[EL] informal thoughts on Intertribal "time bombs"

[Sam Bagenstos]

Yup.  Seems the most plausible explanation to me.

Sent from my iPad

On Jun 20, 2013, at 12:35 AM, "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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