[EL] Sleeper Case of the Year

[Marty Lederman]

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
).


> 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 24thAmendments 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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