[EL] Sleeper Case of the Year

[Scarberry, Mark]

A quick response to Marty, which is all I have time for now.

Will anyone argue seriously that the Founders thought the Elections Clause would let Congress determine who could vote in House elections? My statement was that the Elections Clause was not designed to allow that.

Black's opinion in Oregon v. Mitchell, if I understand it correctly, is incoherent, to the extent it relies on the Elections Clause. He says that Congress can determine who can vote in House elections, but that states can determine who can vote in state elections. How can that possibly square with the  provision in I, 2, 1 equating those who can vote for the House with those who can vote for the most numerous branch of the state legislature?  I don't think any other Justice relied on the Elections Clause, but I could be wrong. Douglas relied on the 14th Amendment including its P or I Clause. Brennan, White, and Marshall relied on the 14th and 15th Amendments, not the Elections Clause, I think. Stewart's opinion (for himself and two others) flatly rejected reliance on the Elections Clause, but relied on the right to travel/migrate and the 15th Amendment with regard to the residency and literacy test provisions, respectively.

The Court certainly got it right on the literacy test issue; the enforcement powers under the 14th & 15th Amendments amply supported the prohibition on literacy tests, as they would have under current notions of congruency and proportionality, which may be determinative here.

More later, perhaps, but maybe others will weigh in first.

It seems to me that a holding that the Elections Clause does not give Congress the power to allow persons to vote without showing that they are eligible to vote would not be earthshaking.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

From: Marty Lederman [mailto:lederman.marty at gmail.com]
Sent: Sunday, March 17, 2013 1:41 PM
To: Scarberry, Mark
Cc: law-election at uci.edu
Subject: Re: [EL] Sleeper Case of the Year

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<http://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 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



-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20130317/07a4dedf/attachment.html>