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):

The Board argues that it is not subject to the Court’s jurisdiction in this case and should be awarded summary judgment because the Board cannot be sued as a state agency under the Eleventh Amendment’s sovereign immunity protections. Generally, the Eleventh Amendment grants States and their agencies, such as the Board, sovereign immunity from suit in federal courts. Pennhurst State Sch. & Hosp. v. Halderman (1984) . . . . However, sovereign immunity will not apply where States “unequivocally” consent to suit, see Sossamon v. Texas (2011), and where Congress has unequivocally abrogated individual States’ sovereign immunity by law through a valid exercise of Congressional authority, see Seminole Tribe v. Florida (1996).

States’ sovereign immunity under the Eleventh Amendment also does not apply “where there has been ‘a surrender of this immunity in the plan of the Convention.’” Alden v. Maine (1999). Under the plan of the Convention doctrine, the sovereign immunity afforded to States by
the Eleventh Amendment will cease where a “fundamental postulate[] implicit in the constitutional design” begins. PennEast Pipeline Co. v. New Jersey (2021). “The Eleventh Amendment confirmed, rather than established, sovereign immunity as a constitutional principle; it follows that the scope of the States’ immunity from suit is demarcated not by the text of the Amendment alone but by fundamental postulates implicit in the constitutional design.” Alden. In other words, “the government of the United States is invested with full and complete power to execute and carry out [the Constitution’s] purposes,” and when a state interferes with the exercise of such power, the state may not assert sovereign immunity from suit in federal court. PennEast; Garcia v. San Antonio Metro Transit Auth. (1985) (Recognizing that states retain sovereign immunity “only to the extent that the Constitution has not divested them of their original powers and transferred those powers to the Federal Government.”)

The Board argues that the plan of the Convention doctrine should not apply in this case because this case involves the Elections Clause of Section 4 of Article I of the Constitution. The Board relies on Allen v. Cooper, in which the Supreme Court reaffirmed that Congress could not abrogate a state’s sovereign immunity through Congressional action pursuant to powers vested in Congress under Article I. But the Supreme Court later applied Allen in PennEast, where the Court held that no congressional abrogation is necessary where the States agreed in the plan of the Convention not to assert any sovereign immunity defense. Instead, where the purposes of the Constitution require the powers of the States to yield to those of the Federal Government, the Constitution strips States of sovereign immunity and no Congressional abrogation is required.

Here, the Elections Clause is a “fundamental postulate” bestowing the government of the United States power to carry out the Constitution’s purposes regarding federal elections. . . . The Elections Clause, the Supreme Court has held, “reveal[s] the Framers’ understanding that the powers over the election of federal officers had to be delegated to, rather than reserved by, the States.” U.S. Term Limits, Inc. v. Thornton (1995). Rather than bestowing States the authority to regulate elections to which federal law must bend, the Constitution gave Congress plenary power over regulating federal elections such that the States’ roles in federal elections have “always existed subject to the express qualification that [the States’ roles] ‘terminate[] according to federal law.’” Arizona v. Inter Tribal Council of Arizona, Inc. (2013). The Elections Clause, then, embodies the understanding between the States and the Federal Government at the Founding that the States’ sovereign immunity would bend to the powers of the Federal Government over federal elections. Accordingly, where Congress acts pursuant to its powers under the Elections Clause, the plan of the Convention doctrine applies, and a state will not be able to take refuge in the Eleventh Amendment’s sovereign immunity protections when sued in federal court.

The Seventh Circuit has held that the National Voter Registration Act, the statute at issue here, was enacted pursuant to Congress’s authority under the Elections Clause. Where, as here, the NVRA is allegedly violated by a state, the plan of the Convention doctrine applies. Therefore, the Court finds that the Board, as an agency of the State of Illinois, is not entitled to sovereign immunity under the plan of the Convention doctrine and may be sued.

As a practical matter, it is hard to know exactly what this means. In injunctive relief cases, the party could typically go to the executive official tasked with enforcing the law under Ex parte Young. Damages are not available with sovereign immunity, but it’s rare that damages are sought in these type of election cases. But the relationship between sovereign immunity and federal election law remains an intriguing area of recent judicial discussion.