[EL] informal thoughts on Intertribal "time bombs"

[Rick Hasen]

That was my second of three suggestions in my initial post 
<http://electionlawblog.org/?p=51773>:

(2) The liberals agree with Justice Scalia on the dicta on pages 13-17, 
and they think these issues are better left to the states. (That seems 
unlikely to me, given divides in cases like /Crawford/).


On 6/19/13 3:35 PM, Smith, Brad wrote:
> I don't want to sound too horribly naive, but we probably ought to at 
> least consider the possibility that the liberal justices thought that 
> the decision and its reasoning was correct.
>
> /Bradley A. Smith/
>
> /Josiah H. Blackmore II/Shirley M. Nault/
>
> /   Professor of Law/
>
> /Capital University Law School/
>
> /303 E. Broad St./
>
> /Columbus, OH 43215/
>
> /614.236.6317/
>
> /http://law.capital.edu/faculty/bios/bsmith.aspx/
>
> ------------------------------------------------------------------------
> *From:* law-election-bounces at department-lists.uci.edu 
> [law-election-bounces at department-lists.uci.edu] on behalf of Kirsten 
> Nussbaumer [kirsten_n at me.com]
> *Sent:* Wednesday, June 19, 2013 6:36 PM
> *To:* law-election at UCI.EDU
> *Subject:* [EL] informal thoughts on Intertribal "time bombs"
>
> For anyone with patience to skim, I scribbled some reactions to 
> Intertribal, and it got so lengthy I'm attaching it as a six-page Word 
> document as well as pasting it below the fold (where it loses the 
> formatting).
>
> Please don't take the attachment as meaning that I stand behind my 
> Intertribal speculation any more than if I'd shot it off in a 
> two-minute email.  Reactions are welcome. (I may--I'm not sure--write 
> more formally on the case.)
> cheers,
> Kirsten
>
> Here I share some of my provisional, rough, quick (but not brief!) 
> thoughts on Rick's questions about why the "Court's liberals" might 
> have wanted to sign onto the "time bombs" in /Intertribal/.
>
>
>
>  Legal geek high alert: This is mostly doctrinal speculation on the 
> already very speculative parts of the Scalia opinion.
>
>
>
> **1. _The invitation_
>
> _to new judicial supervision of the political process, and the new 
> (implied) "necessary for enforcement" requirement_
>
>
>
> One reason that Rick's liberals might've been comfortable
>
> going along with the parts of the opinion that invite new action 
> before the EAC, judicial review, and possibly even a new kind of 
> direct constitutional challenge is that the implied new constitutional 
> right may be of a relatively delimited nature.  The dissenters wanted 
> a ruling that states have a constitutional _discretionary_ power to 
> enforce their voter qualifications however they want--in effect, that 
> such a power is no part of the "times, places, and manner" power of 
> Congress [1/4/1] but is rather a necessary incident of the states' 
> constitutional power to set voter qualifications under the Article One 
> qualifications clause [1/2/1] and the 17th Amendment.  I could see 
> some lower courts spinning it this way.  But I don't see anything like 
> this in the Scalia opinion.
>
>
>
>  Instead, the majority's statutory construction and proposed
>
> remedial path implies that the states have _no_ claim to an exclusive 
> and discretionary enforcement right:   "Since the power to establish 
> voting requirements is of little value without the power to enforce 
> those requirements... it would raise serious constitutional doubts if 
> a federal statute precluded a State from obtaining the information 
> _necessary to enforce_ its voter qualifications." If, but for 
> Arizona's interpretation... the State would be _precluded_ from 
> obtaining information _necessary for enforcement_...," then Arizona's 
> interpretation of the _federal _statute would have to be considered 
> [under the constitutional avoidance canon] (15).
>
>
> So the state might turn out to have an enforceable right to
>
> ensure that its voter qualifications are not undermined by 
> insufficient means of enforcement, but there is no suggestion that 
> even the EAC has to accept the state's preferred pathway to this 
> enforcement. Ultimately, an agency or court can be the adjudicator of 
> what is "necessary" enforcement of the voter qualification.
>
>
> There is much novelty in this analysis, but I don't see any
>
> obvious implication of a big carve-out from the Elections Clause power 
> [1/4/1].  My sense of the past has been that procedures for verifying 
> the eligibility of voters usually /have/ been assumed to be part of 
> the "manner" power (also part of a legislature's powers to judge 
> contested elections), and that these powers are not directly packaged 
> with voter qualification rules.  While Scalia's analysis might change 
> this picture, he does not say anything that would subtract eligibility 
> enforcement from the reach of Congress's 1/4/1 power (in the first 
> instance).  That is, there is no suggestion that Congress (or, its 
> agent the EAC) cannot act in this domain.
