"Texas v. Pennsylvania Would Have Upended the Electoral College"

Over at Law and Liberty, I have this post, “Texas v. Pennsylvania Would Have Upended the Electoral College.” It begins:

The Electoral College is a designedly decentralized process for the selection of the President of the United States. Each State may choose its presidential electors in the manner that the legislature deems appropriate.

The State of Texas, in Texas v. Pennsylvania, sought to upend this system in advance of one end: get the Supreme Court to do something, anything, to prevent President-Elect Joe Biden from taking office.

Justice Kavanaugh mentions allocation of power over elections in Calvary Chapel dissent

I’m a little late to this (as I’ve been in the midst of a cross-country move!), but I wanted to highlight a passage from Justice Brett Kavanaugh’s dissenting opinion in Calvary Chapel v. Sisolak. The case was about whether regulations opening some businesses but not allowing churches to open were permissible, which I won’t rehash here. But I did want to highlight one portion of his dissenting opinion:

I agree that courts should be very deferential to the States’ line-drawing in opening businesses and allowing certain activities during the pandemic. For example, courts should be extremely deferential to the States when considering a substantive due process claim by a secular business that it is being treated worse than another business. Cf. Jacobson v. Massachusetts, 197 U. S. 11, 25–28 (1905). Under the Constitution, state and local governments, not the federal courts, have the primary responsibility for addressing COVID–19 matters such as quarantine requirements, testing plans, mask mandates, phased reopenings, school closures, sports rules, adjustment of voting and election procedures, state court and correctional institution practices, and the like.

(Emphasis added.) Professor Josh Blackman highlighted that this mention of elections was “not inadvertent.”

This is not a gloss on any notion of the Purcell principle, which says that federal courts should be particularly reluctant to issue orders affecting elections close in time to the election that may result in voter confusion. Earlier this spring in RNC v. DNC, it figured prominently (if disputably).

But those timing-based concerns are different from the recognition that “state and local governments, not the federal courts, have the primary responsibility.” The default power over the times, places, and manner of holding congressional elections is left with the states, unless the federal government chooses to enact legislation on the topic. For state elections, there’s even less for the federal government to do. And while the federal courts have increasingly relied on the Anderson-Burdick framework as a kind of catch-all opportunity for federal review of election rules, some federal courts have begun to push back. Justice Kavanaugh’s inclusion of this phrase suggests a similar reluctance.

ICWA and me

Our family became foster parents in 2018 to a little girl (for privacy, I’ll call her Alice) who, at the time, was about to turn 2 years of age.

She’s nearly 3 and a half.

She’s still not adopted, despite our desire to adopt her.

It’s in no small part because of ICWA.

*

When a state terminates parental rights, several things must happen, including a number of prior hearings and notices given. One such notice involves the Indian Child Welfare Act (ICWA), a federal statute that places obligations on state government officials and state courts in child custody disputes if there is reason to believe the child may be of tribal descent.

Alice was born in late 2016 at 26 weeks and lived in the hospital for several months. I won’t chronicle her health troubles or complications here, except to note they were (and are) extensive.

Shortly after birth, the biological mother represented that there was Indian ancestry on her mother’s side, naming a small tribe. That triggered ICWA obligations on county officials to investigate and file notice with the tribe. If the tribe doesn’t respond after sufficient notice, the hearing proceeds.

The notice included some information about the mother’s ancestors, but not some other information. The tribe never responded to the notice.

This all predated our involvement in Alice’s life. She came into our home in 2018. In early 2019, parental rights were terminated. The parents appealed.

And on appeal (after a lengthy briefing process that took the better part of a year), the state court concluded that the county failed to comply with ICWA’s notice requirements (and with California’s requirements implementing ICWA). The case was sent back for further proceedings. Notice was re-issued. Hearings remain pending. Further appeals remain possible.

The county’s investigations have been challenging for a variety of reasons—the biological family’s ancestors were resistant to disclosing information. There was never evidence of tribal enrollment of any ancestral family member. It’s not clear that the investigation led to much additional information to notice the tribe.

My own (entirely amateur) research revealed that this particular tribe only enrolls members who were born to enrolled members and born on tribal reservation lands—Alice meets neither condition.

