The Independent View: Congress: Don’t forget the Elections Clause

My take on the Supreme Court’s Section 4 decision of the constitutionality of the Voting Rights Act (VRA) Preclearance formula was just a suspension of the section until a new formula is created by congress.

My formula would be, every census year, put all states on preclearance and give the states three months to file their bail-out paperwork showing their prior ten years of voting statistics and voter laws enacted. They could use January 2014 as an initial fix.

There is, however, another provision of the Constitution that authorizes many, though not all, applications of the VRA’s preclearance requirements.

Under the Elections Clause of the Constitution, Congress has broad authority to regulate congressional elections. Given that Shelby County has brought a facial challenge to Sections 4(b) and 5 of the VRA, the existence of an alternative basis for upholding some applications of the statute shouldn’t be overlooked. The Elections Clause is sufficient to prevent facial invalidation of the statute, regardless of how the Fourteenth and Fifteenth Amendment issues are resolved.

Some background on the Elections Clause may be helpful in understanding its relevance to the constitutional issue in Shelby County. The text of Article I, Section 4, Clause 1 of the Constitution provides:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators. This clause generally commits to the States the authority to determine the "times, places and manner of holding elections," which includes the preliminary stages of the election process (such as a primary election), while reserving to Congress the authority to preempt State regulations with uniform national rules.

Congress has exercised this authority to determine a uniform date for federal elections: the Tuesday following the first Monday in November.

Because Congress has not enacted any on-point regulations, States still retain the authority to regulate the dates on which other aspects of the election process are held (registration, primary elections, etc.) and where elections will be held. As for regulating the "manner" of elections, the Supreme Court has interpreted this to mean "matters like notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns. The Supreme Court has held that States may not exercise their power to determine the "manner" of holding elections.

One of the most significant ways that States regulate the "manner" of elections is their power to draw election districts. Although in theory Congress could draw the district map for each State, it has not exercised this level of oversight. Congress has, however, required the States to conform to certain practices when drawing districts. States are currently required to use a single-member district scheme, whereby the State is divided into as many election districts for Representatives in the House of Representatives as the size of its representation in that body, that is to say, Representatives cannot be elected at-large from the whole State unless the State has only one Representative in the House, nor can districts elect more than 1 Representative.

Congress once imposed additional requirements that districts be composed of contiguous territory, be "compact," and have equal populations within each State. Congress has allowed those requirements to lapse, but the Supreme Court has re-imposed the population requirement on the States under the Equal Protection Clause and is suspicious of districts that do not meet the other "traditional" districting criteria of compactness and contiguity.

The Supreme Court has consistently interpreted the Elections Clause to give Congress comprehensive authority in this area.

In Smiley v. Holm (1932), the Court wrote of the Elections Clause:

-- to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved and these requirements would be nugatory if they did not have appropriate sanctions in the definition of offenses and punishments.

The Elections Clause thus gives Congress the power to make both sweeping and limited regulations governing federal elections. For example, the Court has held that the Elections Clause authorizes federal laws prohibiting voter intimidation (1884) and preempting state primary rules (1997). As Justice Scalia noted in his plurality opinion in Vieth v. Jubelirer (2004), the Elections Clause also empowers Congress to make rules regarding congressional districting. Federal appellate courts have upheld the National Voter Registration Act of 1993 (NVRA) as a permissible exercise of Congress’s authority under the Elections Clause.

Congress was cognizant of its authority under the Elections Clause when it first enacted the VRA in 1965 and when it reauthorized the statute in 2006. Justice Black’s lead opinion in Oregon v. Mitchell (1970), upholding certain provisions of the 1970 amendments to the VRA, relied on the Elections Clause.

Shelby County’s challenge focuses on the coverage formula in Section 4(b), which requires certain state and local jurisdictions to obtain preclearance under Section 5 based on registration and turnout data going back as far as 1964. The county argues that this formula accords “unequal treatment” to covered jurisdictions.

The problem with this argument is that the Supreme Court has never suggested that Congress’s Elections Clause power is subject to any such uniformity requirement. To the contrary, courts have upheld federal statutes which bind some state and local jurisdictions but not others, based on criteria set forth in the statute. One provision of federal law authorized the appointment of election supervisors by federal circuit courts in “any city or town having upwards of twenty thousand inhabitants.” And the NVRA was upheld by federal appellate courts, even though it exempts some states (specifically, those which had Election Day registration in 1994) from its requirements. In other words, the Elections Clause allows some jurisdictions to be treated differently from others based on statutorily defined criteria.

It’s interesting that the United States hasn’t relied on the Elections Clause in its defense of Sections 4(b) and 5. I don’t know why.

It’s true that a ruling based only on the Elections Clause would leave open the possibility of VRA preclearance being challenged piecemeal in the future. For example, a covered jurisdiction might challenge the statute’s application to state or local redistricting plans. At that point, the Fourteenth and Fifteenth Amendment questions would have to be addressed.

It’s possible that the Court would ultimately conclude that some applications of the statute exceed Congress’s authority as to some state or local jurisdictions. But again, the Court shouldn’t declare VRA preclearance facially unconstitutional; if it concludes that the Elections Clause authorizes some applications of the statute. For supporters of preclearance, that would be a much better outcome than having Sections 4(b) and 5 struck down on their face.

I am waiting for the Justice Department to continue its filing, like it did in Texas, to North Carolina and new states as they pass restrictive voter laws, of the bail-in provision in Section 3(c):

1. The DOJ can seek continued federal court monitoring of an offending jurisdiction,
2. A freeze on the jurisdiction's election laws,
3. A requirement that the jurisdiction get permission, or preclearance, from the court or the DOJ before it makes any changes to its election laws.

How would you use the Election Clause?