Election law federalism.

• Author: Weinstein-Tull, Justin
• Position: II. Election Law Federalism and Sovereignty through Conclusion, with footnotes, p. 775-801

2. Election Law Federalism and Sovereignty

   As demonstrated above, the federal election statutes implicate a wide range of federalism issues. They do so because of the unusual features inherent in the federal regulation of elections. This Part defines those features and situates them within the broader universe of federal policy.

   1. Defining Election Law Federalism

      The idea of federalism refers to our system of parallel federal and state governance. "The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other." (202) Federalism can mean many things; it "has always been understood to be a multi-headed beast, with courts and scholars routinely deploying multiple and conflicting accounts of what states do." (203)

      Here, "election law federalism" describes the complex set of relationships implicated by federal election legislation. I argue that 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. The remainder of this Section develops and describes these two features.

      Identifying the distinct structure of election law federalism raises both descriptive and normative concerns. As a descriptive matter, I seek to set forth a full account of the relationships at play in enforcing and complying with federal election legislation. As a normative matter, I propose a framework for thinking about how best to understand federal-state-local relationships in administering elections. Better understanding these relationships can provide insights into both ensuring compliance with these statutes and optimally structuring Elections Clause legislation in the future.

      1. Expansive Federal Power to Legislate

         Congress has broad constitutional authority pursuant to the Elections Clause to enact voting legislation. The Elections Clause states that "[t]he 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 Place of chusing Senators." (204) The history of the Elections Clause as well as contemporary doctrine demonstrate that the Clause gives Congress unusually far-reaching authority to enact election law.

         At the founding, the Elections Clause ensured that the federal government could conduct federal elections even if a state refused to do so. In The Federalist, Hamilton wrote that "every government ought to contain in itself the means of its own preservation." (205) The Elections Clause was that means. Giving the power to administer federal elections wholly to the states "would leave the existence of the Union entirely at their mercy. They could at any moment annihilate it, by neglecting to provide for the choice of persons to administer its affairs." (206)

         Specifically, the Clause was forged from the discussion over whether Congress should have veto power over all state laws. Commentators have characterized Congress's Elections Clause authority as a "compromise power." (207) That is, a compromise between a general veto and an extremely narrow veto to be exercised only if states "failed to call for congressional elections or passed electoral laws that otherwise subverted rights protected by the Constitution." (208) Instead, the framers decided on a veto over only state laws concerning the important functions of representation and voting. (209) The founders thus understood that the Elections Clause could function as a congressional veto over state election laws, to be used at Congress's discretion.

         The Supreme Court's recent case law has reaffirmed Congress's comprehensive authority under the Elections Clause. (210) In Arizona v. Inter Tribal Council of Arizona, Inc., (211) the Court considered whether the NVRA's requirement that states "accept and use" a uniform federal voter registration form that does not require proof of citizenship preempted an Arizona law requiring evidence of citizenship to register to vote. (212)

         The Court held that the "broad" substantive scope of the Elections Clause did preempt the state law. (213) The "Times, Places and Manner" of the Elections Clause are " 'comprehensive words,' which 'embrace authority to provide a complete code for congressional elections,' including ... regulations relating to 'registration.'" (214) The Elections Clause "invests the States with responsibility for the mechanics of congressional elections, but only so far as Congress declines to pre-empt state legislative choices." (215) Congress's power over the "Times, Places and Manner" of congressional elections "is paramount, and may be exercised at any time, and to any extent which it deems expedient; and so far as it is exercised, and no farther, the regulations effected supersede those of the State which are inconsistent therewith." (216)

         Most importantly for our purposes, the Court considered and rejected the idea that Elections Clause legislation must satisfy the "plain statement" rule of Gregory v. Ashcroft. (217) That rule states that when Congress alters the traditional balance between state and federal governments by legislating in areas typically regulated by states, it must make its intentions clear by plain statement. (218) In Arizona, the Court held that the assumption motivating Gregory--that Congress is naturally reluctant to preempt state laws--does not hold when Congress exercises its Elections Clause authority. (219) Any federal election legislation that alters the "[t]imes, [p]laces and [m]anner" of holding congressional elections "necessarily displaces some element of a preexisting legal regime erected by the States." (220) That is, because the Elections Clause confers the "power to pre-empt, the reasonable assumption is that the statutory text accurately communicates the scope of Congress's pre-emptive intent." (221) Moreover, "the States' role in regulating congressional elections--while weighty and worthy of respect--has always existed subject to the express qualification that it 'terminates according to federal law.'" (222)

         Lower courts have applied this broad understanding of Congress's authority under the Elections Clause. In United States v. Slone, for example, the Sixth Circuit considered a constitutional challenge to a federal statute criminalizing vote-buying on the ground that Congress had no authority to regulate nonfederal elections. (223) Relying on the broad powers conferred by the Elections Clause, the court upheld the statute. (224) In other cases challenging the constitutionality of the NVRA, some of which are described above, lower courts have held that Congress's Elections Clause authority exceeds its Commerce Clause authority. (225) In one Seventh Circuit case, for example, the court rejected an argument that Congress could not force Illinois to administer the NVRA. (226) In Judge Posner's words, in the context of election legislation, "Congress was given the whip hand." (227)

      2. Widespread State Prerogative to Delegate

         States have delegated significant election responsibilities to local governments, such as counties and townships. (228) This delegation creates elections that Alec Ewald calls "hyperfederalized" (229) : many key election decisions get made at the local level. The degree and kind of decentralization varies by state, but nearly all aspects of election administration are delegated to local governments by at least some set of states. (230)

         Most relevant for this Article, states delegate significant absentee ballot and voter registration responsibilities to local governments. Alabama, for example, designates county circuit clerks to be "absentee election manager[s]" who administer the absentee ballot process. (231) The absentee election manager accepts absentee ballot applications and transmits those ballots. (232) The Alabama secretary of state plays a role, however, by supplying the absentee ballot application form, including a special form for military and overseas voters. (233) Split arrangements like this one--where the state provides some resources and the local governments administer the actual absentee ballot transmission and counting process--are common. (234)

         Local governments also play a prominent role in the voter registration process. In North Carolina, for example, county boards of election administer the registration process. (235) North Carolina itself maintains a centralized registration list, but county boards provide list maintenance. (236) As it is with absentee voting, this sort of state-local division of responsibility for voter registration is common among states. (237)

         States delegate many other responsibilities as well. Local governments play a significant role in funding elections, training poll workers, and selecting voting systems. (238) As of 2002, many states provided no funding at all to local governments to administer elections. (239) Twenty-two states reimbursed local governments for parts of the election administration process. (240) Only nine states paid the majority of election costs. (241) With respect to poll worker training, many states provide training, but fewer than half provide mandatory training. (242) Only seven states have a poll worker certification process that requires local poll workers to be trained according to state requirements. (243) The remaining states either provide optional training to local poll workers or no training at all. (244)

         States oversee their local governments to varying degrees. (245) Some states appoint precinct officials themselves and either maintain control over voting rolls or closely monitor local management. (246) Other states issue enforceable...