But ICWA requires county officials to investigate and provide notice so that the court can assess whether it is in the best interest of the child to be adopted in a tribal family or outside of it.

*

Intellectually, I understand ICWA. Given some dubious historical behavior surrounding some adoptions of children from tribal lands, providing additional guarantees to tribal relatives in adoption proceedings undoubtedly does great good for many children who would otherwise be separated from relatives and from their cultural heritage.

But in our case, like those of others, it is a deeply frustrating encounter, one that we wait patiently to navigate through.

Alice has been in state care since her birth. Ideally, disputes like hers are resolved before she turns 2 to provide her stability and security. It’s not clear that her case will be resolved before she’s 4.

From health care to child care, we navigate deep administrative challenges as a family each day that Alice is not legally adopted.

I write this not because I have strong thoughts on the litigation in Brackeen v. Bernhardt, the case makes its way through the Fifth Circuit on the constitutionality of ICWA. (It is interesting, however, how the case is characterized for certain constitutional issues, sometimes in ways that I don’t consider entirely accurate now that I’ve actually experienced it.)

Instead, I write it as someone witnessing the law in a decidedly non-lawyer-ly role of a foster parent. Despite being a licensed attorney and a teacher of law, I am pretty much an observer in this process, as things are largely outside our control.

ICWA as a statute—regardless of its constitutionality—is, I think, sadly not working as intended. I’m far from an expert in this area (again, a reason I’m not inclined to weigh in the constitutional issues in dispute). But simply directly experiencing the operation of a law like this offers me the small insight that there must be better ways—rules that can be better tailored to advance the best interests of children and Indian tribes, and rules that give children like Alice speedier placement into safe homes. Maybe those happen through improved administration and education (including improving counties’ abilities to more easily comply, or streamlining the notice process through tribes). Maybe they happen through Congress updating laws. I’m not sure. I can only experience some of the frustration and wait it out.

I have only seen a small piece of what the foster system looks like, and an even smaller piece of how Indian tribes are affected by the foster system. But I’m increasingly aware of how laws might affect children like Alice, and my awareness comes from this unique exposure in a non-legal setting.

I’ve assuredly had my eyes opened in other ways looking at our legal system as a relative outsider in the fostering process. And maybe I’ll write more about it in the years ahead.

"Necessary" voter eligibility enforcement under Kobach v. EAC

After the Court's decision in Arizona v. Inter Tribal Council last year, I noted the unusual breadth of the Court's language concerning the state's interest in enforcing (and not merely establishing) voter qualifications. (I anticipate having some comments on this unusual language in a forthcoming article.) But in the sequel to this case, Kobach v. EAC, a federal court has issued an opinion (PDF) with a disconcerting turn of logic.

I previously highlighted expansive language from the Court:

In case you're still not convinced, n.10 is also significant: if a court cannot compel the Election Assistance Commission to act on Arizona's request, "Arizona might then be in a position to assert a constitutional right to demand concrete evidence of citizenship apart from the Federal Form" (emphasis added).

I think the "might" in that sentence is not that there "might" be a constitutional right; instead, it is that Arizona "might" have established, factually, that a "mere oath" will not suffice (slip op. at 17). Consistent with the earlier progression I described, I wonder if the Court now assumes that there is a "constitutional right" of the state to not simply proscribe  voter qualifications, but to enforce  them absent federal interference.

Sure enough, the court in Kobach highlighted this exact language. It begins (p. 26):

The EAC decision provides no citation or analysis of how ITCA leads to [the] conclusion that the EAC has the authority to decide what is necessary. Nor is there express language in the NVRA or in the ITCA opinion granting the EAC such broad authority to determining what information is necessary. . . .

Further, the U.S. Supreme Court characterizes the EAC as having "a nondiscretionary duty" to include Arizona's proof-of-citizenship requirement in the instructions if Arizona can establish in this Court "that a mere oath will not suffice to effectuate its citizenship requirement." So, at the least, the ITCA opinion establishes that there is a point at which the EAC loses whatever discretion it possesses to determine the contents of the state-specific instructions.

