Unequal State Sovereignty: Considering the Equal State Sovereignty Principle Through Nineteenth-Century Election Laws by Zachary Newkirk

Introduction

The equal state sovereignty principle may be “our historic tradition,” but it is an ill-defined, unexplored, and ambiguous one. In Shelby County v. Holder, the Supreme Court invalidated Section 4(b) of the Voting Rights Act (“VRA”) as a violation of the “fundamental principle of equal sovereignty.” Section 4(b) contained a formula that required some jurisdictions—primarily, but not exclusively, in the South—to seek federal preclearance before changing their election laws. Such a system, the Court reasoned, resulted in disparate levels of state sovereignty no longer warranted in 2013.

The majority based their rationale on a 2009 decision that delineated the equal sovereignty principle. In Northwest Austin Municipal Utility District Number One v. Holder, the Court in dicta discussed “our historic tradition that all the States enjoy ‘equal sovereignty.’” Chief Justice Roberts explained that the VRA’s preclearance requirements “raise[d] serious constitutional questions.” He commented that preclearance seemed to encroach on “the fundamental principle of equal sovereignty” that “requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.” Roberts also noted that the VRA “imposes current burdens and must be justified by current needs.”

Four years later, the Supreme Court applied the Northwest Austin dicta in striking down Section 4(b) of the VRA. Though the lower courts upheld the VRA and found Congress had rational bases for reauthorizing the Act, a majority of the Court determined that Section 4(b) violated the equal sovereignty principle. The Court noted that a state covered under Section 5 preclearance must “wait[ ] months or years” to implement an election law “however innocuous,” while a neighboring state not covered under preclearance can “put the same law into effect immediately.” When the VRA passed in 1965, the coverage formula was sensible because blatant voter discrimination was prevalent. By 2013, the majority reasoned, the formula no longer met “current needs.” Instead, the coverage formula resulted in disparate treatment among the states that no longer was “sufficiently related to the problem it targets.”

Condemnation of Shelby County’s rationale was fierce. Some commentators asserted the principle was a departure from “longstanding precedent” and based on rationales that the Court had “flatly rejected.” One professor simply said the principle was “made up.” “[T]here is no doctrine of equal sovereignty. The opinion rests on air,” wrote then-Judge Richard Posner. Even before Shelby County, one professor characterized the “suggestion that federal legislation must treat states equally [as] a chimera, without support in constitutional text, history, or precedent.”

However murky its origins are, the Court is not likely rejecting the principle anytime soon. With this in mind, recent scholarship has examined the contours of the equal sovereignty principle. Professor Thomas Colby, in particular, argues that there is a “deep structural principle of equal sovereignty that runs through the Constitution” but noted that “no one knows what [it] means, . . . where it comes from, and what effect it has.” Colby concludes that a violation of the equal sovereignty principle—what Shelby County neglected to specify—occurs when a federal law “grant[s] more regulatory authority or capacity for self-government to some states than to others.”

Maybe. This Essay contributes to ongoing discussions about the scope and boundaries of the equal sovereignty principle by considering a little-examined set of federal laws that existed in the late nineteenth century. A federal election regulation regime imposed different burdens on different states, granting some states more capacity for self-government than others.

Assuming it has permanently entered American jurisprudence, any parameter identifying acceptable boundaries of the equal sovereignty principle could be helpful to future federal legislation that may treat states differently—such as recently proposed federal legislation to update the VRA’s preclearance formula.

  1. Federal Election Regulation in the Nineteenth Century

Historical federal election regulation illustrates the equal sovereignty principle—and its ambiguity—in action. Beginning in 1870, Congress passed a series of laws designed to enforce the Fifteenth Amendment’s voting-rights protections. These federal election laws disparately scattered federal regulatory power among the states. Applying a simple population-based formula, the laws subjected some states to more federal regulation than others. These laws, their operation, and their “universal” survival under judicial scrutiny reveal wiggle room around the scope of the equal sovereignty principle in the elections context—the same context the Supreme Court found so problematic in Shelby County.

