Election Law Federalism

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

State Bureaucratic Undermining

Our federal rights are failing, and the inner workings of state government provide an explanation. States administer more federal rights than ever before; administering those rights requires intrastate coordination both horizontally (across cabinet-level state actors, agencies, and commissions) and vertically (with local governments like counties and towns). That coordination undermines federal law by creating bureaucratic barriers to full compliance. I unearth and identify three of these barriers—agency alienation, agency conflict, and role confusion—by surveying remedies in recent suits against state actors. These remedies take the form of choreography: they specify how internal state actors must work together to vindicate federal rights. I find that coordinating state bureaucracy requires the political will of several state actors, so federal rights that require intrastate coordination will not always reach politically marginalized groups like racial minorities and low-income populations. Because recent federalism scholarship has focused on lawful cooperation and conflict between states and the federal government, it has missed the ways that state coordination-based noncompliance can reinforce the very racial and income inequality that federal rights seek to address. State bureaucracy undermines federal rights in unexpected locations that do not follow traditional patterns of partisanship or geography. Remedying state noncompliance of this kind requires state and federal authorities to create coordination pathways through state bureaucracy responsive to the state’s coordination challenge

Pandemic Governance

The COVID-19 pandemic created an unprecedented need for governance by a multiplicity of authorities. The nature of the pandemic—globally communicable, uncontrolled, and initially mysterious—required a coordinated response to a common problem. But the pandemic was superimposed atop our decentralized domestic and international governance structures, and the result was devastating: the United States has a death rate that is eighteenth highest in the world, and the pandemic has had dramatically unequal impacts across the country. COVID-19’s effects have been particularly destructive for communities of color, women, and intersectional populations. This Article finds order in the chaos of the pandemic response by distilling a typology for the predominant intergovernmental relationships that emerged. Two of these behaviors describe intergovernmental conflict. Governments undermined each other by destabilizing and criticizing each other’s actions. They did so at all levels: up (when local governments undermined states), down (when the federal government undermined states), and across (when the federal government undermined itself). Governments abdicated responsibility when they failed to act. Two additional behaviors describe intergovernmental coordination. Governments collaborated when they actively worked together, both vertically and horizontally, to harmonize their policies. And they engaged in bandwagoning when they avoided taking initiative in making pandemic policy, opting instead to follow the leads of others. We argue that these behaviors were the predictable result of well-worn structural and political dynamics. Structurally, pandemic policy lies uncomfortably on two poles of the federal-state division of responsibilities. Ambiguous hierarchies and overlapping roles pushed governments toward conflict rather than coordination. Politically, intense partisanship transformed nearly every governance decision into symbolic, two-sided national battles. These battles provided a default set of relationships that became organizing principles for the pandemic response. We use these insights to sketch the contours of a way forward. To address the role confusion that arose from our multi-sovereigned system of governance, we propose a federal pandemic statute that emphasizes and balances role clarity, state independence, and explicit governmental action that disrupts inequality. To lessen the pull of partisanship, we advocate for the creation of decentralized but inclusive subject-matter networks among international, federal, state, and local authorities

Election Law Federalism

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

State Bureaucratic Undermining

Our federal rights are failing, and the inner workings of state government provide an explanation. States administer more federal rights than ever before; administering those rights requires intrastate coordination both horizontally (across cabinet-level state actors, agencies, and commissions) and vertically (with local governments like counties and towns). That coordination undermines federal law by creating bureaucratic barriers to full compliance. I unearth and identify three of these barriers—agency alienation, agency conflict, and role confusion—by surveying remedies in recent suits against state actors. These remedies take the form of choreography: they specify how internal state actors must work together to vindicate federal rights. I find that coordinating state bureaucracy requires the political will of several state actors, so federal rights that require intrastate coordination will not always reach politically marginalized groups like racial minorities and low-income populations. Because recent federalism scholarship has focused on lawful cooperation and conflict between states and the federal government, it has missed the ways that state coordination-based noncompliance can reinforce the very racial and income inequality that federal rights seek to address. State bureaucracy undermines federal rights in unexpected locations that do not follow traditional patterns of partisanship or geography. Remedying state noncompliance of this kind requires state and federal authorities to create coordination pathways through state bureaucracy responsive to the state’s coordination challenge

