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“Plan B For Voting Rights”: It’s Time For Congress To Use It’s Authority Under The Election Clause

Voting-rights advocates generally don’t look to Justice Antonin Scalia for comfort. During oral arguments earlier this year in Shelby County v. Holder, the case in which the Supreme Court struck down a central part of the Voting Rights Act of 1965, Justice Scalia called the act a “perpetuation of racial entitlement.”

But a growing circle of legal scholars is focusing on a lower-profile ruling — issued one week before the Shelby County decision and written by Justice Scalia — that may point the way to a new approach to protecting voting rights.

The 7-to-2 decision, in Arizona v. Inter Tribal Council of Arizona, struck down an Arizona law requiring anyone who wanted to vote to provide proof of citizenship. It said the state could not impose a rule that was more restrictive than the federal “motor voter” law, which requires only a sworn statement of citizenship by the voter.

Congress passed the motor-voter law under its power to set the “times, places and manner” of federal elections as authorized by Article I, Section 4 of the Constitution, known as the elections clause. The clause is much less well known than, say, the equal protection clause of the 14th Amendment, and yet Congress’s power under it, Justice Scalia wrote, “is paramount, and may be exercised at any time, and to any extent which [Congress] deems expedient.”

“That sort of woke everybody up again,” said Samuel Issacharoff, a professor at New York University School of Law who has studied the elections clause’s possibilities.

The problem, Mr. Issacharoff said, is that voting laws based on intentional racial discrimination, which the Voting Rights Act has been so successful at blocking, are both rarer and harder to identify today. “A lot of the contemporary problems are not well handled through the 50-year-old mechanism of the Voting Rights Act,” he said.

The elections clause, by contrast, does not speak to racial discrimination at all, but addresses the administration of voting rules. Still, in light of the Supreme Court’s ruling in Shelby County, it could have an important role to play. Strong federal laws enacted under the clause could help ensure voting fairness to all voters, especially when a state law appears neutral but has serious partisan or racially discriminatory effects. For instance, a state’s voter ID law might put up hurdles for poor or young voters, who may be disproportionately minority and Democratic, or for elderly voters, who lean Republican.

The elections clause allows Congress to set rules only for federal elections, but those laws almost always guide state election practices, too. For instance, Congressional legislation could pre-empt voter ID laws like Arizona’s or changes to early-voting laws like those attempted in Florida last year.

The bottom line, said Daniel Tokaji, an election law professor at the Moritz College of Law at Ohio State, is that Congress has much more power to legislate under the clause than it has exercised. It could, for example, liberalize voter registration nationwide, which has been shown to lead to higher turnout.

“I think Congress would be foolish not to look at the elections clause,” Mr. Tokaji said. “If they could do it over again, they might have paid more attention to it back in 2006,” when the Voting Rights Act was reauthorized using data that the Supreme Court in the Shelby County case found to be outdated. (Mr. Tokaji argued in an amicus brief that the justices should rely on the elections clause to uphold the Voting Rights Act, but the court did not address the issue in its ruling.)

Given the apparent direction of the court, even the remaining parts of the Voting Rights Act could be vulnerable to constitutional challenges. That makes it all the more timely for Congress to turn to its expansive authority under the elections clause to protect the right to vote.


By: Jesse Wegman, The New York Times, August 31, 2013

September 1, 2013 - Posted by | Congress, Voting Rights | , , , , , , ,

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