The Play in the Joints of the Election Clauses

Source: Derek T. Muller, Pepperdine University – School of Law, Legal Studies Research Paper No. 2014/17, April 18, 2014

From the abstract:
The Constitution delegates election administration to both the federal government and the state governments. But delineating the boundary between these sovereigns has not been a particularly easy task. The Supreme Court has not been inclined to offer precision regarding the proper scope of authority. This essay examines risk of overlapping roles in the Election Clauses among legislatures and executive officials, as litigation over those proper roles looms. It highlights the uncertainty in two recent Supreme Court opinions, Arizona v. Inter Tribal Council of Arizona and Shelby County v. Holder, and notes that the Court’s jurisprudence has left considerable “play in the joints,” not necessarily because the Election Clauses are in tension, but because of its unwillingness to explain how matters like voter identification and registration should probably be allocated. It identifies some initial solutions for categorizing certain types of election laws, and emphasizes the deep uncertainty in the existing jurisprudence.

A version of this essay was presented on a panel at the Section on Legislation and the Law of the Political Process at the American Association of Law Schools Annual Meeting in 2014.