Election Law "Federalism" and the Limits of the Antidiscrimination Framework

By Tolson, Franita | William and Mary Law Review, April 2018 | Go to article overview

Election Law "Federalism" and the Limits of the Antidiscrimination Framework


Tolson, Franita, William and Mary Law Review


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. …

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