[EL] informal thoughts on Intertribal "time bombs"

[Kirsten Nussbaumer]

Thanks for the response, Brad.  I was actually not making any implication of insincerity (nor was I thinking it).  Maybe it was naive of me--but I went through the belabored effort to make sense of the majority reasoning on its face because I was taking it seriously (an exercise that could feel wasted if, as some think, the availability of these invited EAC or court actions turns out to be iffy.)

best,
Kirsten


On Jun 19, 2013, at 03:35 PM, "Smith, Brad" <BSmith at law.capital.edu> 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] 
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] 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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