[EL] Sleeper Case of the Year

Sun Mar 17 17:28:57 PDT 2013

Against my better judgment, I'll quickly chime in too (writing to clarify--or, really to muddy-the questions, not to take a specific position on Intertribal, and focusing on the Article One issues without intending to prioritize them over post-Civil War developments).

(1) Regarding Jon Roland's narrow reading of the Elections Clause as not covering "ancillary" matters like districting and registration, the breadth of mainstream interpretations of Congress's power has waxed and waned over the course of U.S. history, but it started out as broad as the broad language in many of the SCT precedents that are relied on today.  (This very breadth is one of the reasons why so-called "Anti-Federalists" feared the potential congressional manipulation, and why there was such a lengthy post-founding effort to amend the clause to limit Congress's power to cases of a state's default on election administration duties.) 

In fact, the choice between districts and at-large systems for congressional representation was one of the salient, not marginal, issues in the ratification debates about 1/4/1--probably because some of these participants had first-hand experience with the district/at-large choice as a partisan back-and-forth in some of the states and colonies (with the at-large choice seen as favoring the election of "gentlemen" over the rubes who didn't have the state-wide reputation or the organizational resources to compete beyond the locality.) 

The Elections Clause was also specifically defended during Ratification as a remedy for states that would be unwilling to correct their mal-apportioned congressional districts (i.e., something very much like 'one-person, one-vote').  The Clause was also more sporadically mentioned in connection with campaign "bribery" and treating.  

Many ratification participants did prefer that Congress use its 1/4/1 power only for cases of state default, but this is not the same as an argument that the power only extends that far.  

And none of this, of course, is to say that there no outer limits to a times, places, and manner power--only that the suggested narrowing to matters ancillary to the act of individual vote-casting would be a break with much of the history (especially of course the 1842 districting law...)

(2) Mark's point #1 that the Elections Clause was not designed to cover the formal voter qualifications, and that this claim should be accepted as "obvious" gets my vote.  Many legal scholars still argue otherwise but their arguments always seem to derive from J. Black's opinion in OR v. Mitchell.   Here I'm with Mark's implication that Black's reading of the founding materials isn't in the "reasonable minds can differ" category.   (Not a knock on Black since he was writing before many of the more comprehensive documentary collections existed).  Now that it's easier to be well-read in the primary sources, I think an expansion of the Elections Clause to cover the formal suffrage would have to be based on a non-historical constitutional methodology.

(3) Respectfully I think Mark's points #2-3 are not in the "obvious" category, and that they don't follow from his point #1 without adding some much more controversial assumptions (or assumptions that should be controversial). 

We probably agree (consistent with the express language in some 20th century SCT opinions, and consistent with the spirit, not the language, of the late-18th century) that the division of labor between the 1/4/1 "times, places and manner" power and the House voter qualifications of 1/2/1 has (contra J. Black) usually been fairly characterized as a dichotomy between procedure and substance. 

Then, of course the rub, as always, is in drawing a line between substance and procedure.  I'm not pre-committed on this, but I suspect Mark's suggestion--that enforcement of eligibility requirements does not fall on the procedure (1/4/1) side of the line--would be far-reaching and inconsistent with a good deal of historical practice.   (Should voter registration have never been placed in the procedural box for so many generations because, after all, a registration requirement could be cast as a voter qualification?)   I am, however, committed to the position that an election rule or practice cannot be coherently excluded from 1/4/1 coverage merely because it has the potential to shape substantive outcomes.  (The Elections Clause ratification debates are replete with awareness that any procedural election rule can and will be chosen and implemented to impact election outcomes.  Election lawyers and political operatives today are not more savvy about these engineering possibilities.)

So, reasonable minds may differ on what is and is not a voter qualification.  The more central issue for me (the main reason why I decided to post this reply) is that Mark's argument that enforcement of eligibility is not within the  "times, places and manner" power seems to rest on an implicit (probably commonly-held) view that the formal eligibility rules of 1/2/1 (and of the post-17th Amendment Senate electorate?) are the sovereign states' domain and not an inherently federal constitutional definition of the right to vote--with the important implication that this is not preeminently a matter for Congress to protect through its 1/4/1 power.  This state-sovereignty casting of the Article One suffrage leads Mark to turn to the post-civil war amendments, congruence-and-proportionality tests, etc. to arrive at a potentially very stingy reading of the congressional 1/4/1 power.

This unstated state sovereignty assumption might be obvious to most readers, but I don't think it should be.  Another reading of the historical materials is that 1/2/1 started out as a federal 'incorporation by reference' of the states' voter qualifications (defined in the thirteen state constitutions or customary constitutions).  Then the fact that the US Constitution piggybacks on rules defined by the states does not make them any less federal-governmental in character.  (It would be a different matter under Article One if we were talking only about a state election.)  Certainly, the American constitutional tradition includes strong state-sovereignty readings of the federal voter qualifications, but to me, these are a later, more bounded historical development than is now realized. 

Taking the federal 'incorporation by reference' view may flip what counts as "obvious" about Congress's preemptive power to police the satisfaction of eligibility requirements through the Elections Clause.  (Compare the fact that the U.S. House has used its Judging Elections power to evaluate the eligibility of voters in a contested election without the chosen congressional methods of evaluation being seen as an unconstitutional re-write of the 1/2/1 qualifications.) 

Here, I admit my views about the early federal cast of the voter qualifications under Article One are not quite 'out there' in the historical or legal literatures.  I may later post one or two of my historical papers about the early suffrage.  Until I do, I won't try to convince list-members I'm right.  All I seek here is to make the underlying assumption transparent and not taken for granted.

Thanks!
Kirsten
--Now, I see there were more posts written while I scribbled.  Unfortunately, I must go off-line.

On Mar 17, 2013, at 01:09 PM, "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu> wrote:

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 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 
_____________________________________________________________ 
U.S. Treasury Circular 230 Notice 

Any U.S. federal tax advice included in this communication (including 
any attachments) was not intended or written to be used, and cannot be 
used, for the purpose of (i) avoiding U.S. federal tax-related penalties 
or (ii) promoting, marketing or recommending to another party any 
tax-related matter addressed herein. 
_____________________________________________________________

-----Original Message-----
From: Michael McDonald <mmcdon at gmu.edu>
To: law-election <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. 

_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu
http://department-lists.uci.edu/mailman/listinfo/law-election

-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu
http://department-lists.uci.edu/mailman/listinfo/law-election
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20130318/b4f9810b/attachment.html>