The Framers of the United States Constitution wrote the Elections Clause to address concerns that... more The Framers of the United States Constitution wrote the Elections Clause to address concerns that the states would fail to call congressional elections and weaken the already fragile new government. The Clause is a delegation of sovereignty from the states to the federal government because, although states select the “time, place, and manner of elections,” U.S. Const. Art. I, Sec. 4, Cl. 1, Congress retains final policymaking authority over federal elections through its veto power, or ability to “alter or modify” state electoral schemes. In essence, Congress’s veto power over state practices deprives states of the hallmark of sovereignty: final policymaking authority. But the Clause, which forms the basis of our electoral system, has largely been ignored in analyzing the constitutionality of federal legislation that modifies or alters state electoral practices.
In particular, the states’ lack of sovereignty over elections has not informed the Supreme Court’s analysis of section 5 of the Voting Rights Act of 1965. Recent caselaw has criticized section 5 on the grounds that it unduly interferes with state sovereignty by requiring states to preclear any change to their election laws with the federal government before the change can go into effect. To support its argument that the Act intrudes on state sovereignty, the Court has employed a federalism norm, which is a free floating conception of the federal/state balance of power that is not tied to the constitutional text or structure. Using this norm, the Court has deferred to the states over the matter of elections under the guise of restoring the “original” balance of power between the states and the federal government in this area.
This presumption that the states’ authority over elections is sovereign represents a basic misunderstanding about the structure of our government. The constitutional text and structure give Congress sovereign authority over all state election laws that govern federal elections and implicate the constitutional right to vote, while states retain plenary authority over federal elections and have, at best, limited sovereignty over practices that only implicate state elections.
Unlike most of the legal commentary, I do not seek to excuse or legitimize the Voting Rights Act as a justified incursion on state sovereignty. Rather, this article argues that the federalism norm and the overblown concerns about state sovereignty have little place in analyzing the continued constitutionality of the Voting Rights Act. First, the theories of federalism employed by the Court and the commentary do little to explain the allocation of power between the states and the federal government over elections. As the historical record shows, the Founders did not intend that the structure of the Elections Clause be federalist; rather, it is best viewed as having a decentralized organizational structure that prioritizes federal law. Along these lines, the Clause permits states to choose the time, place, and manner of elections in the first instance, in essence allowing them to play a managerial role in overseeing our electoral system. But the text provides for only one sovereign - Congress - who can alter or modify state plans at will. During the ratification debates, the states recognized that the Elections Clause represented an abdication of sovereignty over elections. Thus, “sovereignty” inaccurately describes the states’ role in our system, in which they have autonomy, or plenary and nonfinal authority, over elections.
Second, the Court’s conflation of “sovereignty” and “autonomy” in its federalism doctrine has bled over into its Voting Rights Act jurisprudence, resulting in an ill conceived and misplaced deference to state authorities and a narrow view of their obligations under the Act. The article concludes that when Congress’s power under the Elections Clause is combined with its ability to enforce the mandates of the Fourteenth and Fifteenth Amendments, which prohibit discrimination in all elections, the Voting Rights Act represents an appropriate use of congressional power to alter or modify state electoral practices.
The Framers of the United States Constitution created our system of federalism based on the princ... more The Framers of the United States Constitution created our system of federalism based on the principle that political safeguards would protect the regulatory interests of the states from overreaching by the federal government. While many of these safeguards have since failed, others have emerged to insulate the states from an ever-expanding federal presence. One such safeguard is partisan gerrymandering, which allows states to draw legislative districts that reflect the partisan affiliation of a majority of the electorate, and in turn, send a delegation to Congress that is as ideologically cohesive as practicable. In making this argument, this Article corrects a basic misunderstanding in the political safeguards literature: that the Senate is the only chamber that the Framers constructed to protect state interests. In reality, a politically cohesive House delegation can ensure that the state’s preferred policy preferences shape federal lawmaking.
This Article also illustrates that, in the context of congressional redistricting, the legal scholarship’s sole focus on ascertaining manageable judicial standards ignores the concerns about institutional legitimacy and judicially dictated political outcomes that are exacerbated by the federalism issues in this area. Despite the absence of standards, the broader structural implications of promoting “federalism-reinforcing” gerrymandering require the Supreme Court to craft rules that encourage the use of mid-decade redistricting and at-large voting schemes; that limit the authority of independent commissions to draw redistricting plans; and that promote strong state political parties, all of which will help preserve the states’ ability to utilize the federalism benefits that flow from partisan redistricting.