>
>
> Weirdly, maybe we could imagine that the legal analysis
>
> eventually morphs into a kind of 'reverse commandeering' where the EAC 
> or Congress is impelled to accept a state's preferred means of 
> enforcement and to incorporate these measures into its own laws and 
> procedures.  So far though, the Court's invitation is only for (i) 
> _federal_ agency and _federal _judicial decision about "necessary for 
> enforcement", and (ii) the analysis is based on construction of a 
> _federal _statute (even if the constitutional avoidance canon is invoked).
>
>
> We could spin this doctrinal innovation in terms of Michael
>
> McDonald's "judicial power grab". Or we could go with Emily Bazelon's 
> more benign picture of it playing out as court supervision of 
> "necessary for enforcement" in a way that need not obviously tilt 
> conservative or liberal (just as the lower courts have recently 
> stepped up pre-election supervision of voting procedures under /Bush 
> v. Gore/ equal protection doctrine and section five).
>
>
> Rick is surely right to see a new partisan weapon in
>
> "the voting wars" in this invitation to agency and court challenge.  
> But it is not anything like the kind of weapon it would be if the 
> states were accorded a sovereign right to discretionary autonomy over 
> enforcement. If anything, the impulse behind Scalia's analysis is 
> _discretion-limiting_, and the "voting wars combatants" may not get to 
> fight this particular fight on primarily political turf.
>
>
> That said, I do think the framing of the implied new right
>
> in the dicta is 'conservative' in another sense:  If 1/2/1 and the 
> 17th Amendment entail a state's right to have some effective means of 
> eligibility enforcement (not necessarily its preferred means), why 
> should the constitutional and judicial focus be only on policing the 
> disqualified and not also on ensuring whatever is necessary for 
> affirmative recognition of the eligibility of qualified individuals?  
> None of us, I assume, wants legally disqualified voters to vote.
>
> (That is, even if we think felony disenfranchisement operates unjustly 
> in many states, we want the law changed, not dysfunctional enforcement.)
>
> My puzzle is that I don't see a defensible constitutional logic for 
> suggesting that the constitution impels novel judicial supervision to 
> ensure that proper disqualification is happening, but not to ensure 
> that proper qualification is happening.
>
>
>
>  2. _The federal_
>
> _suffrage as a matter of state sovereignty and of discretionary power_
>
>
> As I argued before on the list-serve, I think that--from a
>
> long historical perspective--the later nineteenth (not predominantly 
> eighteenth) century-ish rendering of 1/2/1 as the states' unfettered 
> power to set federal voter qualifications (i.e., as an implied issue 
> of state sovereignty rather than as a federal constitutional 
> 'incorporation by reference' of the state qualifications) should've 
> been controversial.  I'm not surprised that it wasn't because the 
> later nineteenth-century vision of the suffrage has so thoroughly 
> erased the memory that it has not always been thus.
>
>
> I do wonder though if the justices just didn't have enough
>
> time to focus on their understanding of 1/2/1 for more than a fraction 
> of the time that they spent developing an understanding of the 
> Elections Clause.  Maybe we would see a lot more diversity of opinion 
> about the nature of the federal suffrage in a case where the issue is 
> not just /dicta/ or proposed statutory construction?   It seems odd to 
> me that there would be less diversity of opinion about the suffrage 
> now (when the Court has yet to develop a clear settled vision about 
> it) than there was at the U.S.'s origins or during the early republic.
>
>
>
> Here I question Bob Bauer's statement that there's a
>
> "clear majority for the proposition that states have control over 
> voter qualifications."**_I see only a clear majority for the 
> proposition that Congress lacks the power under the Elections Clause_, 
> and an implication that  (at least ordinarily) the congressional 
> suffrage is pegged to that of the states and that these are 
> qualifications that need to be enforced.  We do not get anything about 
> post-civil war amendments or the Supreme Court's equal protection 
> cases.  And we do not get any clear holding that federal 
> qualifications are a matter of direct state control (rather than an 
> indirect power by which a state's sovereign right over state 
> qualifications results in a change in the qualifications that are 
> imposed for federal elections by the federal constitution).