Federal election laws in the late nineteenth century targeted racism and election fraud like ballot-box stuffing. The first Enforcement Act formed the backbone of contemporary federal election regulation policy. The law focused primarily on African American voters in the South. Among its twenty-three sections, the Act obligated officials to give “the same and equal opportunity” to black and white voters to perform any voting-related prerequisites, such as residency or literacy requirements. Non-compliance meant fines or even jail time. The Act also proscribed any person or group of people from acting to “hinder, delay, prevent, or obstruct” voting “by force, bribery, threats, intimidation, or other unlawful means.” It banned employers, landlords, or contractors from hindering voting through threats of termination, eviction, or refusals to renew leases or contracts. The Act also prohibited two or more people from conspiring to “go in disguise upon the public highway . . . with intent to violate any provision of th[e] act, or to injure, oppress, threaten, or intimidate” anyone from voting. Finally, the Act addressed well-known voting irregularities in Northern urban centers. It criminalized knowingly registering “in the name of any other person, whether living, dead, or fictitious,” or bribing, threatening, or compelling any such fraudulent registration.

The second Enforcement Act expanded federal regulation in cities. This bill, according to one historian, stemmed from Republican disappointment in the 1870 elections in Northern cities. The law required federal judges to appoint two election supervisors in precincts in only cities with at least twenty thousand inhabitants. But this supervision could only be activated when two citizens in a precinct wrote to the federal judge requesting supervisors. The judge would then appoint two supervisors—one from each party—to supervise the precinct.

Taken together, the Enforcement Acts granted the federal government two significant powers. First is the prosecutorial power. In the 1870s, the federal government prosecuted thousands of election-related crimes under the Enforcement Acts, primarily in the rural South. The number of federal prosecutions peaked in the mid-1870s. Though the Department of Justice continued to pursue election claims until the 1890s, prosecutions were few and failed to stymie Jim Crow’s rise. Second, the federal government gained regulatory power. Federal regulatory efforts outlasted vigorous federal prosecutions in the South and actually increased until the laws’ 1894 repeal. The 1890 elections, for example, saw more than ten thousand federal election officers in New York City alone.

The second Enforcement Act resulted in unequal state sovereignty under the federal government’s robust electoral-regulatory power because the law targeted different states on the basis of population. Federal oversight depended on the number of cities over twenty thousand that each state contained, which of course was—and is—correlated with a state’s total population. According to the 1870 census, sixty-eight cities had populations of more than twenty thousand. New York and Massachusetts each had ten cities that met this threshold, Pennsylvania had seven, New Jersey had six, and Ohio had five. Meanwhile, among non-Southern states, Iowa, Minnesota, Wisconsin, Maine, and New Hampshire only had one city that met this threshold while Vermont, Oregon, Nevada, Kansas, Nebraska, and West Virginia had none. In these latter states, the second Enforcement Act’s election supervision provisions had no effect.

Historian William Gillette summarized the purpose of the law’s geographic reach: “Since real power under enforcement was granted only to election supervisors in cities with a population of twenty thousand, and since all but five of those sixty-eight cities were in the northern and border states, the political intent and the practical effects were obvious.” That is, the law was a Republican attempt to mitigate Democratic control of many urban centers in electorally important states. And so, in 1872, federal election officials were ubiquitous in New York, Brooklyn, Jersey City, Baltimore, Philadelphia, and San Francisco; Chicago and Boston joined in 1876.

In 1872, Congress expanded the law to rural areas. Doing so technically brought all states under the laws’ coverage. That extension turned out to be illusory. Federal officers in rural regions received no compensation, were not permitted to arrest violators of the laws, were required to live in their stationed precinct, and were activated only when ten citizens petitioned for them—in stark contrast to the two petitioners required in large cities. One proponent of the bill, future president James Garfield, defended its provisions when he observed that federal officers could still provide a moral check on state election officials, deter possible fraudulent voters, and testify in court. Nevertheless, this rural-urban division of federal authority was a clear congressional exertion of geographic variance—a possible violation of the equal sovereignty principle.

Not so fast. If the principle originated from a “historic tradition that all the States enjoy equal sovereignty,” then one would expect the Enforcement Acts’ geographic variance based on the urban-rural divide to draw unequal-state-sovereignty objections. But the principle failed to appear in court decisions on the laws’ constitutionality.

What’s more, the principle never arose in congressional debates during the passage or repeal of the laws. In one lengthy speech opposing the bill, Senator William Hamilton observed that because the bill was “confined to cities having upward of twenty thousand inhabitants . . . [he did] not fear the bill in its practical results” because he knew these cities were not so populated. He said nothing about the disparate treatment that his state, Maryland, received compared to its neighbor, West Virginia, which would not be subject to federal regulation in the same way since West Virginia contained no city numbering more than twenty thousand people.

