Academic journal article Harvard Law Review

It's about Time (Place and Manner): Why and How Congress Must Act to Protect Access to Early Voting

Academic journal article Harvard Law Review

It's about Time (Place and Manner): Why and How Congress Must Act to Protect Access to Early Voting

Article excerpt

INTRODUCTION

In Shelby County v. Holder, (1) the Supreme Court ruled that states and counties that had previously been required to receive federal approval for changes to voting laws under section 5 of the Voting Rights Act of 1965 (2) (VRA) could now alter their voting laws without federal supervision. (3) In the run-up to the 2014 midterm elections, this ability to alter voting laws without federal supervision allowed states that previously had to receive preclearance for their changes to enact a number of new, restrictive voting laws. (4)

While many observers focused on these new laws due to their ties to Shelby County, the decisions by these states to alter their voting laws were merely part of a larger national trend. (5) Since 2010, new restrictions on voting have been passed in at least twenty-two states. (6) These laws have: introduced restrictive voter identification requirements; (7) shortened or eliminated early voting periods; (8) ended or shortened weekend voting; (9) and placed new restrictions on voter registration. (10) Whatever the motivations behind them, these new requirements have had a distinctly partisan (11)--and, in many cases, racial (12)--impact.

Much of the recent literature on this topic has considered state voter identification laws. Comparatively few pieces, however, appear to have analyzed the issue of state restrictions on early voting in federal elections and federal authority to legislate in this realm. This Note seeks to fill that void by highlighting how Congress's expansive power under the Elections Clause (13) should be used to implement regulations that compel states to broadly offer early voting in federal elections. This Note also proposes the contours of such a regulatory apparatus. If legislation of this nature were to be made mandatory for all states--rather than limited to certain states like the preclearance regime struck down in Shelby County--it would be constitutionally permissible. Indeed, the Court's decision in Arizona v. Inter Tribal Council of Arizona, Inc. (14)--announced in the same Term as Shelby County--reaffirmed Congress's preeminence when regulating in this realm.

Part I of this Note details the need for federal early voting legislation, reviewing the restrictions on early voting nationwide and why those restrictions are harmful. Part II considers congressional authority to pass early voting laws, focusing both on the Supreme Court's recognition in Inter Tribal Council of Congress's authority to legislate in this realm and on what constraints the Court's decision in Shelby County might place on any potential federal legislation. Part III proposes a legislative solution and suggests why the Civil Rights Division of the Department of Justice (DOJ) is the ideal body to supervise such a regulatory apparatus. Part IV responds to possible criticisms of the proposed model and concludes by emphasizing that there is an urgent need to introduce such legislation to begin a national conversation about early voting.

I. WHY DO WE NEED FEDERAL EARLY VOTING LEGISLATION?

Before considering any potential legislation to reform early voting laws, two questions must be answered: (1) why is early voting important?; and (2) why must Congress pass federal legislation to promote early voting? This Part shows that, despite the demonstrable benefits of early voting, many states either have no early voting at all, or have recently moved to curtail early voting. While litigation has been successful in preserving voting access in certain circumstances, litigation alone is insufficient to address many of the problems that currently plague access to voting. This Part concludes by explaining why the legislation proposed herein focuses on promoting early voting as opposed to lifting other voting access restrictions.

A. Restrictions on Early Voting Have Negative Effects that Demand Action

Numerous states have either minimal or no early voting; fourteen do not permit early voting in any form. …

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