Pandemic Governance

The COVID-19 pandemic created an unprecedented need for governance by a multiplicity of authorities. The nature of the pandemic—globally communicable, uncontrolled, and initially mysterious—required a coordinated response to a common problem. But the pandemic was superimposed atop our decentralized domestic and international governance structures, and the result was devastating: the United States has a death rate that is eighteenth highest in the world, and the pandemic has had dramatically unequal impacts across the country. COVID-19’s effects have been particularly destructive for communities of color, women, and intersectional populations. This Article finds order in the chaos of the pandemic response by distilling a typology for the predominant intergovernmental relationships that emerged. Two of these behaviors describe intergovernmental conflict. Governments undermined each other by destabilizing and criticizing each other’s actions. They did so at all levels: up (when local governments undermined states), down (when the federal government undermined states), and across (when the federal government undermined itself). Governments abdicated responsibility when they failed to act. Two additional behaviors describe intergovernmental coordination. Governments collaborated when they actively worked together, both vertically and horizontally, to harmonize their policies. And they engaged in bandwagoning when they avoided taking initiative in making pandemic policy, opting instead to follow the leads of others. We argue that these behaviors were the predictable result of well-worn structural and political dynamics. Structurally, pandemic policy lies uncomfortably on two poles of the federal-state division of responsibilities. Ambiguous hierarchies and overlapping roles pushed governments toward conflict rather than coordination. Politically, intense partisanship transformed nearly every governance decision into symbolic, two-sided national battles. These battles provided a default set of relationships that became organizing principles for the pandemic response. We use these insights to sketch the contours of a way forward. To address the role confusion that arose from our multi-sovereigned system of governance, we propose a federal pandemic statute that emphasizes and balances role clarity, state independence, and explicit governmental action that disrupts inequality. To lessen the pull of partisanship, we advocate for the creation of decentralized but inclusive subject-matter networks among international, federal, state, and local authorities

Pandemic Governance

The COVID-19 pandemic created an unprecedented need for governance by a multiplicity of authorities. The nature of the pandemic—globally communicable, uncontrolled, and initially mysterious—required a coordinated response to a common problem. But the pandemic was superimposed atop our existing decentralized and uncoordinated governance structures, and the result was devastating: the United States led the world in COVID-19 infections and deaths. COVID-19’s effects have been particularly destructive for communities of color, women, and intersectional populations. This Article makes sense of the early pandemic response by distilling a typology for the predominant intergovernmental relationships that emerged, some conflictual and some collaborative. Governments undermined each other by destabilizing each other’s actions upward (when local governments undermined states), downward (when the federal government undermined states), and across (when the federal government undermined itself). They abdicated responsibility by failing to act. Governments collaborated by actively working together to harmonize policies. And they engaged in bandwagoning to avoid being the first mover in making pandemic policy, opting instead to follow or oppose the leads of others. Despite the seeming chaos of the early pandemic response, these behaviors were the predictable result of well-worn structural and political dynamics. Structurally, pandemic policy lies uncomfortably on two poles of the federal-state division of responsibilities. Ambiguous hierarchies and overlapping policy roles pushed governments toward conflict rather than coordination. Politically, intense partisanship transformed nearly every governance decision into symbolic, two-sided battles, providing a default set of relationships that became organizing principles for the early pandemic response. This Article uses these insights to sketch the contours of a way forward. It proposes a federal pandemic statute that emphasizes role clarity, state independence, and explicit governmental action to disrupt inequality. It additionally advocates for decentralized but inclusive subject-matter networks among federal, state, and local authorities to lessen the pull of partisanship