[EL] Sleeper Case of the Year

Sun Mar 17 13:09:46 PDT 2013

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

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Sunday, March 17, 2013 11:33 AM
To: bzall at aol.com
Cc: law-election at uci.edu
Subject: Re: [EL] Sleeper Case of the Year

I agree that there are a number of paths for the Court to reverse the 9th Circuit without calling the general constitutional Elections Clause power into question.
On 3/17/13 11:19 AM, bzall at aol.com<mailto:bzall at aol.com> wrote:
As I pointed out last week, I have a different view of this case, but it fits this discussion as well.

The Court need not strike a mighty blow in reversing. It doesn't even have to address the Elections Clause at all.

It need only look at the purposes of the NVRA. If there is, as the 9th Circuit opined, really only one "goal" (note the singular) -- making voter registration as easy as possible -- then the Court can uphold the 9th Circuit opinion, and find that the federal agency's interpretation is reasonable and thus enforceable. If, as many other courts, including the Supremes, have held, there are four (or at least two) goals (note the plural) enumerated in the statute -- "increas[ing] the number of eligible citizens who register to vote," "enhanc[ing] the participation of eligible citizens as voters," "protect[ing] the integrity of the electoral process" and "ensur[ing] that accurate and current voter registration rolls are maintained." 42 U.S.C. § 1973gg(b)(1), (2), (3), and (4) -- then the Court can simply say that the 9th Circuit's opinion, and that of the federal agency interpreting the statute, is not reasonable and cannot be sustained. Statutory interpretation. Courts must not "rubberstamp ... administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute." Bureau of Alcohol, Tobacco and Firearms v. Federal Labor Relations Authority, 464 U.S. 89, 97 (1983), quoting, NLRB v. Brown, 380 U.S. 278, 291-292 (1965).

No challenge to federalism, and no earthshaking interpretation of the Elections Clause.

It's a simple case: was the EAC correct in striking the balance where Congress intended it to be? If so, sustain it. If not, strike the 9th Circuit's opinion deferring to that interpretation.
Barnaby Zall
Of Counsel
Weinberg, Jacobs & Tolani, LLP
10411 Motor City Drive, Suite 500
Bethesda, MD 20817
301-231-6943 (direct dial)
bzall at aol.com<mailto:bzall at aol.com>
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-----Original Message-----
From: Michael McDonald <mmcdon at gmu.edu><mailto:mmcdon at gmu.edu>
To: law-election <law-election at uci.edu><mailto:law-election at uci.edu>
Sent: Sun, Mar 17, 2013 12:43 pm
Subject: Re: [EL] Sleeper Case of the Year

Perhaps a ruling could be narrowly tailored to the Arizona circumstances,

but I think Rick is right that a ruling in favor of Arizona could have some

deep and perhaps unintended consequences.

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