//  11/14/18  //  In-Depth Analysis

In collaboration with Election Law BlogTake Care is pleased to present a series of posts offering thoughts on legislation to reform the U.S. electoral process.

Unusually for a Western democracy, the United States allows subfederal bodies—the fifty states—to regulate most aspects of elections. Over the last decade, many states have used (in fact, abused) this authority to make it more difficult for eligible citizens to vote. States have imposed photo ID requirements for voting. They have slashed the periods in which people may vote early. They have hindered (in some cases, virtually prohibited) efforts to register people. They have erroneously purged people from the voter rolls. And so on.

It’s no mystery why all this voter suppression has taken place. To be blunt, Republican politicians have realized that certain facially neutral restrictions disproportionately prevent Democrats from voting. They have therefore enacted these restrictions for the sake of partisan advantage—to make the electorate more Republican than the eligible citizenry. Why do some neutral policies have a disparate partisan impact? Because they make voting more burdensome, and it’s Democratic-leaning constituencies like racial minorities and the poor who have more trouble jumping through the extra hoops. And how do we know the motivation for the voter suppression is partisan? The giveaway is who has passed the restrictions. Almost all of them have been ratified by states under unified Republican control. States run by Democrats have tended to make voting easier in recent years.

To date, most of the resistance to voter suppression has taken the form of litigation. Plaintiffs have argued that restrictive policies unjustifiably abridge the right to vote, or violate the Voting Rights Act because of their disparate racial effects, or breach various state law provisions. But now that Democrats have taken the House, it’s time to start thinking about stopping voter suppression through legislation—via laws instead of lawsuits. Of course, such bills will be neither passed by the Republican Senate nor signed by President Trump. Still, they can send a powerful message that a majority of the House now wants to expand, not contract, political participation. Failed bills may also soon become enacted legislation, in the event that Democrats win unified control of the federal government in 2020.

What sorts of measures, then, should the House consider? Here are a few options, which could be passed separately or combined into an omnibus package. The House could require states automatically to register citizens when they turn eighteen—and then to keep them on the voter rolls as long as they remain eligible to vote and haven’t moved to another state. The House could prohibit the disenfranchisement of ex-felons who have completed their prison sentences. The House could mandate that states offer alternatives to in-person voting on Election Day, like early voting and mail-in voting. For those who prefer to vote on Election Day, the House could make it a federal holiday or move it to a weekend. The House could ban photo ID requirements for voting, or permit them only if they’re paired with exemptions for people lacking IDs. And because none of these steps would eliminate the incentive to engage in voter suppression, the House could authorize a federal agency to promulgate further regulations. These additional rules could block creative new means that states devise for limiting the franchise.

Most of these suggestions go beyond anything Congress has previously done. (The closest analogues are the Voting Rights Act and the National Voter Registration Act. But the VRA dealt only with racial discrimination in voting, while the NVRA merely made it easier for people to register to vote.) An obvious question about the ideas is thus whether they’re constitutional. Does Congress actually have the power to preempt and override state electoral regulations to this extent?

The answer would seem to be yes to the extent the measures apply to federal elections. Under the Elections Clause, Congress may “make or alter” regulations that relate to “the Times, Places and Manner of holding Elections for Senators and Representatives.” This power, Justice Scalia explained in the 2013 case, Arizona v. Inter Tribal Council, is near-plenary. Its “substantive scope is broad.” It “embrace[s] authority to provide a complete code for congressional elections.” And it is “paramount, and may be exercised at any time” to “supersede those [policies] of the States which are inconsistent therewith.”

There may be a catch, though. The Constitution appears to distinguish between the time, place, and manner of elections, as to which Congress may legislate as it pleases, and the conditions for voting, which are up to the states. According to Article I, Section 2, the “Electors” in U.S. House races “shall have the Qualifications requisite for Electors” in state house races. The Seventeenth Amendment uses identical language with respect to voters in U.S. Senate elections. Thus, if any of the suggested policies pertain to voter qualifications, they may exceed Congress’s authority under the Elections Clause. That provision arguably extends to how elections are conducted but not to who may vote in them.

