“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 Senators.”
U.S. Constitution, Article 1, Section 4 (the “Elections Clause”)
*Updated 6/2/2021
As of this writing, there are well over 300 voter suppression bills pending in 47 states, with statutory limits already passed in Georgia and Arizona. In Texas, Democrats in the legislature walked out to protest that state’s Republican sponsored voter suppression bill, taking away the necessary quorum. On May 31st, GOP Governor Abbott threatened to veto the budget bill which contained approvals for legislative pay. Republicans fear that they cannot win elections without exclusionary voter suppression legislation. And so they have promulgated a false narrative of “voter fraud” to make their case. And it is clearly and solely a Republican effort.
All the bills that have passed or are likely to pass are in states with Republican controlled legislatures and governors; none are in Democratic states. The goal is to eliminate as many categories of voters as possible likely to vote against GOP candidates and issues. Although even in Republican states where fraud investigations have been initiated, no evidence of any significant voter fraud has been identified (and where it has most of those miscast ballots favor Donald Trump), the justification for such voter suppression is to increase voter confidence because of voter fraud. Can states do that? Let’s start by looking at the U.S. Constitutional provision cited above:
“The Elections Clause is the primary source of constitutional authority to regulate elections for the U.S. House of Representatives and U.S. Senate. The Clause directs and empowers states to determine the ‘Times, Places, and Manner’ of congressional elections, subject to Congress’s authority to ‘make or alter’ state regulations. It grants each level of government the authority to enact a complete code for such elections, including rules concerning public notices, voter registration, voter protection, fraud prevention, vote counting, and determination of election results. Whenever a state enacts a law relating to a congressional election, it is exercising power under the Elections Clause; states do not have any inherent authority to enact such measures.
“Although the Elections Clause makes states primarily responsible for regulating congressional elections, it vests ultimate power in Congress. Congress may pass federal laws regulating congressional elections that automatically displace (“preempt”) any contrary state statutes, or enact its own regulations concerning those aspects of elections that states may not have addressed. The Framers of the Constitution were concerned that states might establish unfair election procedures or attempt to undermine the national government by refusing to hold elections for Congress. They empowered Congress to step in and regulate such elections as a self-defense mechanism.” Michael Morely, Assistant Professor of Law at Florida State University College of Law and Franita Tolson Vice Dean for Faculty and Academic Affairs and Professor of Law at the University of Southern California Gould School of Law, for ConstitutionCenter.org
Those attacking the Capitol on January 6th, now being hailed as heroes by too many Republican members of Congress who are stopping a full Congressional investigation of the underlying powers that fomented that abortive rebellion, certainly believed, as many registered Republican voters continue to believe, that they were protecting the constitutional election process. In fact, they were attempting to destroy that constitutional right. Instead of merely suppressing contrary votes, they were and are actually trying to nullify actual certified election results.
Can courts undo these efforts? Yes, if they are born of unconstitutional actions and biases that are sufficiently proven. We’ve seen voting restrictions, many set out in the Jim Crow era, tossed out by federal courts, supported by the highest court in the land. But that was before recent justices were nominated and confirmed because of their political biases, not because they were excellent jurists. The Trump legacy, particularly in the U.S. Supreme Court, suggests that Republicans will be accorded wide latitude in voter suppression legislation and other right-wing issues, including the containment and possible reversal of Roe v Wade.
Given the cloture/filibustering reality in the U.S. Senate, it is extraordinarily unlikely that Congress will elect to preempt state laws that rather obviously repress Democratic votes. “Stop the Steal” appears to be one of the few major GOP platforms, as the removal of Liz Cheney from the third most powerful House seat within the Republican congressional delegation clearly indicates. Even if Donald Trump does not run in 2024, but may continue to define GOP positioning and candidacy for years to come, can we expect Republicans to accept a 2024 result that does not result in their retaking the White House?
LA Times OpEd contributor, Doyle McManus writes for the May 19th edition: “Pro-Trump forces in dozens of states are working to change election laws to make it harder for Democrats to win — and easier for Republicans to challenge the results if their candidate loses. If they’re successful, the chaotic aftermath of the 2020 election may only have been a rehearsal for a second round in 2024… ‘What was really scary about 2020 was how close we came to a meltdown,’ Edward B. Foley, an election law expert at Ohio State University, told me. ‘It’s not too early to worry about Jan. 6, 2025.’
“One part of the GOP election-law campaign has gotten plenty of publicity: new laws in Georgia and elsewhere to make voting more difficult, including a statute that makes it a criminal offense to give people water while they wait to vote… But other, less visible actions may be even more important. In at least 36 states, Republican legislators have proposed laws to weaken the autonomy of local election officials and put more power over vote-counting in the hands of legislators.
“That’s a recipe for political meddling in election results. ‘It’s the opposite of what good election administration should be,’ Jocelyn Benson, Michigan’s Democratic secretary of state, said recently… In Georgia, for example, the same law that criminalized giving water to thirsty voters also gave the Legislature the right to appoint the chair of the state election board — and gave the board the right to take over counties’ election management… ‘The most destabilizing thing is the effort to change who’s in charge of the vote-counting process,’ Foley said. ‘That’s really dangerous.’
“And the most important battle over the ground rules for the 2024 presidential election will happen in plain sight with the 2022 elections of governors, secretaries of state and state legislators, plus members of the U.S. House of Representatives… In most election years, that process is uncontroversial. But when a losing candidate contests the election, it can turn into a thicket of ill-defined powers.
“Last year, for example, Trump asked several GOP governors to refuse to certify their states’ results — under the legal theory that if electoral votes for Biden weren’t certified, they couldn’t be counted… When Georgia Gov. Brian Kemp refused, Trump called him ‘worse than a Democrat’ and threatened him with a primary challenge.
“Next step: If no candidate has a majority of certified electoral votes, the House of Representatives decides the winner — under a peculiar system in which each state’s delegation gets one vote… If Trump had succeeded in throwing the 2020 election to the House, he could have won a second term, because 27 of the 50 House delegations have Republican majorities.
“‘To control the outcome [in a given state], one party has to be in control of both the legislature and the governorship,’ Foley told me. ‘That makes the gubernatorial elections in 2022 critical in swing states like Wisconsin, Pennsylvania and Michigan.’.. The otherwise obscure races for secretary of state will matter as well. In Georgia, where Raffensperger refused Trump’s request to ‘find’ extra votes, the former president has already endorsed a challenger, Rep. Jody Hice, who is casting himself as a Trump loyalist… ‘They are trying to lay the groundwork [for 2024] to make sure local officials will jump if Trump tells them to jump,’ Foley said. ‘They didn’t jump last time, but they might the next time.’
“Do Republicans really want to win a presidential election this way? Probably not; any political party would rather have a clear and convincing majority, without any need to resort to chicanery… But Trump clearly has no such scruples — and his supporters like House GOP leader Kevin McCarthy of Bakersfield, who hopes to be speaker of the House by 2024, have fallen in line. McCarthy signed on to a pro-Trump lawsuit that asked the Supreme Court to invalidate Biden’s electoral votes in four states, and was one of 126 GOP House members who voted against accepting the electoral votes from Arizona and Pennsylvania, which Biden won.” In a strange way, then, the mid-terms just might make GOP states that much more committed to making sure Democratic voters are marginalized. More steadfast GOP legislators and governors… unwilling to let democracy work? Will the Democratic backlash likely to result wash away those attempts to control the results? Time will tell.
I’m Peter Dekom, and at no time since the Civil War has the American democracy been so much under siege such that the nation’s very foundation of government just might not survive.
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