As the fight over election reform heats up in Congress, the White House is ramping up the rhetoric, declaring that President Biden and Vice President Harris are “incensed by the anti-voter laws that are trampling on our constitutional principles.” It is a mantra repeated on an array of liberal news sites, but the coverage tends to be selective in what constitutional principles are being abridged. “Our constitutional principles” include state power over elections.
While the president decries an “unprecedented attack on democracy,” the federalization of elections being pursued by Democrats actually would contravene what the Framers considered a core protection of democracy. By ignoring those countervailing principles, the Democrats are creating a dangerous blind spot in these proposed laws. The resulting litigation could leave core election rules in doubt heading into the next round of elections.
When the Constitution was written, the Framers expressly warned of the need to keep the federal government at bay in elections. South Carolina constitutional convention delegate Charles Pinckney noted that “great care was used to provide for the election of the president of the United States independently of Congress; to take the business as far as possible out of their hands.” It was done, he explained, because Congress “had no right to meddle with it at all.” Many Framers feared the power of the central government and wanted to prevent the abuses of Great Britain in the use of executive powers.
This view was reflected in the Electors Clause of Article II, Section 1, which confines the power of Congress to determining “the day on which [electors] give their votes; which day shall be the same throughout the United States.” Where Congress is left with the timing of such elections, states are left the manner in which those elections are held.
Not only did this state control over elections advance the purpose of decentralization of authority, it reflected the strong federalism principles in the Constitution. States were viewed as “laboratories of democracy,” with each pursuing different approaches to governmental functions, including elections. They also were closest to the voters, who could more readily change laws and policies on the state level.
These are “constitutional principles” that framed the system of elections in the United States, but they are routinely ignored in Democratic calls to pass these laws to “defend democracy.” The failure to consider these countervailing principles has left many voters unaware of the likely constitutional challenges if even one of two election reform laws are passed. The Constitution protects the right to vote but also the right of states to set the manner of voting. You cannot protect one by negating the other. If states deprive “millions” of voters of the right to vote, as claimed by Democrats, then they will be stopped by the courts.
The problem for Democrats is that not only are voter-identification laws popular with voters but are likely to be upheld by the courts, along with other provisions dictating conditions for voting. Absent a federal takeover of elections, laws like the one in Georgia are likely to be upheld.
In McPherson v. Blacker (1892), the Supreme Court reaffirmed that line of state control in holding that the Constitution “leaves it to the [state] legislature exclusively” how a state conducts presidential elections and stressing that the state legislature’s power “can neither be taken away nor abdicated.” There may be more leeway on congressional elections, since the Elections Clause expressly gives Congress the power to “make or alter such regulations.” However, the clause still leaves to the states the primary role in establishing the “times, places and manner” of congressional elections. But the Democrats’ proposed changes would sweep across all state and federal elections and flip the balance of the Constitution.
Many of us have long encouraged Congress to use its spending powers to create better election practices. Congress has spent billions, but problems continue. Congress could condition funding on uniform election practices, but many states could well decline federal funds rather than surrender control over elections. Moreover, by withholding massive funds or imposing duties on states, Congress could cross the line into unconstitutional “commandeering” or “coercion” of the states.
The two main House bills seek just such a sweeping federalization of elections. The “For the People Act” (H.R. 1), for example, would negate state laws on voter identification and vote-curing rules and “ballot harvesting,” bar the purging of voter lists, dictate registration and removal conditions, and impose other federal rules in a massive 800-page takeover of elections.
The “John Lewis Voting Rights” Act (H.R. 4) is equally comprehensive. It seeks to negate the Supreme Court ruling in Shelby County v. Holder (2013), which struck down the coverage formula for Section 5 of the Voting Rights Act (VRA). The law would not only impose a new interpretation that places states again under federal controls but would impose pre-clearance limits for all states for changes that impact minority voters, from the setting of political boundaries to the imposing of voter-ID rules to using “at large” districts.
Key provisions in both bills would collide headlong into Supreme Court cases. For example, Democrats want to force the disclosure of super PACs and “dark money” groups, despite Supreme Court cases holding that anonymity is a protected part of political speech. (Just last month the Court voted 6-3 to strike down California’s donor-disclosure law.) They also seek a constitutional amendment to reverse the court’s decision in Citizen’s United, which upheld the free speech rights of corporations.
To justify such intervention in an area of state control, Democrats and legal experts redefine what is a violation of state election authority. However, the Constitution is a bit more difficult to “re-imagine” than policing or education. Indeed, in City of Boerne v. Flores (1997), Justice Anthony Kennedy, writing for a 6-3 majority, struck down the application of the Religious Freedom Restoration Act (RFRA) of 1993 to a state law. The court held that “Congress does not enforce a constitutional right by changing what the right is.” Kennedy stated that the court has been the final arbiter of what the law means since Marbury v. Madison and it is not in Congress’s power “to determine what constitutes a constitutional violation.” (Not to be outdone, various legal experts are calling not just for court-packing but challenging the very concept of judicial review.)
In today’s political environment, even raising such countervailing constitutional principles risks being denounced as a racist. It is an all-too-familiar pattern, as politicians and the media dismiss constitutional concerns. The result is that, when courts inevitably overturn provisions, some citizens are again enraged — not at the Constitution’s drafters but at judges.
President Biden may be “incensed by the … trampling on our constitutional principles,” but you cannot be selective in your outrage or your principles. The Constitution works as an indivisible whole to bring balance and to protect against the concentration of power in our electoral system. We will not be able to address election controversies until we agree to respect all — not just some — of our constitutional principles.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.