Indiana Congressman Daniel Voorhees’s passionate condemnation of the second Enforcement Act was representative of the laws’ opposition. He wondered:

[H]ow any sane man can justify the invasion of every town, of every township, of every city, of every village, of every hamlet in all the States of this broad land, north and south, east and west, from one ocean to the other, by Federal power, for the purpose of striking at the freedom of the ballot-box, is a mystery which I cannot solve.

Voorhees’s opposition to the laws focused on federal power applied nationwide. Many of the laws’ opponents focused on the federal government’s exercise of its Election Clause power, as a policy matter. None denied Congress had the power. In fact, a House report issued by opponents of the laws during the debates over their repeal conceded that Congress has ultimate Election Clause authority. These congressional statements make clear that opponents perceived the entire system of federal oversight of state election mechanisms as threats to states’ “authority or capacity for self-government”—not states’ authority or capacity for self-government as compared to its their less-regulated neighbors.

  1. Drawing Conclusions from the Enforcement Acts’ Unequal State Sovereignty

The absence of the equal sovereignty principle in judicial affirmations of the Enforcement Acts’ constitutionality and congressional debates is significant for two reasons.

First, this silence strongly indicates Congress’s expansive authority over federal elections. The laws’ lopsided geographic coverage of New York never posed a constitutional problem because Congress had—and still has—the ability to target New York more than other states under the Elections Clause. Under that clause, “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” In Arizona v. Inter Tribal Council of Arizona, Justice Scalia quoted longstanding precedent that Congress’s Election Clause power “is paramount.”  Congressional power is so paramount that it “may be exercised at any time, and to any extent which it deems expedient, and so far as it is exercised, and no farther, the regulations effected supersede those of the State which are inconsistent therewith.” In other words, vast authority that can vary from state to state.

Second, the Enforcement Acts’ geographic variance along urban-rural lines might have been “sufficiently related” to the problems they targeted. These laws may have survived a challenge under the “historic tradition that all the States enjoy equal sovereignty” because they were justified by current needs. After all, more voters and voter fraud existed in urban centers than in rural regions. Cities contained more potential ballot boxes to stuff, more votes to inaccurately count, and more officials to bribe. Neither courts nor legislators had to say as much because the concentration of voters in cities was so obvious.

These nineteenth-century election laws could signal to a modern Congress what “sufficiently related” means. A population-based formula lopsidedly targeting urbanized states did not violate equal state sovereignty. This was even when “the political intent and the practical effects [of the Enforcement Acts] were obvious,” according to Gillette. On the other hand, the VRA’s Section 4(b) formula that identified jurisdictions with a history of discriminatory voting practices did.

An appropriate formula for a renewed VRA likely exists somewhere between one solely based on population (even if motivated by partisan ambition) and one like the VRA’s Section 4(b). Congress can consider wholly neutral and ascertainable information like population and population distribution. By extension, Congress could conceivably consider other neutral and ascertainable information—for example, the number of voters’ complaints over insufficient election administration or machinery, the number of qualified voters turned away from the polls for administrative reasons, such as being purged from a voting roll, or instances of documented discriminatory voting practices.

Conclusion

Congress repealed the Enforcement Acts just as the major voter suppression tactics were passing Southern legislatures. Until then, the federal government “was most abundantly visible—in the form of armed, uniformed United States deputy marshals—every two years on Election Day.” Despite their age, these laws reveal the broad scope of Congress’s electoral-regulatory power—and how it applied that power disparately among states.

By law, some states received substantially more oversight than others. Placing some states under closer federal oversight impinged on these states’ capacity for self-government. That this disparate federal oversight was never challenged on equal sovereignty grounds in either a judicial or legislative process should color future efforts to navigate the principle’s muddy waters. Neutral, accessible information like population density or statistics on voter suppression can make a restored VRA compliant with the equal sovereignty principle.

Zachary Newkirk is a law clerk to a federal judge in Florida. JD & MA (History) 2017, Duke University School of Law; BA 2012, Cornell University. The views expressed here do not reflect the views of any past, current, or future employer. Thank you to Professor Guy Charles for his mentorship. Special gratitude to Meaghan Newkirk for her wonderful editing assistance.

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