>
>
> The taken-for-granted state-sovereignty rhetoric about the
>
> federal suffrage could have practical implications if the lower courts 
> take up the Court's invitation and bring such a prism to bear on 
> questions about whether Congress (or the EAC) or the states should get 
> deference about what is "necessary" enforcement.
>
>
> The sovereignty framing could have even bigger practical
>
> implications if some states respond to /Intertribal/ by trying to 
> expand the set of rules that are considered qualifications (e.g., 
> re-casting voter registration as a qualification).  On a state 
> autonomy view of the suffrage, state legislatures could freely add and 
> subtract from the list of judicially-enforceable qualifications in 
> ways that are consistent with their partisan preferences (i.e., 
> another expansion of Rick's "voting wars").  On the older "republican" 
> and federal view of voter qualifications under 1/2/1 (what I argue is 
> the dominant, though not the only available interpretation in the 
> founding records), by contrast, the federal constitution aimed equally 
> at limiting the discretion of Congress and the state legislatures.  It 
> was no accident that the original 1/2/1 suffrage was built on 
> qualifications that were understood to have constitutional 
> ("fundamental" not ordinary law) status in all thirteen states, either 
> in express text or customary constitutional tradition.  (This older 
> reality is reflected in the fact that 1/2/1 carefully avoids the 
> "state legislature" language that is found in the other elections 
> provisions delegating to the states.)
>
>
> I am not saying that the Court will ever be drawn back to
>
> the "republican" (constitutionalized) interpretation of the suffrage.  
> (It might require an especially originalist decision to return to a 
> set of understandings that have been so completely forgotten.)  I mean 
> that as a matter of _practice _(as, for example, is reflected in Josh 
> Douglas's writing about the state constitutions), we _still_ live in a 
> system where the formal qualifications are (very imperfectly but 
> mostly) constitutional in nature.
>
>
> Under this system of a constitutional-ized suffrage, there has
>
> always been room for ordinary discretion and manipulation related to 
> voter qualifications.  This might be even more true today when the 
> ideological underpinnings of the state constitutional qualifications 
> have gone missing.  Some states, e.g., Texas, have shifted towards 
> constitutional qualifications that include broad delegations to the 
> legislature. A few have dropped qualification rules from their 
> constitutions altogether.  Governors often have significant 
> discretionary power over the suffrage through their decisions about 
> pardons and voter restoration.  Local enforcement decisions (as 
> explored by Alec Ewald) have long been where much on-the-ground 
> enfranchisement is decided...  Important state constitutional changes 
> to the suffrage have come through outright fraud (see, e.g., Rick 
> Pildes's essay on racially-disenfranchising conventions)...  Despite 
> this 'play in the joints' though, my view is that the predominantly 
> constitutional nature of the formal suffrage rules has meant that the 
> far greater part of U.S. electoral manipulation has been channeled 
> into procedural (dis)enfranchisement (i.e., legislation and 
> administration of "times, places, and manner" rules)--a kind of 
> (dis)enfranchisement that can be accomplished through ordinary 
> politics and ordinary administration, not the higher hurdle of a 
> constitutional amendment.
>
>
>
> In the future, if the suffrage qualifications continue to be
>
> mostly constitutional, then a state legislature can't just willy-nilly 
> decide to recast a practice like voter registration as a qualification 
> that is under its sovereign control and not Congress's 1/4/1 
> supervision (as some fear will happen in response to the logic of 
> /Intertribal/).  In many (not all) states, it isn't so easy to amend 
> state constitutional eligibility rules. If, on the other hand, a new 
> free-reign state-legislative determination of voter qualifications 
> were to displace the extant mostly constitutional structure of the 
> qualifications, then we really could have an expansion of the field 
> for "the voting wars" and, under the Intertribal /dicta/, a 
> redistribution of authority to the states.  On my reading of Scalia, 
> however, I don't see free-reign legislative manipulation as being the 
> drift of his push for agency/judicial determination of what is 
> "necessary".
>
>
>
>  3. _"Time_
>
> _bomb" in J. Scalia's insistence that_ _Congress's Elections Clause 
> power is a preemption power?_
>
>
> There's no denying the breadth of much of the majority's
>
> language about the scope of Congress's Elections Clause power 
> [1/4/1].  On this (not unprecedented) interpretation, for example, 
> Congress would have had the authority to take over some state 
> redistricting functions for House elections (as was proposed by 
> President Truman).  J. Thomas's desired narrowing of the power to 
> election mechanics clearly loses out.  But I wonder--here I am really 
> not sure--if there are unnoticed time bombs in J. Scalia's language 
> and analysis of _Congress's power as being a preemption power and only 
> a preemption power_.
