A bit lost in the reporting on the Democrats’ continued infrastructure dithering was the October 20 vote by all 50 Senate Republicans against commencing debate on The Freedom to Vote Act (my acronym: the “FVA”), a voting rights measure that U.S. MN Sen. Amy Klobuchar, U.S. WV Sen. Joe Manchin, and other Democratic and Independent Senators drafted specifically to attract bipartisan support for federal electoral reform. A link to a summary of the bill set forth on Ms. Klobuchar’s Senate website (that in turn provides a link to the almost-600-page text of the bill itself, of which I confess that I have only read Title III, Subsection A, which restricts states’ right to remove their local administrators of federal elections) is attached below. Among other things, the measure would make Election Day a public holiday, provide for uniformity in voter registration, state voter registration administration and voting procedures, increase security for cast ballots, and require disclosure of “Secret Money” contributed to campaigns. It would also prohibit partisan interference or control of local election officials in the conduct of their federal election responsibilities and require states to engage in nonpartisan congressional redistricting. Seemingly noncontroversial stuff – if one ignores the decade-long nationwide Republican Party efforts at state partisan gerrymandering, and, more recently, to restrict voter access and to take legislative control over federal election results they don’t like.
Again, the Senate vote wasn’t upon the bill’s passage, but merely upon whether it could be debated.
After taking Constitutional Law in law school, I spent no time – zero — in the area during my legal career, so there are undoubtedly a number of legal eyes — and, I suspect, a number of eyes that who don’t have legal degrees 😉 – reading these pages who know a bunch more about Congress’ authority to regulate federal elections than I do. Its power appears fairly straightforward in some respects, in others perhaps not as obvious as media reports imply. A link to “The Scope of Congressional Authority in Election Administration,” a report issued by the United States General Accounting Office (the “GAO”) to Congress four months following the Bush/Gore 2000 presidential election, is immediately below. I don’t claim that this is the best or most current authority – merely that it is most pertinent that I located ;).
Two parts of the Constitution seem of particular import:
Article I, Section 4, Clause 1 [known as the “Elections Clause”]:
“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 chusing [sic] Senators.”
Article II, Section 1, Clauses 1-3:
“[A] President of the United States … shall … be elected, as follows: Each State shall appoint, in such manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress …. The Congress may determine the Time of chusing [sic] the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”
One doesn’t need a legal degree to see that Congress’ Constitutionally-prescribed power under the Elections Clause to regulate the elections of Senators and Representatives is broader than its stated authority to regulate presidential elections under Article II. As the GAO noted in its report, “At the time of the Constitution’s adoption in 1787, general elections for President were not contemplated. The Constitution provides, instead, for the election of the President by electors appointed by each state. The state legislatures are empowered to direct the manner in which the electors shall be appointed, and all 50 states and the District of Columbia, in turn, currently provide that presidential electors be elected by popular vote.”
In its report, the GAO cites a number of United States Supreme Court opinions regarding Congress’ power to regulate federal elections. The two arguably of most interest, Smiley v. Holm (1932) and Burroughs v. United States (1934), ironically issued by Courts whose members would later be railed against by President Franklin Roosevelt for curmudgeonly finding unconstitutional various New Deal measures, each strongly upheld Congress’ right to supersede the states’ power to administer federal elections. While the holding in Smiley, dealing with reapportionment of congressional districts, was perhaps not surprising given Article I’s straightforward text regarding Congress’ right to “amend” states’ regulations affecting congressional elections, the Court’s holding in Burroughs was textually a longer stretch. The petitioners in Burroughs alleged that given the narrower scope of authority over presidential elections granted to Congress in Article II, the federal law under which they had been convicted of conspiracy could not be properly applied to their use of funds to influence the election of a state’s presidential electors. As the GAO indicated in its Report, the Court found such a narrow a view of Congressional power “without warrant.” The GAO quotes the Court as adding:
“To say that Congress is without power to pass appropriate legislation to safeguard [a presidential] election from the improper use of money to influence the result is to deny to the nation in a vital particular the power of self-protection. Congress, undoubtedly, possess that power, as it possesses every other power essential to preserve the departments and institutions of the general government from impairment or destruction, whether threatened by force or by corruption.”
Reasonable? Certainly. In the one part of the ponderous FVA that I have read – limiting statewide election authorities’ power to override local elections officials – the FVA’s drafters went out of their way to assert that Article I’s Elections Clause grants Congress broad power over administration of “Federal Elections.” The Elections Clause actually only authorizes Congress’ power over Congressional Elections. I’ve previously suggested in these pages that the Trump presidency demonstrated that at this point in our history, it is the character of the President, not the power of Congress, that is our bulwark against autocracy. Given Congress’ more limited Constitutionally-described powers with regard to presidential elections, taken together with the fact that the Supreme Court specifically declared that the statute it upheld in Burroughs did not “… in purpose or effect … interfere with the power of a state to appoint electors or the manner in which their appointment shall be made,” how confident are you today, with the conservative literalists sitting on the Supreme Court, that the Court would uphold a federal law insofar as it was cited as authority to limit a State’s administration and assessment of the outcome of its presidential election, and reject that State’s claim that such federal law violated the state’s Constitutional right for its legislature to appoint its presidential electors in the manner of its legislature’s choosing?
This is long enough. I’ll repeat the above caveat: I was never a constitutional lawyer. I would welcome the guidance of anyone who can cite authority placing Congress’ authority to regulate presidential elections on firmer ground than suggested here, and/or the reassurance of anyone who is confident that I’m being paranoid.
The “Ryan Syndrome” and the Filibuster in Part II.