For over a century, Section 2 of the Fourteenth Amendment has been a dead letter, but recent chal... more For over a century, Section 2 of the Fourteenth Amendment has been a dead letter, but recent challenges to voting rights demand that we resurrect this long forgotten provision. The thesis of this Article is that Section 2, which allows Congress to reduce a state's delegation in the House of Representatives if the state abridges the right to vote, gives Congress the authority to address virtually any abridgment of the ballot through its Section 5 enforcement power. Specifically, this Article contends that Section 2, with its broad language unencumbered by references to race or color, provides constitutional justification for section 2 of the Voting Rights Act, the validity of which has come under fire in recent years. Section 2 of the Voting Rights Act forbids any voting " standard, practice, or procedure " that " results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color. " Critics argue that the statute's use of race-conscious remedies and its focus on the racially discriminatory effect of various state laws unduly infringes the states' sovereignty over elections. To avoid potential constitutional problems, these critics contend that the statute should be limited to only those instances in which states act with discriminatory intent. As this Article shows, the search for intent is not only futile in this context but unnecessary. Section 2 is constitutionally sound because Section 2 of the Fourteenth Amendment validates any statutory scheme that prevents abridgment of the right to vote, regardless of the presence or absence of discriminatory intent. This Article concludes that an effects-only interpretation of section 2 of the Voting Rights Act is consistent with the broad authority that Section 2 of the Fourteenth Amendment grants Congress to regulate and protect the right to vote.
The Framers of the United States Constitution wrote the Elections Clause to address concerns that... more The Framers of the United States Constitution wrote the Elections Clause to address concerns that the states would fail to call congressional elections and weaken the already fragile new government. The Clause is a delegation of sovereignty from the states to the federal government because, although states select the “time, place, and manner of elections,” U.S. Const. Art. I, Sec. 4, Cl. 1, Congress retains final policymaking authority over federal elections through its veto power, or ability to “alter or modify” state electoral schemes. In essence, Congress’s veto power over state practices deprives states of the hallmark of sovereignty: final policymaking authority. But the Clause, which forms the basis of our electoral system, has largely been ignored in analyzing the constitutionality of federal legislation that modifies or alters state electoral practices.
In particular, the states’ lack of sovereignty over elections has not informed the Supreme Court’s analysis of section 5 of the Voting Rights Act of 1965. Recent caselaw has criticized section 5 on the grounds that it unduly interferes with state sovereignty by requiring states to preclear any change to their election laws with the federal government before the change can go into effect. To support its argument that the Act intrudes on state sovereignty, the Court has employed a federalism norm, which is a free floating conception of the federal/state balance of power that is not tied to the constitutional text or structure. Using this norm, the Court has deferred to the states over the matter of elections under the guise of restoring the “original” balance of power between the states and the federal government in this area.
This presumption that the states’ authority over elections is sovereign represents a basic misunderstanding about the structure of our government. The constitutional text and structure give Congress sovereign authority over all state election laws that govern federal elections and implicate the constitutional right to vote, while states retain plenary authority over federal elections and have, at best, limited sovereignty over practices that only implicate state elections.
Unlike most of the legal commentary, I do not seek to excuse or legitimize the Voting Rights Act as a justified incursion on state sovereignty. Rather, this article argues that the federalism norm and the overblown concerns about state sovereignty have little place in analyzing the continued constitutionality of the Voting Rights Act. First, the theories of federalism employed by the Court and the commentary do little to explain the allocation of power between the states and the federal government over elections. As the historical record shows, the Founders did not intend that the structure of the Elections Clause be federalist; rather, it is best viewed as having a decentralized organizational structure that prioritizes federal law. Along these lines, the Clause permits states to choose the time, place, and manner of elections in the first instance, in essence allowing them to play a managerial role in overseeing our electoral system. But the text provides for only one sovereign - Congress - who can alter or modify state plans at will. During the ratification debates, the states recognized that the Elections Clause represented an abdication of sovereignty over elections. Thus, “sovereignty” inaccurately describes the states’ role in our system, in which they have autonomy, or plenary and nonfinal authority, over elections.
Second, the Court’s conflation of “sovereignty” and “autonomy” in its federalism doctrine has bled over into its Voting Rights Act jurisprudence, resulting in an ill conceived and misplaced deference to state authorities and a narrow view of their obligations under the Act. The article concludes that when Congress’s power under the Elections Clause is combined with its ability to enforce the mandates of the Fourteenth and Fifteenth Amendments, which prohibit discrimination in all elections, the Voting Rights Act represents an appropriate use of congressional power to alter or modify state electoral practices.