>
>
> Scalia tells us that 1/4/1 has [only?] two functions:  to impose the 
> States' duty to prescribe the
>
> rules and to confer Congress's power over these rules.  Note that 
> Scalia's two functions closely track the clause's language about 
> "prescrib[ing]" "regulations".  But his textual literalism has the 
> potential to be newly restrictive because traditionally, always, 
> there's been a whole lot more than rule prescription implicit in both 
> the states' duty and in Congress's power. The states have been taken 
> as having _a default duty to administer and fund federal elections, 
> not merely create rules for them_.  And the Congress has been taken as 
> having significant  (not uncontroversial or unlimited) 
> _'commandeering' power, as well as the alternative to assume duties of 
> election administration for itself, not merely power to preempt 
> specific state regulations_.
>
>
> In fact, the NVRA's 'commandeering' seems to be taken for
>
> granted in the opinion's early statement of facts:  "...the Act 
> _requires a State to establish procedures_ for registering to vote in 
> federal elections "by mail application..."  And another section 
> "requires States to "accept and use" a standard federal registration 
> form."  But this is not analyzed.
>
>
> Instead, Scalia goes out of his way to emphasize the
>
> preemption-only nature of Congress's 1/4/1 power:  "Because the power 
> the Elections Clause confers is none other than the power to pre-empt" 
> (11-12, FN 6) .  "...because the text of the Clause confers the power 
> to do exactly (and only) that" (11, FN 6).
>
>
> More specifically, Scalia seems to make some moves that
>
> don't strike me as textualist.   He re-writes the text's "make or 
> alter" power as "alter or supplant" and he turns "such 
> regulations"**into "those regulations" (5) with the latter (I think) 
> shifting the field of possible preemption from a power over 
> times-places-manner regulations in general ("such regulations") to the 
> potentially narrower category of regulations that have in fact been 
> prescribed by the states ("those regulations").
>
>
> I suppose it's possible to read these rewrites of the text
>
> as only motivated by Scalia's larger point about the irrelevance of 
> the presumption against preemption.  On this view, the narrowing 
> implications of the preemption-only language are inadvertent--caused 
> by a textualist lack of focus on the traditional duties and commands 
> that don't fit well with the text's literal language of rule 
> prescription, and by lack of consideration of the possibility that 
> Congress might contemplate novel election reforms or direct election 
> administration that doesn't sound like a mere altering or supplanting 
> of specific state laws.  Or maybe he is just speaking about 
> "preemption" in a really loose sense of federal rather than state 
> power.  I have no idea.  It just seems there are idiosyncratic and 
> absolute-sounding formulations here that don't reflect the regime we 
> have actually had.
>
>
>
> 4. _The Court's_
>
> _denial of Congress's Elections Clause power over voter qualifications_
>
>
> I don't understand why this should fall into the category of
>
> "time bomb".  Not to dispute the significance of this clarification of 
> the law, or that it will have consequences (perhaps opening up some of 
> the questions Marty Lederman and others have posed about the 
> availability of other constitutional bases of power for the handful of 
> federal laws that may or may not veer into the "voter qualifications" 
> category).  My dissonance is simply that I can't fit a "time bomb" 
> metaphor to an interpretation that (to me) has seemed foreseeable, 
> probably inevitable, for many years and thus I don't see why any of 
> the justices should've hesitated to go along.
>
>
> As I've argued here before, I think the contrary view would
>
> have required defense of an interpretation that's unusually anomalous 
> in terms of original history, the text ("times, places, and manner"), 
> and most of the long arc of legislative and judicial precedents.  So 
> pick any fairly conventional methodology of interpretation.  The four 
> "liberal" justices could be troubled by our practices of felony 
> disenfranchisement laws.  They could think Congress a trustworthy 
> holder of a qualification-setting power.  Yet still they could find 
> this an easy call for reasons of interpretive integrity.
>
>
> 5. _J. Thomas's_
>
> _opinion_
>
>
>
> I am surprised at the thinness of J. Thomas's history of the
>
> Elections Clause.  To me, it reads like his reading was restricted to 
> a slim, heavily-redacted volume of documents from the founding.  (In 
> /U.S. Terms Limits/, by contrast, he was the justice who most noticed 
> that the founding debates don't sit easily with modern assumptions, 
> though like the rest he eventually explained them away.)  He's right 
> that the founding records are full of concern to avoid congressional 
> discretion to jigger qualification rules.  But this is at best half 
> the story.  For many (including the Madison he quotes) state 
> legislatures weren't supposed to do this either.  The voter 
> qualifications were to be treated as fixed constitutional law in order 
> to avoid factional manipulation and (relatedly) also to express the 
> whig or republican tenet (or fiction?) by which only "the people" 
> could decide which subset of the people would be eligible to represent 
> them as electors.
