To continue my sovereign immunity discussion from yesterday, a federal court last year found that Congress did not abrogate state sovereign immunity under the Voting Rights Act. Congress must do so with “unmistakable clarity” when enforcing the Reconstruction Amendments, per Supreme Court precedent. You can sue the secretary of state; you cannot sue the state.
But a couple of federal district courts have been looking at the same issue from a different angle, under the National Voter Registration Act of 1993. They look at a different clause of the Constitution, the Elections Clause. Over the last couple of decades, the Supreme Court has increasingly found exceptions to what was once thought to be a stronger presumption that Congress lacked the power to abrogate state sovereign immunity under its Article I authority. But since then, it has decided cases involving bankruptcy, war powers, and eminent domain where states, under the “plan of the [constitutional] convention,” surrenders some of their sovereign immunity. And so, the Elections Clause has been a topic of some discussion in the lower courts.
In Illinois Conservative Union v. Illinois, a federal court issued this brief docket order in 2021: “Under the plan of the Convention doctrine, the Court finds that Plaintiffs may proceed against the State and the Board and denies the State and the Board’s motion to dismiss the NVRA claim 5 based on sovereign immunity.”
A more fulsome evaluation took place in a different federal court in Illinois in Public Interest Legal Foundation v. Sandvoss in 2022 (lightly edited):
Continue reading Two federal courts have recently found that states have no sovereign immunity under the Elections Clause