Election Law Federalism

IntroductionThe Supreme Court recently hobbled section 5 of the Voting Rights Act in Shelby County v. Holder.1 Section 2-the Voting Rights Act's other major antidiscrimination provision-is in the crosshairs.2 This Article presents the first comprehensive examination of the important federal voting laws still on the books after Shelby County.3 Perhaps because these laws have traditionally operated in the shadow of the Voting Rights Act, little scholarly literature evaluates how they operate within the diverse set of legal relationships implicated by election law.4 These statutes present challenges with implications for election law broadly.Specifically, this Article investigates the National Voter Registration Act of 1993 (NVRA),5 the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA),6 and the Help America Vote Act (HAVA)7 (collectively, the "federal election statutes"). The NVRA requires states to offer voter registration opportunities at certain state offices.8 UOCAVA requires states to transmit ballots to military and overseas voters in time for those voters to cast their ballots.9 HAVA requires states to adopt voting machine technology and ensure accessibility.10 Each statute holds states responsible for ensuring that their elections meet conditions the federal government believes to be necessary for a fair electoral process.These three statutes differ in character from the Voting Rights Act in two important ways. First, they take a race-neutral approach. Whereas the Voting Rights Act prohibits vote discrimination on the basis of race or color,11 the federal election statutes create universal civil rights in the context of election administration. That is, they create a series of election-related responsibilities for states that are designed to facilitate a fair elections process. Those obligations attach regardless of the race or color of the voter. Despite their race-neutral approach, however, the statutes can affect the role of race and class in elections. Voter registration rates, for example, vary widely by race and income;12 the NVRA can play a role in remedying those inequalities by easing access to voter registration. Since Shelby County, a number of commentators have suggested that as the Supreme Court becomes more and more hostile to antidiscrimination legislation and affirmative action programs,13 the federal election statutes may provide a model for fortifying the right to vote in a manner palatable to the Court.14Second, the enforcement mechanisms of the federal election statutes differ from that of the Voting Rights Act, which imposes liability directly on jurisdictions for their own discriminatory actions.15 By contrast, the federal election statutes hold states liable for noncompliance even though local governments, and not states themselves, assume most election administration responsibilities. This enforcement mechanism is reasonable: it would be nearly impossible for the federal government to enforce these statutes against the thousands of counties and municipalities that actually administer elections.16 But it also creates a liability mismatch that is reflected in both state briefing and court decisions pursuant to these statutes. States regularly argue that (1) counties, not states, are the proper defendants in these suits; and (2) states discharge whatever statutory responsibilities they retain through some oversight of local government.17 Courts have largely rejected the idea that states may evade liability by delegating responsibility to counties,18 but questions exist as to whether and how the federal government may force states to enforce the statutes against their own local governments, especially when no cause of action exists under state law.19 To this day, states continue to argue that their decentralized systems of election administration exempt them from complying with the statutes and instead shift that burden to local governments.20 This belief may help explain the widespread noncompliance with these statutes. …