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Congressional Authority to Protect Voting Rights after Shelby County and Arizona Inter Tribal

Election Law Journal, Vol. 13, 2014

FSU College of Law, Public Law Research Paper No. 673

17 Pages Posted: 15 Feb 2014 Last revised: 14 May 2016

Franita Tolson

Florida State University - College of Law

Date Written: February 14, 2014

Abstract

This Essay, written for the 2014 AALS program on "The Right to Vote: From Reynolds v. Sims to Shelby County, and Beyond," attacks the U.S. Supreme Court's narrow view of congressional authority to regulate voter qualifications adopted in Shelby County v. Holder and Arizona v. Inter Tribal Council, and argues that Congress has significant authority over voter qualifications under Article I, section 5, which allows it to judge the elections of its members. Although Congress exercises its authority under this provision after the election has taken place, it remains a source of authority that the Court should have considered in its attempt to craft competing paradigms of state and congressional power over elections in these decisions. By examining election contests from the 47th Congress, the argument herein sheds light on the scope of congressional authority over elections by analyzing Congress’s willingness to intervene in state level disputes over congressional seats. A review of the historical record reveals that the House of Representatives often overturned elections in which state or federal law was not complied with in determining the winner, even in disputes that dealt primarily with voter qualifications. Both Shelby County and Arizona Inter Tribal tell a woefully incomplete story about congressional authority over elections, ignoring that the House’s authority to resolve election contests under state and federal law can be just as powerful as the state’s authority to determine the qualifications of electors ex ante.

Keywords: voting rights, elections, voter qualifications, Voting Rights Act, Elections Clause

Suggested Citation

Tolson, Franita, Congressional Authority to Protect Voting Rights after Shelby County and Arizona Inter Tribal (February 14, 2014). Election Law Journal, Vol. 13, 2014; FSU College of Law, Public Law Research Paper No. 673. Available at SSRN: https://ssrn.com/abstract=2396033 or http://dx.doi.org/10.2139/ssrn.2396033

Franita Tolson (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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