ELECTION LAW "FEDERALISM" AND THE LIMITS OF THE ANTIDISCRIMINATION FRAMEWORK.

• Author: Tolson, Franita
• Position: Special Issue on Gerrymandering

TABLE OF CONTENTS INTRODUCTION 2214 I. THE SPECTER OF STATE SOVEREIGNTY IN RECENT VOTING RIGHTS CASES 2221 A. Whither Discriminatory Intent? Legal Challenges to Restrictive Voting Laws in the Lower Courts 2222 B. Whither Shaw Claim? The Federalism Implications of the Race or Party Question in the Supreme Court 2229 II. THE ELECTIONS CLAUSE AND THE IMPRUDENT FEDERALISM OF THE ARIZONA CASES 2237 III. RESERVING THE LEGITIMACY OF FEDERAL ELECTIONS THROUGH ELECTIONS CLAUSE VALUES 2247 A. Elections Clause Value: Preserving the Legitimacy of Federal Elections Through Respect for Popular Souereignty 2248 B. Elections Clause Value: Preserving the Legitimacy of Federal Elections Through Predictable and Competent Election Administration 2255 C. Elections Clause Value: Preserving the Legitimacy of Federal Elections Through Congressional Sovereignty 2265 1. Federalism "Lite": State Sovereignty and Congress's Independent Authority to Legislate 2270 2. The Incidents of Congressional Sovereignty: Commandeering State Offices, State Law, and State Officials 2278 CONCLUSION 2283 INTRODUCTION

During the oral argument for Shelby County v. Holder, which involved a constitutional challenge to sections 4(b) and 5 of the Voting Rights Act (VRA) of 1965, (1) Justice Antonin Scalia surprised onlookers by arguing that section 5's unanimous reauthorization by the Senate in 2006 weighed against, rather than in favor of, the constitutionality of these provisions. (2) He contended that section 5 was part of a grand scheme of "racial entitlements" that are very difficult to reverse through the legislative process; (3) thus, the unanimous vote in favor of reauthorizing the Act was indicative, not of public preference, but of the desire of special interest groups to insulate the VRA from ever being legislatively overturned. (4) Other members of the Supreme Court may not have framed the problems surrounding the VRA in those terms, but they agreed with Justice Scalia's basic insight that the statute impermissibly gave minority groups an advantage in the legislative process over the majority at the expense of state sovereignty. (5)

The Court's attempt to strike a balance between these competing, and sometimes conflicting, principles has led to a jurisprudence that is inconsistent, insufficiently protective of minority rights, and overvalues the states' sovereignty over elections. (6) One of the most nefarious examples of this problematic approach is in the area of legislative redistricting. Here, the Justices have breathed new life into racial gerrymandering claims as a means of policing state redistricting plans that infringe on minority rights, (7) while simultaneously permitting partisan justifications in the name of state sovereignty that could otherwise legitimize regressive and problematic plans. (8) But there are also other cases in which the Court shows undue solicitude to the states, such as those involving voter identification laws and other restrictive voting laws that make it significantly more difficult to cast a ballot, (9) illustrating that the storied position of state sovereignty as the focal point of our federalist system holds steady even when unwarranted. (10)

Along the same lines, Shelby County invalidated section 4(b) of the VRA for infringing on the "equal sovereignty" of the states through a formula that used forty-year-old data to single out certain jurisdictions for voting rights violations. (11) Indicative of recent case law limiting the reach of the Fourteenth and Fifteenth Amendments because of federalism concerns, the Court focused its attention on "rediscovering" the arbitrary divide between the states and the federal government over election regulation more generally. (12) In Arizona v. Inter Tribal Council of Arizona (Arizona Inter Tribal), for example, the Court held that Congress's authority under the Elections Clause over the "Times, Places and Manner" (13) of federal elections "is paramount," (14) but does not extend to regulating voter qualification standards, which fall firmly within the province of the states. (15) Similarly, in Arizona State Legislature v. Arizona Independent Redistricting Commission (Arizona IRC), the Court held that Arizona voters, acting through a state ballot initiative, can delegate the legislature's redistricting authority to an independent commission because the Elections Clause's use of the term "legislature" embodied whatever prescriptions for lawmaking that the state established in its constitution. (16) Like Shelby County, the Arizona cases recognize, first, that the federal government's interference with laws that fall firmly within the province of state authority trigger significant constitutional issues; (17) and second, the presumptive constitutionality of state law to which the Court will generally defer, even when interpreting federal constitutional provisions. (18) All of these cases have contributed to the view that election law is federalism based, with clearly delineated spheres of authority for the state and federal governments, respectively.