There are two independent holdings. The first is a question of statutory interpretation; that is, it might be the case that the NVRA does not give the EAC the power to determine what information is "necessary" to enforce voter qualifications. The second is a question of the power the EAC holds; that is, at some point, a state "can establish" that its own enforcement procedures are "necessary."

The first is an interesting proposition about the scope of the statute, but I'll set that aside for the moment. The more problematic portion of the court's opinion comes when it addresses how states may establish certain information as "necessary" (p. 27):

Here, Arizona and Kansas have established that their state laws require their election officials to assess the eligibility of voters by examining proof of their U.S. citizenship beyond a mere oath. The EAC decision makes the case that the states have other means available to enforce the citizenship requirement. But the Arizona and Kansas legislatures have decided that a mere oath is not sufficient to effectuate their citizenship requirements and that concrete proof of citizenship is required to register to vote. Because the Constitution gives the states exclusive authority to set voter qualifications under the Qualifications Clause, and because no clear congressional enactment attempts to preempt this authority, the Court finds that the states' determination that a mere oath is not sufficient is all the states are required to establish.

Therefore, the Court finds that Congress has not preempted state laws requiring proof of citizenship through the NVRA. This interpretation is not "plainly contrary to the intent of Congress" because the NVRA is silent as to the issue. Consistent with ITCA, because the states have established that a mere oath will not sufficient to effectuate their citizenship requirement, "the EAC is therefore under a nondiscretionary duty" to include the states' concrete evidence requirement in the state-specific instructions on the federal form.

This cannot be correct.

First, if the states have "exclusive" authority to set voter qualifications, then Congress could not "preempt" this authority. Under the Times, Places and Manner Clause, Congress and the states have concurrent power--it resides in the states until Congress preempts it. But to the extent one is solely discussing qualifications (as the broad language of Inter Tribal suggests), that power is not one Congress may preempt. Further, it is not a power in dispute in this case; it is the enforcement power over qualifications that is in dispute.

Second, the states must "establish" that "a mere oath will not suffice to effectuate its citizenship requirement." The court's analysis makes no such finding. Its sole finding on the issue is ipse dixit: "their state laws require their election officials to assess the eligibility"; "the Arizona and Kansas legislatures have decided that a mere oath is not sufficient." That is not a finding that it is not sufficient; that is a restatement of the law.

Now, it may be that the NVRA is "silent" on this issue, in which case this analysis is truly dicta. But, in the event the NVRA is not silent, or in the event Congress wants to make the NVRA speak on the issue of enforcement, this analysis matters a great deal. Or, it may be that Arizona and Kansas have created a record that "establishes" that a "mere oath will not suffice," and the Court did not speak to that issue.

But the language from Inter Tribal has effectively limited the Times, Places and Manner Clause power of Congress (as the court in Kobach explains earlier in the opinion). And the fallout continues in confusion in this case.

What does the Constitution mean by "Legislature"?

An Arizona initiative several years ago took away the power to redistrict from the legislature and put it in the hands of an independent redistricting commission. The legislature is now challenging that this initiative as running afoul of the Times, Places and Manner Clause, which provides that the “manner of holding Elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” (A relevant news story here.) The Arizona legislature’s argument is that such power, seized from the legislature by initiative, is prohibited.

One issue is that there are a handful of cases that have limited the power of the legislature: Davis v. Hildebrant (1916), which permitted a referendum to disapprove of legislative redistricting; and Smiley v. Holme (1932), which permitted a gubernatorial veto of legislative redistricting. But there is other precedent in other constitutional contexts in which the Court has construed “legislature” to mean not simply the law-making apparatus, but the legislature itself: McPherson v. Blacker (1892), which ensured that the legislature has plenary power over the manner of appointment of presidential electors; and Hawke v. Smith (1920), which held that a state constitution could not require that proposed constitutional amendments be put to a vote of the people, as that task was reserved to the legislature.

The Arizona legislature is arguing that the initiative is unlike a veto or referendum, because it essentially removes the legislature from the process altogether (except in some smaller ministerial ways, such as giving recommendations to the commission). But I think, on appeal, it would happily argue that the functional approach in Hildebrant and Smiley was incorrect, if it has the opportunity to do so on appeal.

