The Spectrum of Congressional Authority Over Elections

Here is the abstract for Franita Tolson, The Spectrum of Congressional Authority Over Elections, 99 Boston University Law Review 317 (2019):

Congress routinely fails to articulate the source of authority pursuant to which it enacts federal statutes. This oversight forces the Supreme Court to sustain the constitutionality of these regulations based on powers that find no mention in the legislative record. The shortcomings of the record have not prevented the Court from interpreting congressional power quite broadly when a federal statute can be sustained as a lawful exercise of authority pursuant to more than one substantive constitutional provision. In the context of elections, however, the Court has been decidedly more opportunistic about whether it will examine the constitutionality of federal law within the broader spectrum of congressional authority.

In Shelby County v. Holder, for example, the Court held that section 4(b) of the Voting Rights Act of 1965 violated the equal sovereignty principle by forcing certain states to seek federal approval before implementing laws that they are otherwise constitutionally authorized to enact. Sections 4(b) and 5 suspended all changes to state election laws in covered jurisdictions, including nondiscriminatory voter qualification standards and procedural regulations that govern state elections. In prioritizing federalism over all other equally valid considerations, the Court ignored whether the Voting Rights Act was valid because congressional power could be derived, in part, from the Elections Clause. The Elections Clause gives Congress final policymaking authority over setting the times, places, and manner of federal elections. Unlike the Fourteenth and Fifteenth Amendments, a context in which the Court imposes some federalism limitations on the exercise of federal power, the Clause allows Congress to legislate without regard for state sovereignty.

The unique nature of the Elections Clause highlights the importance of applying a theoretical framework to Congress’s authority over elections that properly accounts for the presence of multiple, and sometimes conflicting, sources of federal power. Not only does the Clause allow the federal government to disregard state sovereignty, but the line between voter qualification standards, on one hand, and time, place, and manner regulations, on the other, is significantly more blurred than the caselaw indicates, resulting in the existence of hybrid regulations of uncertain constitutional mooring. This Article concludes that Congress’s sovereign authority under the Elections Clause is broad enough to reach restrictive and oppressive voter qualification standards that affect federal elections, a category that the Court has held falls squarely within the province of state authority. The uncertainty surrounding the boundaries of these regulations, as well as the presence of multiple sources of constitutional authority, means that, in some limited instances, Congress can aggressively police state action under the Elections Clause to protect the fundamental right to vote.

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