[EL] "A Structural Theory of Elections

[Edward Still]

Did any of the amicus briefs in *Shelby County v. Holder* make this
argument?

Edward Still
Edward Still Law Firm LLC
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still at votelaw.com
www.votelaw.com/blog
www.edwardstill.com
www.linkedin.com/in/edwardstill <http://www.linkedin.com/edwardstill>



On Mon, Mar 25, 2013 at 9:33 AM, Rick Hasen <rhasen at law.uci.edu> wrote:

> “A Structural Theory of Elections” <http://electionlawblog.org/?p=48685>
>  Posted on March 23, 2013 9:21 pm <http://electionlawblog.org/?p=48685> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Franita Tolson has posted this draft
> <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2228350>on SSRN.
> Here is the abstract:
>
> Scholars and courts have hotly debated whether section 5 of the Voting
> Rights Act is constitutional under the Reconstruction Amendments. In these
> debates, attention has focused almost exclusively on the provisions in the
> Fourteenth and Fifteenth Amendments that authorize congressional
> enforcement. This Article argues that there is a better, more sure way to
> ground section 5 of the Voting Rights Act in the Constitution by exploring
> the structural inferences that emerge from viewing these Amendments
> holistically. In particular, this Article draws important lessons from
> section 2 of the Fourteenth Amendment, which allows Congress to reduce a
> state’s representation in the House of Representatives for abridging the
> right to vote in state and federal elections for “any reason except for
> participation in rebellion, or other crime.”
>
> This Article contends that section 2 influences the scope of congressional
> authority under section 5 of the Fourteenth Amendment, which gives Congress
> the “power to enforce, by appropriate legislation, the provisions of this
> article.” Section 2, with its low threshold for violations that trigger a
> relatively extreme penalty, illustrates the proper means/ends fit for
> congressional legislation to address voting rights violations. Renewed
> focus on section 2 also sheds light on the textual and historical link
> between the Fourteenth and Fifteenth Amendments, a link that provides a
> broad basis for Congress to regulate state elections. This Article
> concludes that requiring preclearance of all electoral changes instituted
> by select jurisdictions under section 5 of the Voting Rights Act is
> actually a lesser penalty than reduced representation under section 2, and
> is thus consistent with Congress’s broad authority to regulate voting and
> elections under the Fourteenth and Fifteenth Amendments.
>
> I just had a chance to read this impressive piece.  There is a lot of
> history surrounding the passage of the 14th and 15th amendments which is
> important and was neglected until this piece. Download it while it’s hot!
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D48685&title=%E2%80%9CA%20Structural%20Theory%20of%20Elections%E2%80%9D&description=>
>   Posted in Supreme Court <http://electionlawblog.org/?cat=29>, voting<http://electionlawblog.org/?cat=31>,
> Voting Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
>
> 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
>
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