The definition of "legislature" has been the subject of some scholarly debate, as Rick Hasen recently argued in the Hastings Constitutional Law Quarterly (PDF) that the definition of "legislature" may be the subject of some genuine debate in the context of the Electoral College and whether changes to the selection of electors could occur by initiative. Additionally, Franita Tolson has argued in the Utah Law Review that the legislature holding this power of redistricting helps states protect themselves in our federalist structure by giving them an additional mechanism to influence federal policy.

And courts have policed the word "legislature." In 2002, a three-judge panel in Smith v. Clark struck down a state court's congressional redistricting plan because the court lacked a "legislative" function under state law. (Thanks to Christopher Greene for flagging this case.)

So what about this case? The congressional election is fast approaching in Arizona, and a result in this case should be forthcoming soon. But the definition of "legislature" is not so simple as it might appear to be. Whether the Supreme Court will weigh in is, of course, another matter.

Kobach v. Election Assistance Commission, the sequel to Arizona v. Inter Tribal Council

The Supreme Court's decision in June in Arizona v. Inter Tribal Council  did not resolve very much. Arizona had a proof-of-citizenship requirement it wanted to include as a part of its voter registration process. The requirement would have been something beyond what the national mail voter registration form (or "Federal Form") includes.

The Election Assistance Commission could allow Arizona to include that requirement, but it had not done so. In part, it had not done so because it lacked a quorum, which means it could not do business. But in part, according to the Court in Inter Tribal , it was because Arizona failed to make a proper request of the EAC.

Nine justices agreed on one thing: it is possible for Arizona's position to win in the end. Two justices simply thought Arizona could win that day, while seven deferred until the proper procedures had been followed. 

In fact, the seven-justice majority agreed that "it would raise serious constitutional doubts if a federal statute precluded a State from obtaining the information necessary to enforce its voter qualifications." (It might be noted that the Supreme Court in Northwest Austin Municipal District No. 1 v. Holder  used the language "serious constitutional questions" for purposes of the Voting Rights Act, only for the justices in Shelby County v. Holder to divide as to how to answer those "serious questions.")

The Court then continued,

Arizona did not challenge that agency action (or rather inaction) by seeking APA review in federal court, but we are aware of nothing that prevents Arizona from renewing its request. [Footnote: The EAC currently lacks a quorum—indeed, the Commission has not a single active Commissioner.  If the EAC proves unable to act on a renewed request, Arizona would be free to seek a writ of mandamus to “compel agency action unlawfully withheld or unreasonably delayed.” It is a nice point, which we need not resolve here, whether a court can compel agency action that the agency itself, for lack of the statutorily required quorum, is incapable of taking.  If the answer to that is no, Arizona might then be in a position to assert a constitutional right to demand concrete evidence of citizenship apart from the Federal Form.] Should the EAC’s inaction persist, Arizona would have the opportunity to establish in a reviewing court that a mere oath will not suffice to effectuate its citizenship requirement and that the EAC is therefore under a nondiscretionary duty to include Arizona’s concrete evidence requirement on the Federal Form. Arizona might also assert (as it has argued here) that it would be arbitrary for the EAC to refuse to include Arizona’s instruction when it has accepted a similar instruction requested by Louisiana.

Arizona and Kansas took the seven-justice majority at its word. Both Arizona (PDF) and Kansas (PDF) heard from the EAC after making a request, and in each case the EAC answered that it must defer the State's request as it lacked a quorum.

Accordingly, these States filed a complaint (PDF) in Kansas federal court. (Perhaps in an unsurprising litigation decision, Arizona joined Kansas in the potentially more-hospitable realm of the Tenth Circuit rather than its home jurisdiction of the Ninth Circuit.)

The States largely tracked the Supreme Court's advisory path in this litigation. And now we shall see where it leads.

The state's power to enforce voting qualifications

There is a great deal of skepticism over yesterday's decision in Arizona v. Inter Tribal Council (PDF). And in fairly thought-provoking pieces from Rick Hasen, Lyle Denniston, Marty Lederman, Joey Fishkin, and Josh Douglas, the positives and negatives are highlighted (with the emphasis on the negatives--that's what legal commentary is best at!).

