Election Law Federalism

Justin Weinstein-Tull*

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 antidiscrimination 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 federal laws this Article examines—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 model of regulation they illustrate, both represent the future of federal election law 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 unusual characteristics, federal election laws of the kind this Article discusses run in perceived tension with traditional federalism doctrines like the anticommandeering principle and state authority to organize its own subdivisions. That tension has created 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.

* Thomas C. Grey Fellow and Lecturer in Law, Stanford Law School. I owe a deep debt of gratitude to the many colleagues, friends, and mentors who supported this piece through substantive and editorial suggestions and conversations about earlier drafts. In particular, I thank Michelle Anderson, Abbye Atkinson, Beth Colgan, David Engstrom, Heather Gerken, Rick Hasen, Cathy Hwang, Thea Johnson, Cort Kenney, Bernie Meyler, Nate Persily, Dara Purvis, Andrea Roth, Josh Sellers, Reva Siegel, Norm Spaulding, Dan Tokaji, and participants in workshops at Stanford Law School, Washington and Lee Law School, and the Grey Fellows Forum. I thank Peter Kurtz for terrific research assistance. I thank the editors of the Michigan Law Review for their superhuman diligence and supremely helpful suggestions. Finally, a note of disclosure: I had the good fortune to litigate a number of election law cases on behalf of the United States between 2009 and 2012. This Article reveals no confidential information; it reflects only my own views.

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