The Framers of the United States Constitution created our system of federalism based on the princ... more The Framers of the United States Constitution created our system of federalism based on the principle that political safeguards would protect the regulatory interests of the states from overreaching by the federal government. While many of these safeguards have since failed, others have emerged to insulate the states from an ever-expanding federal presence. One such safeguard is partisan gerrymandering, which allows states to draw legislative districts that reflect the partisan affiliation of a majority of the electorate, and in turn, send a delegation to Congress that is as ideologically cohesive as practicable. In making this argument, this Article corrects a basic misunderstanding in the political safeguards literature: that the Senate is the only chamber that the Framers constructed to protect state interests. In reality, a politically cohesive House delegation can ensure that the state’s preferred policy preferences shape federal lawmaking.
This Article also illustrates that, in the context of congressional redistricting, the legal scholarship’s sole focus on ascertaining manageable judicial standards ignores the concerns about institutional legitimacy and judicially dictated political outcomes that are exacerbated by the federalism issues in this area. Despite the absence of standards, the broader structural implications of promoting “federalism-reinforcing” gerrymandering require the Supreme Court to craft rules that encourage the use of mid-decade redistricting and at-large voting schemes; that limit the authority of independent commissions to draw redistricting plans; and that promote strong state political parties, all of which will help preserve the states’ ability to utilize the federalism benefits that flow from partisan redistricting.
For over a century, Section 2 of the Fourteenth Amendment has been a dead letter, but recent chal... more For over a century, Section 2 of the Fourteenth Amendment has been a dead letter, but recent challenges to voting rights demand that we resurrect this long forgotten provision. The thesis of this Article is that Section 2, which allows Congress to reduce a state's delegation in the House of Representatives if the state abridges the right to vote, gives Congress the authority to address virtually any abridgment of the ballot through its Section 5 enforcement power. Specifically, this Article contends that Section 2, with its broad language unencumbered by references to race or color, provides constitutional justification for section 2 of the Voting Rights Act, the validity of which has come under fire in recent years. Section 2 of the Voting Rights Act forbids any voting " standard, practice, or procedure " that " results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color. " Critics argue that the statute's use of race-conscious remedies and its focus on the racially discriminatory effect of various state laws unduly infringes the states' sovereignty over elections. To avoid potential constitutional problems, these critics contend that the statute should be limited to only those instances in which states act with discriminatory intent. As this Article shows, the search for intent is not only futile in this context but unnecessary. Section 2 is constitutionally sound because Section 2 of the Fourteenth Amendment validates any statutory scheme that prevents abridgment of the right to vote, regardless of the presence or absence of discriminatory intent. This Article concludes that an effects-only interpretation of section 2 of the Voting Rights Act is consistent with the broad authority that Section 2 of the Fourteenth Amendment grants Congress to regulate and protect the right to vote.
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In particular, the states’ lack of sovereignty over elections has not informed the Supreme Court’s analysis of section 5 of the Voting Rights Act of 1965. Recent caselaw has criticized section 5 on the grounds that it unduly interferes with state sovereignty by requiring states to preclear any change to their election laws with the federal government before the change can go into effect. To support its argument that the Act intrudes on state sovereignty, the Court has employed a federalism norm, which is a free floating conception of the federal/state balance of power that is not tied to the constitutional text or structure. Using this norm, the Court has deferred to the states over the matter of elections under the guise of restoring the “original” balance of power between the states and the federal government in this area.
This presumption that the states’ authority over elections is sovereign represents a basic misunderstanding about the structure of our government. The constitutional text and structure give Congress sovereign authority over all state election laws that govern federal elections and implicate the constitutional right to vote, while states retain plenary authority over federal elections and have, at best, limited sovereignty over practices that only implicate state elections.
Unlike most of the legal commentary, I do not seek to excuse or legitimize the Voting Rights Act as a justified incursion on state sovereignty. Rather, this article argues that the federalism norm and the overblown concerns about state sovereignty have little place in analyzing the continued constitutionality of the Voting Rights Act. First, the theories of federalism employed by the Court and the commentary do little to explain the allocation of power between the states and the federal government over elections. As the historical record shows, the Founders did not intend that the structure of the Elections Clause be federalist; rather, it is best viewed as having a decentralized organizational structure that prioritizes federal law. Along these lines, the Clause permits states to choose the time, place, and manner of elections in the first instance, in essence allowing them to play a managerial role in overseeing our electoral system. But the text provides for only one sovereign - Congress - who can alter or modify state plans at will. During the ratification debates, the states recognized that the Elections Clause represented an abdication of sovereignty over elections. Thus, “sovereignty” inaccurately describes the states’ role in our system, in which they have autonomy, or plenary and nonfinal authority, over elections.