But I want to draw a distinction between state's power to prescribe voter qualifications and the state's power to enforce voter qualifications. It's an important distinction that, I think, has been largely elided in the discussion, and it's one that is not obvious from the Court's opinion (at least, upon first blush). And, in fact, it's subtly summarized in this statement from the Court (slip op. at 15): "Since the power to establish voting requirements is of little value without the power to enforce those requirements, Arizona is correct that it would raise serious constitutional doubts if a federal statute precluded a State from obtaining the information necessary to enforce its voter qualifications."

Consider, for instance, Crawford v. Marion County Election Board (PDF), which upheld Indiana's voter identification law. The Court emphasized the distinction between prescribing and enforcing voter qualifications: while a poll tax, for instance, was not a legitimate basis to determine who was "qualified" to vote, "evenhanded restrictions that protect the integrity and reliability of the electoral process itself" are permitted (slip op. at 6, internal citation omitted). The Court in Crawford  goes on to examine this case as a routine attempt by the state to enforce its existing power to allow only eligible voters to vote.

So perhaps at one level Inter Tribal  is simply in line with Crawford  (even if it doesn't cite Crawford): there is no dispute that citizenship (like age, residence, sanity, felon status, and other traits subject to some constitutional floors) can be a basis for voter qualifications, but this case is about something other than qualifications. Inter Tribal is about NVRA paperwork; Crawford is about enforcement via voter identification.

But here's the progression I wonder if one can derive from Inter Tribal , and, again, I think, it's somewhat subtle.

1. "Arizona is correct that the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them."  (Slip op. at 13.)

2.  "Prescribing voting qualifications, therefore, 'forms no part of the power to be conferred upon the national government' by the Elections Clause . . . ." (Slip op. at 14.)

3. "Since the power to establish voting requirements is of little value without the power to enforce those requirements, Arizona is correct that it would raise serious constitutional doubts if a federal statute precluded a State from obtaining the information necessary to enforce its voter qualifications." (Slip op. at 15.)

4.  "[T]he statute provides another means by which Arizona may obtain information needed for enforcement." (Slip op. at 15.)

Note that the Court wraps up the power to enforce voter qualifications with the power to prescribe  voter qualifications. And while Crawford  dealt with a state's power to enforce voter qualifications, the implication in Inter Tribal  is that it is outside the scope of the power of the federal government  to interfere not just with the state's prescription of voter qualifications--that is its fairly frank statement in n.9 of the opinion and its gloss of Oregon v. Mitchell . It is also that it is outside the scope of the power of the federal government to interfere with the state's enforcement of voter qualifications . Indeed, the only saving mechanism here is that there is "another means" for Arizona to enforce its citizenship requirement, an administrative appeal.

In case you're still not convinced, n.10 is also significant: if a court cannot compel the Election Assistance Commission to act on Arizona's request, "Arizona might then be in a position to assert a constitutional right to demand concrete evidence of citizenship apart from the Federal Form" (emphasis added).

I think the "might" in that sentence is not that there "might" be a constitutional right; instead, it is that Arizona "might" have established, factually, that a "mere oath" will not suffice (slip op. at 17). Consistent with the earlier progression I described, I wonder if the Court now assumes that there is a "constitutional right" of the state to not simply proscribe  voter qualifications, but to enforce  them absent federal interference.

This is entirely consistent with Justice Thomas's understanding in his dissent (see, e.g., slip op. at 6-8, citing the majority approvingly that "the power to establish voting requirements is of little value without the power to enforce those requirements" and expanding upon it). He has a robust view of that power, too: "Arizona sets citizenship as a qualification to vote,and it wishes to verify citizenship, as it is authorized to do under Article 1, §2. It matters not whether the United States has specified one way in which it believes Arizona might be able to verify citizenship; Arizona has the independent constitutional authority to verify citizenship in the way it deems necessary." (Slip op. at 15.) And, "Given States’ exclusive authority to set voter qualifications and to determine whether those qualifications are met, I would hold that Arizona may request whatever additional information it requires to verify voter eligibility." (Slip op. at 16.)

In the end, we may see a powerful new precedent that would dramatically curtail any federal interference with not just state prescription of voter qualifications, but state enforcement  of voter qualifications. But time will tell.