This Article challenges the prevailing view that federalism best explains our system of elections, and argues that, unlike the antidiscrimination framework of the Fourteenth and Fifteenth Amendments, Congress and the courts can disregard state sovereignty in enacting, enforcing, and resolving the constitutionality of legislation passed pursuant to the Elections Clause. The Clause gives states control over the "Times, Places and Manner" of federal elections, but it also empowers Congress to "make or alter" these regulations at will. (19) Once one examines the text and structure of the Elections Clause, it is clear that this provision does not fit comfortably within any of the prevailing theories of federalism. (20) This insight is particularly powerful in the redistricting context, in which states rely on their authority under the Clause to draw congressional districts and have traditionally enjoyed wide berth in constructing these districts, largely subject only to the constraints of the once powerful, but recently more limited Fourteenth and Fifteenth Amendments. (21)

As this Article shows, Congress's authority under the Elections Clause is significantly broader than the Court has acknowledged, and can be a powerful bulwark against discriminatory state laws that are usually defended on the grounds of state sovereignty against Fourteenth and Fifteenth Amendment challenges. (22) The breadth of congressional power under the Clause lies in Congress's ability to veto state law at will, a feature that is at odds with most of the prevailing views of federalism. (23) Traditional federalism doctrine prioritizes experimentation in governance dispersed among the fifty states--a variation that emerges, in part, from limiting the reach of the federal government. (24)

In contrast, the Elections Clause has its own unique set of values that place a premium on congressional sovereignty. When it comes to federal elections, Congress rarely intervenes to increase cooperation between the states and federal government in order to--for example--encourage a regulatory partnership that allows Congress to influence policy areas beyond the scope of its enumerated powers. (25) Congress's authority over setting the "Times, Places and

Manner" (26) of federal elections "is paramount," (27) and this body has, on occasion, imposed substantive requirements that states must follow when structuring federal elections. (28) Nor is the Clause frequently invoked in order to nationalize election administration or to limit state power to a particular substantive area; (29) Congress assumes that well-functioning states will fill in most of the blanks with respect to the nuts and bolts of federal elections, (30) but has been willing to impose uniformity if the need arises. (31) Indeed, the Clause's overarching purpose is to ensure the continued existence and legitimacy of federal elections, (32) so the text empowers Congress to engage in the quintessentially "anti-"federalism action of displacing state law and commandeering state officials toward achieving this end. (33) Yet the federalism label still persists as its animating theory, even though the Clause is not concerned with protecting the sovereignty of the states. (34)

This Article is divided into three Parts. Part I argues that dis-nfranchisement has become the norm in American elections, not only because of the invalidation of portions of the VRA, but also because of the Court's reluctance to create a robust framework that places positive obligations on states to ensure broad enfranchisement. Part of the difficulty is structural--the text of the United States Constitution does not contain an explicit and affirmative right to vote, and gives the states considerable authority over the electoral process. (35) The other problem lies with the constraints that the Court has imposed on the Fourteenth and Fifteenth Amendments, including, but not limited to, the onerous discriminatory purpose requirement when states enact facially neutral, but restrictive voting legislation; the Court's overly deferential posture toward the state's justification for the disputed law; and the limited remedies that the Court accords to prevailing plaintiffs in voting rights litigation. (36)

Oddly, as the Court has restricted the scope of the Fourteenth and Fifteenth Amendments, recent cases have read the Elections Clause quite expansively. (37) However, as Part II shows, the Court applies the same federalism assumptions to the Clause that animate its jurisprudence under the Reconstruction Amendments and, as a result, has not read the Clause's terms broadly enough. Part II discusses the Court's most recent Elections Clause cases, Arizona Inter Tribal and Arizona IRC, to show how the Court has misconstrued and undertheorized Congress's authority under the Elections Clause while purporting to vindicate federal power. Any...