Second, the Court’s conflation of “sovereignty” and “autonomy” in its federalism doctrine has bled over into its Voting Rights Act jurisprudence, resulting in an ill conceived and misplaced deference to state authorities and a narrow view of their obligations under the Act. The article concludes that when Congress’s power under the Elections Clause is combined with its ability to enforce the mandates of the Fourteenth and Fifteenth Amendments, which prohibit discrimination in all elections, the Voting Rights Act represents an appropriate use of congressional power to alter or modify state electoral practices.
This Article also illustrates that, in the context of congressional redistricting, the legal scholarship’s sole focus on ascertaining manageable judicial standards ignores the concerns about institutional legitimacy and judicially dictated political outcomes that are exacerbated by the federalism issues in this area. Despite the absence of standards, the broader structural implications of promoting “federalism-reinforcing” gerrymandering require the Supreme Court to craft rules that encourage the use of mid-decade redistricting and at-large voting schemes; that limit the authority of independent commissions to draw redistricting plans; and that promote strong state political parties, all of which will help preserve the states’ ability to utilize the federalism benefits that flow from partisan redistricting.
Congress to regulate and protect the right to vote.
In particular, the states’ lack of sovereignty over elections has not informed the Supreme Court’s analysis of section 5 of the Voting Rights Act of 1965. Recent caselaw has criticized section 5 on the grounds that it unduly interferes with state sovereignty by requiring states to preclear any change to their election laws with the federal government before the change can go into effect. To support its argument that the Act intrudes on state sovereignty, the Court has employed a federalism norm, which is a free floating conception of the federal/state balance of power that is not tied to the constitutional text or structure. Using this norm, the Court has deferred to the states over the matter of elections under the guise of restoring the “original” balance of power between the states and the federal government in this area.
This presumption that the states’ authority over elections is sovereign represents a basic misunderstanding about the structure of our government. The constitutional text and structure give Congress sovereign authority over all state election laws that govern federal elections and implicate the constitutional right to vote, while states retain plenary authority over federal elections and have, at best, limited sovereignty over practices that only implicate state elections.
Unlike most of the legal commentary, I do not seek to excuse or legitimize the Voting Rights Act as a justified incursion on state sovereignty. Rather, this article argues that the federalism norm and the overblown concerns about state sovereignty have little place in analyzing the continued constitutionality of the Voting Rights Act. First, the theories of federalism employed by the Court and the commentary do little to explain the allocation of power between the states and the federal government over elections. As the historical record shows, the Founders did not intend that the structure of the Elections Clause be federalist; rather, it is best viewed as having a decentralized organizational structure that prioritizes federal law. Along these lines, the Clause permits states to choose the time, place, and manner of elections in the first instance, in essence allowing them to play a managerial role in overseeing our electoral system. But the text provides for only one sovereign - Congress - who can alter or modify state plans at will. During the ratification debates, the states recognized that the Elections Clause represented an abdication of sovereignty over elections. Thus, “sovereignty” inaccurately describes the states’ role in our system, in which they have autonomy, or plenary and nonfinal authority, over elections.
Second, the Court’s conflation of “sovereignty” and “autonomy” in its federalism doctrine has bled over into its Voting Rights Act jurisprudence, resulting in an ill conceived and misplaced deference to state authorities and a narrow view of their obligations under the Act. The article concludes that when Congress’s power under the Elections Clause is combined with its ability to enforce the mandates of the Fourteenth and Fifteenth Amendments, which prohibit discrimination in all elections, the Voting Rights Act represents an appropriate use of congressional power to alter or modify state electoral practices.
This Article also illustrates that, in the context of congressional redistricting, the legal scholarship’s sole focus on ascertaining manageable judicial standards ignores the concerns about institutional legitimacy and judicially dictated political outcomes that are exacerbated by the federalism issues in this area. Despite the absence of standards, the broader structural implications of promoting “federalism-reinforcing” gerrymandering require the Supreme Court to craft rules that encourage the use of mid-decade redistricting and at-large voting schemes; that limit the authority of independent commissions to draw redistricting plans; and that promote strong state political parties, all of which will help preserve the states’ ability to utilize the federalism benefits that flow from partisan redistricting.
Congress to regulate and protect the right to vote.