Jack Rakove: “The framers would have been fine with sweeping national election reforms”

WaPo opinion piece:

The fate of the For the People Act is growing ever more precarious. It remains vulnerable to the whims of two Democratic senators, Joe Manchin III of West Virginia and Kyrsten Sinema of Arizona; to the massive hurdle of the filibuster; and to its own sweeping purposes. With its 10 titles and numerous subtitles, the bill offers the most ambitious program for comprehensive electoral and political reform that Americans have ever witnessed. It also marks a direct response to the turmoil that has disrupted the U.S. political system and a preemptive federal strike against the panoply of “securing the vote” laws that Republican-dominated state legislatures are considering — with the fate of American democracy seemingly resting on the outcome.

That ambition has made the legislation an easy target for criticism. (One recent example was George F. Will’s column denouncing the act as a case of “constitutional vandalism.”) In its opponents’ view, the bill encroaches too much on the legislative power of the states to comport with basic principles of federalism. The Constitution, by default, left most of the key decisions about national elections to the state legislatures. They would decide who could vote in federal elections, how members of the House and presidential electors would be selected, and how elections would be conducted.

There was one main exception to this devolution of authority: the Times, Places, and Manner Clause of Article I (or the TPM clause), which empowered Congress to “make or alter such Regulations” as the states enacted to govern congressional elections. Even that Clause could be read narrowly, though, to imply, say, that Congress might intervene when individual states failed to provide for the election of representatives, but not to design a universal scheme for the design of districts.

As a matter of historical fact, however, this tailored view does justice neither to the reasons the clause became part the Constitution nor to the larger set of problems the framers were confronting. Looking at those factors, the argument for a robust historical view of the clause grows stronger — and also the argument that the sweeping reforms Congress is considering should pass constitutional muster.

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