Gans: How Congress Can Use Its Constitutional Powers to Guarantee Voting Rights for All

In collaboration with Take CareElection Law Blog is pleased to present a series of posts offering thoughts on legislation to reform the U.S. electoral process.

Post from David Gans:

The 2018 election was rife with voter suppression. States invented new roadblocks to voter registrationaggressively purged citizens from the voting rolls, closed hundreds of polling places in areas where voters of color reside, and imposed new, stricter voter identification laws that disenfranchised minority and other voters for no good reason. Voters who surmounted these many obstacles often had to endure long waits and broken machines simply to exercise their constitutional right to vote. When the polls closed, election officials—who themselves were sometimes even on the ballot—often engaged in blatant partisan efforts to manipulate the outcome.

Fixing this long list of stains on our democracy should be one of the next Congress’s top priorities.  Already, Democrats have insisted that a comprehensive package of voting rights reforms will be the first bill introduced when the 116th Congress meets in January.  Pushing these reforms now—even if they are stymied in the Republican-controlled Senate—is the first step to making our democracy more inclusive, just, and true.  And, importantly, the Constitution explicitly gives Congress sweeping powers to protect the right to vote.

When our Constitution’s Framers wrote our national charter more than two centuries ago, they recognized that “the true principle of a republic is, that the people should choose whom they please to govern them.”  The Framers were deeply suspicious of partisan manipulation of the electoral process, and, in the Elections Clause, they gave Congress the power to “make or alter” state regulation of the time, place, and manner of federal elections.

This sweeping veto allows Congress to override state elections regulations, adopted “when faction and party spirit run high,” that “would render the rights of the people insecure and of little value.”  As Justice Antonin Scalia observed in his 7-2 majority opinion in Arizona v. Inter Tribal Council of Arizona, “[t]he Clause’s substantive scope is broad. ‘Times, Places, and Manner,’ . . . are ‘comprehensive words,’ which ‘embrace authority to provide a complete code for congressional elections.’”  Congress can use its Elections Clause authority to regulate nearly every facet of the federal electoral process, from voter registration to the counting of ballots, which in turn has downstream effects on state and local election procedures.

The Constitution also gives Congress explicit powers to combat all manner of voting discrimination in federal and state elections, including racial discrimination in voting.  The Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments all protect against discriminatory denial or abridgment of the right to vote and explicitly give Congress the power to “enforce” constitutional limits by “appropriate legislation.”  As history shows, the remedy the Framers prescribed to stamp out voting discrimination “was expressly not left to the courts.  The remedy was legislative, because . . . the amendment itself provided that it shall be enforced by legislation on the part of Congress.”  Congress has broad authority to legislate prophylactically to ensure that the right to vote is equally enjoyed by all citizens free from discrimination.

Congress’s explicit enumerated powers give it ample tools to attack voter suppression root and branch.  The Elections Clause may turn out to be the most important source of authority for three reasons.  First, so long as it is regulating the time, place, and manner of federal elections—as opposed to dictating voter qualifications—Congress has an absolute veto over state regulation.  As the Supreme Court has long recognized, Congress has a “general supervisory power over the whole subject.”  Congress does not have to make findings that states are engaged in discrimination or violating constitutional rights.  Second, while the Supreme Court is sharply divided along ideological lines over the scope of the congressional enforcement power, both liberals and conservative Justices have read the Elections Clause broadly.  Indeed, the leading Elections Clause decision—the 2013 decision in Inter Tribal Council—was written by Justice Scalia and joined in full by Chief Justice Roberts.  Third, as Nicholas Stephanopoulos notes, although Elections Clause legislation applies only to federal elections, in practice, states are likely to apply the same regime to their own elections.

Using its Elections Clause authority, Congress should reform federal elections from top to bottom to make voting safe, secure, and easy.  It could mandate automatic voter registration, providing that every U.S. citizen is registered to vote in federal elections unless he or she chooses to opt-out, a simple fix that has an impressive track record in the states.  It could sharply limit state voter purges—which have been widely used to remove voters from the rolls, even for failing to vote—and overrule the Supreme Court’s 5-4 decision in A. Phillip Randolph Institute v. Husted, which dramatically expanded the authority of states to purge voters, including for non-voting.  Congress could use its Elections Clause authority to set aside state voter ID laws, which disenfranchise large numbers of voters for no good reason.  Congress could make Election Day a federal holiday, making it easier for Americans to make it to their polling place, or mandate early voting or voting by-mail without excuse.  Finally, but not exhaustively, Congress could limit opportunities for partisan manipulation by insisting that state officials cannot simultaneously run an election and run for office.

These measures all fit squarely within Congress’s broad power to regulate the time, place, and manner of federal elections.  None come anywhere close to trampling on state power over voter qualifications.

The next Congress should not stop there in its democracy reform.  It should write a new coverage formula for the Voting Rights Act’s preclearance requirement, revitalizing the Voting Rights Act and restoring the Act’s most effective weapon against racial discrimination in voting.  In 2018, as in past years, states with a long history of voting discrimination—led this time by Georgia—pushed through a host of new laws to make it harder for racial minorities to exercise their right to vote.  But for the Supreme Court’s fundamentally flawed decision in Shelby County v. Holder, these changes would have been blocked by the Voting Right Act’s preclearance requirement.  This election offered fresh evidence regarding why preclearance was so vital to protecting the right to vote.  Congress should act to write a new coverage formula that captures the jurisdictions that, year in and year out, flout our Constitution’s promise of equal political opportunity for all regardless of race.

No doubt, conservatives will loudly object, raising specious arguments about state sovereignty and the non-existent problem of voter fraud.  But the Constitution settles the matter: Congress has sweeping powers to safeguard our democracy and “restore to the people their equal and sacred rights of election.”  It is Congress’s constitutional duty to make voting easy, secure, and safe for all citizens.

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