Tolson on Congressional Authority Over Elections

Franita Tolson (USC Gould School of Law) has posted The Spectrum of Congressional Authority Over Elections (99 Boston University Law Review 317 (2019)) on SSRN.  Here is the abstract: Congress routinely fails to articulate the source of authority pursuant to which it enacts federal statutes. This oversight forces the Supreme Court to sustain the constitutionality of these regulations based on powers that find no mention in the legislative record. The shortcomings of the record have not prevented the Court from interpreting congressional power quite broadly when a federal statute can be sustained as a lawful exercise of authority pursuant to more than one substantive constitutional provision. In the context of elections, however, the Court has been decidedly more opportunistic about whether it will examine the constitutionality of federal law within the broader spectrum of congressional authority. In Shelby County v. Holder, for example, the Court held that section…

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