[EL] "A Structural Theory of Elections

[Franita Tolson]

No, I just finished drafting this piece in the last month or so. Jack Chin,
Dan Tokaji, and I submitted an amicus brief making the Elections Clause
argument, but I was not able to get this argument in front of the Court.

On Mon, Mar 25, 2013 at 12:17 PM, Edward Still <still at votelaw.com> wrote:

> Did any of the amicus briefs in *Shelby County v. Holder* make this
> argument?
>
> Edward Still
> Edward Still Law Firm LLC
> 130 Wildwood Parkway STE 108-304
> Birmingham AL 35209
> 205-320-2882
> 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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>
>
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-- 
Franita Tolson
Assistant Professor
Florida State University College of Law
425 West Jefferson St.
Tallahassee, FL 32306-1601
Phone: 850-644-7402
Email: ftolson at law.fsu.edu
Check out my blog: http://democracyanddistrust.blogspot.com/
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