‘Constitutional Conservatives’ Have Some Reading Up to Do
"Much of what’s in the Constitution is vague, imprecise or downright unclear. But some parts are very straightforward.
For example, Article 1, Section 4 states that “the 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, except as to the Places of choosing Senators.”
Or, as Justice Antonin Scalia — quoting a previous ruling — argued in 2013 in his opinion for the court in Arizona v. Inter Tribal Council of Arizona, “The power of Congress over the ‘Times, Places and Manner’ of congressional elections ‘is paramount, and 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.’”
The legal scholar Pamela S. Karlan put it this way in a 2006 report on the Voting Rights Act: “The Supreme Court’s recent decisions under the elections clause have confirmed the longstanding interpretation of the clause as a grant of essentially plenary authority.” In other words, Congress has absolute, unbending power to regulate federal elections as it sees fit.
For this reason among many, it has been strange to see Republican politicians — including some self-described “constitutional conservatives” — denounce the Democrats’ proposed new voting rights legislation as an illegitimate “federal takeover” of federal elections.
In an op-ed for The Washington Post, former Vice President Mike Pence denounced the bills and the effort to pass them as a “federal power grab over our state elections” that would “offend the Founders’ intention that states conduct elections just as much as what some of our most ardent supporters would have had me do one year ago.”
On Twitter, the governor of Mississippi, Tate Reeves, called the bill — which would allow for same-day voter registration, establish Election Day as a national holiday and expand mail-in voting — “an unconstitutional federal takeover of our elections” that would “make it easier to cheat.”
Not to be outdone, Mitch McConnell slammed the bill as a “sweeping, partisan, federal takeover of our nation’s elections.”
“We will not be letting Washington Democrats abuse their razor-thin majorities in both chambers to overrule state and local governments and appoint themselves a national Board of Elections on steroids,” the Senate Republican leader declared.
Although Reeves is the only lawmaker in this group to have called the Democratic election bill “unconstitutional,” the clear implication of the Republican argument is that any federal regulation of state elections is constitutionally suspect. We already know that this is wrong — again, the Constitution gives Congress the power to regulate state elections for federal office — but it’s worth emphasizing just how wrong it is.
In addition to the Supreme Court, which has affirmed — again and again — the power of Congress to set “the Times, Places and Manner” of federal elections, there are the framers of the Constitution themselves, who were clear on the broad scope of the clause in question.
Alexander Hamilton defends it in Federalist 59 as a necessary bulwark against the interests of individual states, which may undermine the federal union. “Nothing can be more evident than that an exclusive power of regulating elections for the national government, in the hands of the State legislatures, would leave the existence of the Union entirely at their mercy,” Hamilton writes.
“If the State legislatures were to be invested with an exclusive power of regulating these elections,” he continues, “every period of making them would be a delicate crisis in the national situation, which might issue in a dissolution of the Union.”
“Every government,” he says with emphasis, “ought to contain in itself the means of its own preservation.”
Similarly, as the historian Pauline Maier recounted in “Ratification: The People Debate the Constitution, 1787—1788,” James Madison saw the Election Clause as a measure that would “allow Congress to use its power over elections against state electoral rules that were ‘subversive of the rights of the People to a free & equal representation in Congress agreeably to the Constitution.’ ”
The 15th Amendment to the Constitution, ratified in 1870, expanded and reaffirmed the power of Congress to regulate federal elections, stating that, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude” and that “The Congress shall have power to enforce this article by appropriate legislation.”
Both the Enforcement Act of 1870, which established criminal penalties for interfering with the right to vote, and the Enforcement Act of 1871, which created a system of federal oversight for congressional elections, were passed under the authority granted by the Elections Clause and the 15th Amendment. The proposed Federal Elections Bill of 1890, which would have allowed voters to request direct federal supervision of congressional elections, was also written pursuant with the government’s expressly detailed power under the Constitution.
It is one thing to say that a new election bill is unnecessary and that it attempts to solve a problem that does not exist. In large part because of the efforts of voting rights activists trying to overcome the obstacles in question, voter suppression laws do not appear to have a substantial impact on rates of voting, and overall voter turnout has increased significantly since the Supreme Court undermined the Voting Rights Act in 2013.
But there is no question, historically or constitutionally, that Congress has the authority to regulate federal elections and impose its rules over those adopted by the states. Nor does this have to be bipartisan. Nothing in Congress does.
The 1960s were one of the few times in American history when support for voting rights — or at least the voting rights of Black Americans — did not fall along strictly partisan lines. For a part of the 19th century, Republicans took the lead as the party of expanding the vote. Today, it is the Democratic Party that hopes to secure the right to vote against a political movement whose clear ability to win votes in fair elections has not tempered its suspicion of easy and unrestricted access to the ballot.
There are times when the federal government needs to take election rules out of the hands of the states. Looking at the restrictions and power grabs passed by state Republican lawmakers in the wake of Donald Trump’s defeat, I’d say now is one of those times. It may not happen anytime soon — the voting rights legislation in question went down to defeat this week — but it should remain a priority. The right to vote is fundamental, and any attempt to curtail it should be fought as fiercely and as aggressively as we know how."