[EL] Sleeper Case of the Year

Sun Mar 17 15:11:32 PDT 2013

I didn't say it was necessarily all based on Elections Clause authority,
Mark, and I noted that the justices in O v. M relied upon an array of
theories.  As did Congress when it passed the 1975 OCVRA.

I think it's fair to read "the electors in each state shall have the
qualifications requisite for electors of the most numerous branch of the
state legislature" as a floor, not a ceiling; but in any event, that clause
deals only with elections for the House, and my point was only that
Congress's power to determine who can vote in federal elections remains
very much an open question, and that several important laws from 1970 on
have relied upon the assumption that Congress has some such authorities,
beyond those that a Boerne-like reading of 14/5 would recognize.

Oh, and also that this case doesn't involve a disagreement about
qualifications -- only about the requisite means of establishing one of
them.

On Sun, Mar 17, 2013 at 5:58 PM, Scarberry, Mark <
Mark.Scarberry at pepperdine.edu> wrote:

> 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 14
> th 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 15thAmendment 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
> ).
>  ****
>
> 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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