“Election Law Federalism”

Justin Weinstein-Tull has posted this draft on SSRN (forthcoming, Michigan Law Review). Here is the abstract:

This Article provides the first comprehensive account of non-Voting Rights Act federal voting laws. Section 5 of the Voting Rights Act — long the most effective voting rights law in American history — was disabled by the Supreme Court in Shelby County v. Holder. Section 2 of the Voting Rights Act is in the crosshairs. As the Supreme Court becomes more hostile to race-based anti-discrimination laws like the Voting Rights Act, Congress will turn to race-neutral, election administration-based reforms to strengthen the right to vote. Indeed, many proposals for reform post-Shelby County have taken this form. The laws examined in this Article — the National Voter Registration Act of 1993 (NVRA), the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), and the Help America Vote Act (HAVA) — regulate major aspects of the elections process: voter registration, absentee ballots, voting machine technology, and accessibility for disabled persons. These statutes, and the kind of election regulation they illustrate, both represent the future of federal election law (for better or worse) and present previously unstudied challenges with implications for election law broadly.

Federal legislation that seeks to regulate and standardize elections implicates complicated relationships among federal, state, and local governments. This domain of “election law federalism” has two distinct features: 1) unusually expansive federal power to legislate pursuant to the Elections Clause; and 2) widespread state prerogative to delegate election responsibilities to local government. Because of these unique characteristics, federal election laws of the kind discussed in this Article run in perceived tension with traditional federalism doctrines like the anti-commandeering principle and state authority to organize its own subdivisions. That tension has led to enforcement difficulties and widespread noncompliance with the statutes. This Article proposes reforms that would allow federal election legislation to accommodate the realities of the elections system and more effectively optimize the roles of federal, state, and local governments within the elections system.

I read an earlier draft of this article and recommend it.



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