Franita Tolson has posted this draft on SSRN (forthcoming, William and Mary Law Review). Here is the abstract:
If the United States Supreme Court conceived of the right to vote as an active entitlement that safeguards other fundamental rights rather than as a passive privilege that permits courts to prioritize state sovereignty over broad enfranchisement, then many of the errors that have become commonplace in our system of elections would not occur. It is unlikely, however, that the Court will take the steps necessary to extend the constitutional protections afforded to the right to vote. In recent years, the Court has sharply circumscribed Congress’s ability to protect the right to vote under the Fourteenth and Fifteenth Amendments, rejecting any new conceptual framework that would more properly allocate authority over voting rights between the states and the federal government.
Nonetheless, both scholars and voting rights advocates can take advantage of the existing framework by using the Elections Clause to supplement the Reconstruction Amendments in an effort to protect voting rights and defend the scope of federal anti-discrimination legislation. Under the Clause, states set procedural regulations that govern federal elections, but Congress can also enact its own laws and, more importantly, veto state regulations at will. This provision has been significantly underutilized in the two centuries-long battle over the regulation of federal elections.
Despite this unique structure that places final policymaking authority in the hands of Congress, both the Supreme Court and legal scholars tend to discuss the Clause in federalism terms, characterizing the exercise of federal power as a rare and somewhat unwelcome intrusion on the states’ relatively broad authority to legislate with respect to federal elections. Contrary to this view, this Article argues that Congress and the courts can disregard state sovereignty in enacting, enforcing, and resolving the constitutionality of legislation passed pursuant to the Elections Clause. Close examination reveals that the Clause’s structure does not fit comfortably within any of the prevailing theories of federalism, which deploy notions of state sovereignty in ways that are inconsistent with the Clause’s text, purpose, and history.
Descriptively, federalism doctrine fails to explain the regulatory dynamic between the states and Congress over federal elections because the Clause embodies values other than those that our federalist system safeguards. Traditional federalism doctrine emphasizes objectives such as increased citizen involvement, experimentation, and innovation in state government. In contrast, the touchstone of the Elections Clause is the continued existence and political legitimacy of federal elections: that a winner be chosen from an electoral process—implemented by the states at the sufferance of Congress—that is legitimized by clear rules and a definitive outcome. This focus makes it difficult to embrace the state-centric approach of traditional federalism, or the flexibility and nationalism that is the hallmark of the “new” federalism. This insight has significant implications as we approach the 2020 redistricting cycle, in which states will seek to defend discriminatory redistricting plans, enact more restrictive voting laws, and challenge the constitutionality of federal voting rights legislation on federalism grounds.