This exception, fortunately, is unlikely to swallow the rule. Of the various proposals I mentioned, only the one seeking to enfranchise ex-felons involves voter qualifications. And even on that front, very few state constitutions actually declare that not having committed a felony, or having completed one’s prison sentence, is an official qualification for voting. (Felon disenfranchisement is more often accomplished by statute and without reference to whether a clean record is a voter qualification.) Accordingly, in most circumstances, a federal law enfranchising ex-felons wouldn’t conflict with any judgments that states have made about who should be an elector in their elections. Only a handful of states have bit the bullet and formally held that ex-felons are not members of their political communities.

All of this analysis only addresses federal elections. Could Congress also make it easier to vote in state elections? To do so, interestingly, Congress may not have to regulate them directly. Say an omnibus package along the lines sketched above was enacted, but only with respect to federal elections. States would then have to decide whether to maintain two electoral regimes, one for federal races and another for state races, or a unitary electoral system. If history is any guide, most of them would pick a single system. The NVRA, notably, applies only to federal elections. Yet within a few years of its 1993 passage, every state had chosen to abide by its terms in state as well as in federal races. The same result—driven by the same state disincentive to operate two distinct electoral regimes—is quite conceivable here.

If Congress nevertheless extended its new measures to state elections, two constitutional provisions would likely empower it to do so. The first is the Commerce Clause. State elections themselves substantially affect interstate commerce because they cost large amounts of money, much of which is raised from out-of-state donors or disbursed to out-of-state consultants, advertisers, and the like. The results of state elections have an even bigger impact on interstate commerce. These outcomes determine who holds state elected offices—and thus who has control over about two trillion dollars of annual state revenue and spending.

The Fourteenth Amendment is the other relevant constitutional provision. According to cases like Anderson v. Celebrezze and Burdick v. Takushi, it prohibits electoral policies that unjustifiably burden the right to vote, with the intensity of judicial scrutiny varying in tandem with the severity of the burden. Importantly, under this doctrine, discriminatory intent does not have to be shown to establish liability. The key issue is therefore whether the proposals outlined earlier are a congruent and proportional response to underlying constitutional violations whose crux is a needless abridgement of the franchise—not purposeful discrimination. Framed this way, I think the answer is yes. All of the pieces of the omnibus package try to stop forms of voter suppression that either have been found unconstitutional (by certain courts) or at least have been subjected to serious legal challenges. All of the pieces, that is, prevent or remedy unconstitutional activity, and so are appropriate legislation enforcing the Fourteenth Amendment.

To be sure, as we saw in the Obamacare litigation a few years ago, an argument that initially seems implausible can quickly become more compelling as it’s repeated by litigants, commentators, and ideologically receptive judges. Consequently, I wouldn’t wager much that the reforms I described would ultimately be upheld by a conservative Supreme Court. Nevertheless, at least based on current precedent, Congress does have the power to enact sweeping changes to federal and state elections. Like all legal judgments, this is a contingent conclusion, but for the present, it still holds.

Versus Trump: The Military in the U.S. and Proxy Voting in the House

6/7/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason and Charlie take on two topics. First, what can the president legally do to use the military on American soil? Second, is it legal for the House of Representatives to vote by proxy, without being physically present in D.C., as alleged in a new lawsuit by House Republicans? Listen now!

Charlie Gerstein

Civil Rights Corps

Versus Trump: What Will Happen To Michael Flynn?

5/24/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss the extraordinary motion to dismiss Michael Flynn's criminal case. Does the DOJ's logic make sense? And what can Judge Sullivan do if he chooses not to dismiss the case? Listen now!

Charlie Gerstein

Civil Rights Corps

Versus Trump: Can The Presidential Election Be Cancelled?

5/11/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss the question of whether the upcoming election can be "cancelled" for political or pandemic reasons. They agree it'd be illegal...but does that mean it absolutely cannot happen? Listen now!

Charlie Gerstein

Civil Rights Corps