>
> J. Story's view was somewhat closer to Thomas's, but it takes a whole 
> lot of redacting and cherry-picking to present this as a majority view 
> (e.g., editing out the second half of a Madison quotation about the 
> suffrage).[1] <#_ftn1>
>
>
> The evidence that Thomas cites for carving-out the power of
>
> qualifications-enforcement from the Elections Clause is even thinner, 
> including for example the question-begging fact that the pre-U.S. 
> states had some history of state enforcement of qualifications (!) 
> (7). And J. Thomas, in order to sharply narrow the Elections Clause 
> power to election "mechanics", relies on a single (out-of-context) 
> quote from the (not very sophisticated) state of North Carolina to 
> argue that the word "manner" in 1/4/1 was an intentional new coinage 
> and a departure from a concededly broader traditional understanding of 
> "manner" election regulation...
>
>
> Maybe this is enough to
>
> convince me that history is not where the courts should be.  (They don't have as much time as a
> specialized academic.)  But I do
> appreciate that Thomas has, in other cases, made in-depth effort to read in relevant
> primary sources.  Even if you hate
> originalism, it seems to me that--if the courts are deciding more and more of
> the constitutional election-law questions that have been previously more shaped
> in Congress, the states, and other forums--then it is fitting for the courts to act with as
> much awareness of past practice and meaning as is reasonable, including
> congressional and state legislative precedents, state constitutional
> traditions, and non-court-centered forms of constitutionalism (including the
> post-civil-war history mphasized in Joey Fishkin's post).
>
> ------------------------------------------------------------------------
>
> [1] <#_ftnref1> My basic presentation of the eighteenth-century 
> "republican" theory of the suffrage is available in an old rough draft 
> posted on SSRN.  Over the summer, I may (I'm not sure) post one or two 
> more specific companion pieces about the eighteenth-century.  My 
> account of the suffrage over the whole course of U.S. history is still 
> a work-in-progress, but I can offer the 2010 abstract that I used for 
> a Loyola-Chicago conference.
>
> [My goal here is actually not to draw attention to my 18th c. 
> research.  I'd rather wait for more polished work.  This is about 
> defensive desire to avoid appearing eccentric given my views of the 
> early history can sound so distant from conventional wisdom...]
>
> *How **Democratic is U.S. Suffrage Law?*
>
> In How Democratic is the American Constitution/, /Robert Dahl lists 
> the U.S. constitution's failure to fix the suffrage as its second 
> worst democratic deficit (second only to the evil of slavery).  
> According to Dahl, Madison in 1821 looked back on the founding with 
> pangs of remorse for this failure to fix the suffrage in the 
> constitution. In fact, Dahl is misquoting Madison (thereby rendering 
> him consistent with modern, rather than late-eighteenth-century, 
> understandings of the suffrage).  Both the Madison of 1821 and the 
> Madison of 1788 actually crowed that the US constitution/had/ 
> successfully fixed the suffrage.  The federal voter qualifications for 
> the U.S. House of Representatives were "fixed" according to the 
> respective state voter qualifications, and the latter were, in turn, 
> "fixed" in the state constitutions, subject to alteration only through 
> constitutional amendment.  This institutional choice reflected a now 
> forgotten "republican" tradition that taught that important election 
> rules ought to be "fixed" in constitutions, not left to mere ordinary 
> law, in order to protect popular sovereignty and limit electoral 
> manipulation for incumbent, factional or partisan advantage.  Oddly, 
> while this tradition as a /discourse/ has been forgotten, it has 
> largely survived as an un-remarked /practice/.  Consistent with the 
> founding expectations--over the course of U.S. history, the law of 
> voter qualifications (unlike the law of voting procedures) has 
> been--not perfectly--but mostly a matter of constitutional law.  This 
> structure of US election law raises an empirical question:  Has U.S. 
> suffrage law in fact been more "republican" or democratic than it 
> would have been if the suffrage had been left to the play of ordinary 
> legislatures? How differently might the forces of enfranchisement and 
> disenfranchisement have played out over time if US suffrage law had 
> not been constitutional-ized?
>
>
>
>
>
>
>
>
>
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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

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