Reinventing Sovereignty?: Federalism as a Constraint on the Voting Rights Act

Franita Tolson, Reinventing Sovereignty?: Federalism as a Constraint on the Voting Rights Act, 65 Vand. L. Rev. 1195 (2012).

Abstract:  The Framers of the United States Constitution wrote the Elections Clause to address concerns that the states would fail to call congressional elections and weaken the already fragile new government. The Clause is a delegation of sovereignty from the states to the federal government because, although states select the “time, place, and manner of elections,” U.S. Const. Art. I, Sec. 4, Cl. 1, Congress retains final policymaking authority over federal elections through its veto power, or ability to “alter or modify” state electoral schemes. In essence, Congress’s veto power over state practices deprives states of the hallmark of sovereignty: final policymaking authority. But the Clause, which forms the basis of our electoral system, has largely been ignored in analyzing the constitutionality of federal legislation that modifies or alters state electoral practices.

In particular, the states’ lack of sovereignty over elections has not informed the Supreme Court’s analysis of section 5 of the Voting Rights Act of 1965. Recent caselaw has criticized section 5 on the grounds that it unduly interferes with state sovereignty by requiring states to preclear any change to their election laws with the federal government before the change can go into effect. To support its argument that the Act intrudes on state sovereignty, the Court has employed a federalism norm, which is a free floating conception of the federal/state balance of power that is not tied to the constitutional text or structure. Using this norm, the Court has deferred to the states over the matter of elections under the guise of restoring the “original” balance of power between the states and the federal government in this area.

This presumption that the states’ authority over elections is sovereign represents a basic misunderstanding about the structure of our government. The constitutional text and structure give Congress sovereign authority over all state election laws that govern federal elections and implicate the constitutional right to vote, while states retain plenary authority over federal elections and have, at best, limited sovereignty over practices that only implicate state elections.

Unlike most of the legal commentary, I do not seek to excuse or legitimize the Voting Rights Act as a justified incursion on state sovereignty. Rather, this article argues that the federalism norm and the overblown concerns about state sovereignty have little place in analyzing the continued constitutionality of the Voting Rights Act. First, the theories of federalism employed by the Court and the commentary do little to explain the allocation of power between the states and the federal government over elections. As the historical record shows, the Founders did not intend that the structure of the Elections Clause be federalist; rather, it is best viewed as having a decentralized organizational structure that prioritizes federal law. Along these lines, the Clause permits states to choose the time, place, and manner of elections in the first instance, in essence allowing them to play a managerial role in overseeing our electoral system. But the text provides for only one sovereign – Congress – who can alter or modify state plans at will. During the ratification debates, the states recognized that the Elections Clause represented an abdication of sovereignty over elections. Thus, “sovereignty” inaccurately describes the states’ role in our system, in which they have autonomy, or plenary and nonfinal authority, over elections.

Second, the Court’s conflation of “sovereignty” and “autonomy” in its federalism doctrine has bled over into its Voting Rights Act jurisprudence, resulting in an ill conceived and misplaced deference to state authorities and a narrow view of their obligations under the Act. The article concludes that when Congress’s power under the Elections Clause is combined with its ability to enforce the mandates of the Fourteenth and Fifteenth Amendments, which prohibit discrimination in all elections, the Voting Rights Act represents an appropriate use of congressional power to alter or modify state electoral practices.

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