Mellman: McConnell’s specious argument against federal voting laws

In his long, largely unprincipled pursuit of power at any price, Senate Minority Leader Mitch McConnell (R-Ky.) has proved particularly adept at inventing constitutional principles and American history from whole cloth.

So it was when McConnell fabricated the claim that the Senate didn’t confirm Supreme Court nominees in presidential election years; and so it is today, when he opposes federal voting rights legislation on the grounds that it “assault[s]… the fundamental idea that states, not the federal government, should decide how to run their own elections.”

Here again McConnell’s argument has no basis in either the text of the Constitution or the history of our republic.

Start with the text.

Article 1, Section 4 states, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof…” Hmm, so far it sounds like the Republican leader may be correct.

However, the sentence continues “…but the Congress may at any time by Law make or alter such Regulations.”

The Constitution does not vest ultimate power for deciding how elections will be conducted with the states. Rather it does exactly the opposite. It lets states set the rules for federal elections unless Congress decides it wants different rules.

No less a conservative than Justice Antonin Scalia, gave explicit voice to this view, writing for a Supreme Court majority, “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; Times, Places, and Manner … are comprehensive words, which embrace authority to provide a complete code for congressional elections.”

The Constitution, and its authoritative interpreters, say McConnell is wrong.

History also demonstrates McConnell’s error.

For instance, while we take for granted the idea of House elections from congressional Districts, that scheme was imposed on states not by the Constitution, but by Congress regulating our electoral system.

In 1870-71, with the backing of the same Republican Party McConnell purports to lead, Congress again asserted its control over elections, through the Enforcement Acts which, among other enactments, established federal penalties for interfering with a person’s right to vote and permitted federal oversight of state and local elections.

And where do today’s voters stand on national standards for running elections? Strongly supportive.

To take but one example, a recent Monmouth poll found 69 percent of Americans, including a majority of Republicans, favoring “national guidelines to allow vote by mail and in-person early voting in federal elections in every state.”

Public opinion, Constitutional mandates and America’s history all converge in rendering McConnell’s state’s rights argument against federal voting laws specious.

While our Constitution did give the federal government complete authority over how elections should be conducted, to satisfy the demands of slavers, the Constitution originally left questions about who could vote mostly in the hands of state legislatures.

Over time though, some state restrictions became intolerable. The Constitution was amended in 1870 to prevent states from denying citizens the right to vote “on account of race, color, or previous condition of servitude.”

Fifty years later, the founding document was amended again to prevent states from denying the right to vote “on account of sex.”

Both of these amendments empowered Congress to enforce them “by appropriate legislation,” reinforcing federal power over elections.

In short, Leader McConnell has neither a constitutional nor an historical leg to stand on in asserting that states have the right “to decide how to run their own elections.”

The American principle, the constitutional principle, was articulated by James Madison at Virginia’s constitutional ratification convention where he argued that equality required that elections “should be uniform throughout the continent.” Contra McConnell, the Constitution Madison helped write enables those uniformities to be dictated by federal law.

Mellman is president of The Mellman Group and has helped elect 30 U.S. senators, 12 governors and dozens of House members. Mellman served as pollster to Senate Democratic leaders for over 20 years, as president of the American Association of Political Consultants, and is president of Democratic Majority for Israel.