[EL] Task force, 50-state audit

Wed Mar 25 13:03:19 PDT 2020

Two additional notes:  First, Congress may seek to voluntarily induce state compliance with federal standards concerning state and local elections under the Spending Clause, as it did in HAVA.  In terms of coercive authority, however, which was what I had been talking about, neither the Elections Clause, Presidential Electors Clause, nor other constitutional provisions apart from the various Enforcement Clauses apply to state and local elections.

Second, the Court has held that, when Congress is exercising its prerogative to regulate federal elections, it may regulate other (i.e., state and local) elections being held simultaneously, as an incident of that power.  But that does not mean Congress may regulate the conduct of state and local elections that occur independently of federal races.

MTM

________________________________
From: Mark Scarberry <mark.scarberry at pepperdine.edu>
Sent: Wednesday, March 25, 2020 3:56 PM
To: Michael Morley <mmorley at law.fsu.edu>
Cc: Jeff Hauser <jeffhauser at gmail.com>; Michael Latner <mlatner at calpoly.edu>; law-election at department-lists.uci.edu <law-election at department-lists.uci.edu>
Subject: Re: [EL] Task force, 50-state audit

I don't think Michael's point 2 is correct and would like to see citations. On the other side, see McPherson v. Blacker and more recently the Palm Beach County case, with regard to the plenary power of legislatures to determine the manner by which their states appoint electors.

Mark

[Pepperdine wordmark]
Caruso School of Law

Mark S. Scarberry
Professor of Law
mark.scarberry at pepperdine.edu<mailto:mark.scarberry at pepperdine.edu>

On Wed, Mar 25, 2020 at 12:42 PM Michael Morley <mmorley at law.fsu.edu<mailto:mmorley at law.fsu.edu>> wrote:
1.   The Constitution grants the legislature of each state power over the "Manner" in which: (i) congressional elections will be conducted, and (ii) the state's presidential electors will be chosen.   The Constitution gives Congress authority to "Make or Alter" any rules concerning congressional elections that a state (through its legislature) establishes -- and it may exercise this authority regardless of whether the state itself has acted.  Circuit courts have concluded that Congress' power under the Elections Clause is not subject to the Tenth Amendment's anti-commandeering constraints.

The Constitution does not contain an equivalent express grant of authority to Congress over Presidential elections.  For well over a century, however, the Supreme Court has consistently held that Congress' power over popular presidential elections (i.e., the elections held once a state has decided to appoint its electors based on the outcome of a popular vote) is equivalent to its authority over congressional elections.  The Court generally reads the Elections Clause and Presidential Electors Clause in pari materia with each other, despite the substantial differences in constitutional language, purpose, and separation-of-powers and federalism considerations between the clauses.

2.  Congress' authority over state and local elections is narrower, limited to its authority under the Enforcement Clauses of the 14th Amendment and various voting rights amendments (i.e., 15th, 19th, 26th).  City of Boerne v. Flores's "congruence and proportionality" test curtailed Congress' virtually plenary authority under the Enforcement Clause that the Court had previously recognized during the Civil Rights Era.  Though the Court has not yet addressed the issue, Boerne's reasoning and holding likely apply with equal force to the voting rights amendments' enforcement clauses, as well.  That's why many federal laws that seek to improve election administration, such as the NVRA and HAVA, apply only to federal elections.  Congress may regulate state and local elections only when it's protecting constitutional rights, such as by eliminating unconstitutional barriers to voting or combatting unconstitutional racial discrimination (as with the Voting Rights Act).  Nevertheless, because it would be very costly, inconvenient, and confusing to have two different voting systems - one for federal elections, one for all other elections - states generally voluntarily choose to apply federal standards and requirements to elections at all levels of government.  For a discussion of these issues, including a more detailed explanation of the precise scope of Congress' authority over different types of elections, limitations on that power, and an analysis of its legal underpinnings, see my piece, "Dismantling the Unitary Electoral System?  Uncooperative Federalism in State and Local Elections," 111 Nw. U. L. Rev. Online 103 (2017), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2742719<https://urldefense.com/v3/__https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2742719__;!!PhOWcWs!gEWRVcoNzZehvTttyHOgFrm83KX_IBhs26o6-MbJKtbLRbS_qT8tUzLvLxSUmejbfCo$>

For more on how Boerne limited the scope of Congress' power to enforce constitutional rights in the context of elections and ways of avoiding potential constitutional problems, see "Prophylactic Redistricting?  Congress' Section 5 Power and the New Equal Protection Right to Vote," 59 Wm. & Mary L. Rev. 2053 (2018), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3216936<https://urldefense.com/v3/__https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3216936__;!!PhOWcWs!gEWRVcoNzZehvTttyHOgFrm83KX_IBhs26o6-MbJKtbLRbS_qT8tUzLvLxSU_DMTx-Q$>.

Michael

Michael T. Morley
Assistant Professor of Law
Florida State University College of Law
(860) 778-3883

On Wed, Mar 25, 2020 at 1:02 PM Rich,William D <rich at uakron.edu<mailto:rich at uakron.edu>> wrote:

Technically, Mark is correct that Congress’s power to regulate the time, place, and manner of elections does not apply to presidential elections but, as a practical matter, it does because it would be unfeasible for states to conduct congressional elections using one system and presidential elections using another.  From an election administration perspective, that would be a nightmare, and very expensive.  The reality is that, if Congress prescribes certain procedures for conducting Congressional elections, the states will have no realistic choice about using those procedures in presidential elections.

Bill Rich

University of Akron School of Law and

Chair, Summit County Board of Elections
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