Election law federalism.

• Author: Weinstein-Tull, Justin
• Position: Introduction through I. The Pathology of Multiple Sovereigns in Election Law, p. 747-775

This Article provides the first comprehensive account of non-Voting Rights Act federal voting laws. Section 5 of the Voting Rights Act--long the most effective voting rights law in American history--was disabled by the Supreme Court in Shelby County v. Holder. Section 2 of the Voting Rights Act is in the crosshairs. As the Supreme Court becomes more hostile to race-based antidiscrimination laws like the Voting Rights Act, Congress will turn to race-neutral, election administration-based reforms to strengthen the right to vote. Indeed, many proposals for reform post-Shelby County have taken this form. The federal laws this Article examines--the National Voter Registration Act of 1993 (NVRA), the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), and the Help America Vote Act (HAVA)--regulate major aspects of the elections process: voter registration, absentee ballots, voting machine technology, and accessibility for disabled persons. These statutes, and the model of regulation they illustrate, both represent the future of federal election law and present previously unstudied challenges with implications for election law broadly.

Federal legislation that seeks to regulate and standardize elections implicates complicated relationships among federal, state, and local governments. This domain of "election law federalism" has two distinct features: (1) unusually expansive federal power to legislate pursuant to the Elections Clause; and (2) widespread state prerogative to delegate election responsibilities to local government. Because of these unusual characteristics, federal election laws of the kind this Article discusses run in perceived tension with traditional federalism doctrines like the anticommandeering principle and state authority to organize its own subdivisions. That tension has created enforcement difficulties and widespread noncompliance with the statutes. This Article proposes reforms that would allow federal election legislation to accommodate the realities of the elections system and more effectively optimize the roles of federal, state, and local governments within the elections system.

Table of Contents Introduction I. The Pathology of Multiple Sovereigns in Election Law A. The Statutes 1. The National Voter Registration Act of 1993 2. The Uniformed and Overseas Citizens Absentee Voting Act 3. The Help America Vote Act of 2002 4. Widespread Noncompliance 5. The Rise of Administration-Based Election Laws B. Federal-State Conflict C. State-Local Conflict II. Election Law Federalism and Sovereignty A. Defining Election Law Federalism 1. Expansive Federal Power to Legislate 2. Widespread State Prerogative to Delegate B. Tension with Federalism Doctrines 1. Anticommandeering 2. State Control over Subdivisions C. Differences with Other Public Policies D. The Character of Election Law Federalism III. Legislating an Election System with Multiple Sovereigns A. Balancing Federal, State, and Local Involvement 1. Promoting Federal Oversight 2. Promoting State Management 3. Promoting Local Tailoring B. Election Law Federalism Today and Tomorrow Conclusion Introduction

The Supreme Court recently hobbled section 5 of the Voting Rights Act in Shelby County v. Holder. (1) Section 2--the Voting Rights Act's other major antidiscrimination provision--is in the crosshairs. (2) This Article presents the first comprehensive examination of the important federal voting laws still on the books after Shelby County. (3) Perhaps because these laws have traditionally operated in the shadow of the Voting Rights Act, little scholarly literature evaluates how they operate within the diverse set of legal relationships implicated by election law. (4) These statutes present challenges with implications for election law broadly.

Specifically, this Article investigates the National Voter Registration Act of 1993 (NVRA), (5) the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA,6) and the Help America Vote Act (HAVA) (7) (collectively, the "federal election statutes"). The NVRA requires states to offer voter registration opportunities at certain state offices. (8) UOCAVA requires states to transmit ballots to military and overseas voters in time for those voters to cast their ballots. (9) HAVA requires states to adopt voting machine technology and ensure accessibility. (10) Each statute holds states responsible for ensuring that their elections meet conditions the federal government believes to be necessary for a fair electoral process.

These three statutes differ in character from the Voting Rights Act in two important ways. First, they take a race-neutral approach. Whereas the Voting Rights Act prohibits vote discrimination on the basis of race or color, (11) the federal election statutes create universal civil rights in the context of election administration. That is, they create a series of election-related responsibilities for states that are designed to facilitate a fair elections process. Those obligations attach regardless of the race or color of the voter. Despite their race-neutral approach, however, the statutes can affect the role of race and class in elections. Voter registration rates, for example, vary widely by race and income; (12) the NVRA can play a role in remedying those inequalities by easing access to voter registration. Since Shelby County, a number of commentators have suggested that as the Supreme Court becomes more and more hostile to antidiscrimination legislation and affirmative action programs, (13) the federal election statutes may provide a model for fortifying the right to vote in a manner palatable to the Court. (14)

Second, the enforcement mechanisms of the federal election statutes differ from that of the Voting Rights Act, which imposes liability directly on jurisdictions for their own discriminatory actions. (15) By contrast, the federal election statutes hold states liable for noncompliance even though local governments, and not states themselves, assume most election administration responsibilities. This enforcement mechanism is reasonable: it would be nearly impossible for the federal government to enforce these statutes against the thousands of counties and municipalities that actually administer elections. (16) But it also creates a liability mismatch that is reflected in both state briefing and court decisions pursuant to these statutes. States regularly argue that (1) counties, not states, are the proper defendants in these suits; and (2) states discharge whatever statutory responsibilities they retain through some oversight of local government. (17) Courts have largely rejected the idea that states may evade liability by delegating responsibility to counties, (18) but questions exist as to whether and how the federal government may force states to enforce the statutes against their own local governments, especially when no cause of action exists under state law. (19) To this day, states continue to argue that their decentralized systems of election administration exempt them from complying with the statutes and instead shift that burden to local governments. (20) This belief may help explain the widespread noncompliance with these statutes. (21) At the very least, the mismatch creates a roadblock to effective enforcement of the statutes.

This Article argues that these state arguments, doctrinal murkiness, and widespread noncompliance persist because the relationships implicated by the election administration statutes are not well-understood and exist in perceived tension with other well-developed legal doctrines. For example, the statutes affect state sovereignty in ways that have not been explained by courts, litigants, or Congress. The statutes require states to organize their subdivisions to either effectively oversee certain kinds of election administration or administer elections themselves. (22) The statutes require this potential rearrangement even though organizing and delegating power to political subdivisions has long been understood as the very essence of state sovereignty. (23) Furthermore, the statutes require state actors to regulate local governments and elections in ways that state law might not ordinarily permit. (24) That mandate runs up uncomfortably against anticommandeering principles, (25) even if it does not violate them, and engages a doctrinal area that remains underdeveloped. (26)

Elections are themselves "hyperfederalized"; that is, many key election decisions are made at the local level. (27) The Constitution initiates decentralization by placing the primary responsibility for holding elections with states. (28) States have further decentralized election administration by delegating most election administration responsibilities to local governments. (29) Moreover, each state's election laws are different; states apportion election administration responsibility between state officials and local governments in different ways. (30) Elections are therefore hyperfederalized not only because states push election decisions down to the local level, but because the quality of decentralization, including legal relationships between counties and states, varies by state. As a result, the federal election statutes implicate an unusual number of federalism relationships through all three levels of government. (31)

I call the federal-state-local relationships implicated by the statutes "election law federalism." (32) Election law federalism is defined by two distinct features--expansive federal power to regulate and widespread state prerogative to delegate--that both partly explain the widespread noncompliance with the federal election statutes and raise unusual federalism and policy questions for election law. (33) This Article argues that the right question to ask when seeking to enact and enforce federal laws within the context of election law federalism is how to achieve the best blend of federal, state, and local involvement. It...