powers under the 14th & 15th Amendments amply supported the prohibition on literacy tests, as they would have under current notions of congruency and proportionality, which may be determinative here.

More later, perhaps, but maybe others will weigh in first.

It seems to me that a holding that the Elections Clause does not give Congress the power to allow persons to vote without showing that they are eligible to vote would not be earthshaking.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

From: Marty Lederman [mailto:lederman.marty at gmail.com]
Sent: Sunday, March 17, 2013 1:41 PM
To: Scarberry, Mark
Cc: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: Re: [EL] Sleeper Case of the Year

1.  It's anything but "clear" that Congress lacks the power to determine who can vote in federal elections.  In Oregon v. Mitchell, for instance, the Court upheld Congress's power to provide that:

i. 18-year-olds could vote in federal elections;
ii.  A State had to allow a new resident to vote for President if she had moved to the State more than 30 days before the election;
and
iii. A State had to permit a previous resident to vote for President if he had moved from the state fewer than 30 days before a federal election.

(Of course, the Justices relied on an array of rationales in Mitchell; but the residency holdings were supported by eight Justices and the 18-year-old vote by five.)

To like effect, the 1975 Overseas Citizens Voting Rights Act, and then the (current) 1986 UOCAVA, requires a state to register for federal elections any person who resides outside the United States and (but for such residence) would be qualified to vote in that state if it was the last place in which the person was domiciled before leaving the United States.

2.  Of course, there's no dispute here between Congress and the States that voting should be limited to U.S. citizens.  Mark assumes that States not only have a constitutional prerogative to set such a qualification to vote for federal office (but see No. 1, above), but also a constitutional prerogative to determine how such a qualification will be implemented, i.e., what evidence will suffice to demonstrate that the qualification is met, even if Congress prescribes otherwise.  That's simply assuming the answer to the constitutional issue that Arizona argues is the reason for narrowly construing the statute.  For the contrasting view, see pages 31-33 of the U.S. brief (www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v2/12-71_resp_amcu_US.pdf<http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v2/12-71_resp_amcu_US.pdf>).

From: Scarberry, Mark
Sent: Sunday, March 17, 2013 2:58 PM
To: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: RE: [EL] Sleeper Case of the Year
At the risk of making errors as I write this in haste, with the caution that I haven't researched this particular issue, and with the likelihood that some of these points are obvious or have been made elsewhere at length:
1. It's clear that the Elections Clause was not designed to let Congress determine who could vote. That was left to the states. For textual support see Art. I, sec. 2, cl. 1. Thankfully, the 15th, 19th, and 24th Amendments placed limits on states' power to determine who could vote; ditto, thankfully, the Court's application of the Equal Protection Clause, right to travel/migrate, prohibition of undue burdens on the right to vote for those otherwise entitled to vote, etc. (Some may disagree about the wisdom of the 26th, but I have to be careful here since I have a daughter who is only a year away from being entitled to vote under the 26th.)
2. Arguably the state is entitled to make sure that people who vote are entitled to vote; otherwise the state's right to decide who can vote (subject to all the limits noted above) is lessened. The state is entitled, for example, to limit the franchise to citizens (and under Richardson v. Ramirez, like it or not, non-felons). A federal law that in effect prevented a state from making sure that only citizens vote would interfere with the state in enforcing that limit.
3. So arguably a federal regulation that does not just affect how the election is run but also who, as a practical matter, can vote must be justified on grounds other than the Elections Clause.
4. If Arizona is not creating a substantial burden on the right to vote of those who are entitled to vote, then it isn't clear that there is such a ground, unless the federal law can be justified under the enforcement provisions of the 14th, 15th, etc. Amendments.
5. That requires some showing that the federal law deals in a proportion and congruent way with constitutional violations as the Court has interpreted the Constitution.
6. I don't know whether such a showing of congruence and proportionality has been made in this case.
I hope that makes sense. Back to other urgent matters.
Mark
Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
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