The battle lines are everywhere over the Federal government’s overreach into states’ rights. We have seen this in recent Covid mandates and election integrity issues, to name a few.
In June of 2021, the Biden administrations’ Merrick Garland, Attorney General, made a broad commitment for the Department of Justice (DOJ) to weigh in on the election integrity debate. Garland wrote that the DOJ remains vigilant in detecting, investigating, and pursuing violations of federal civil and criminal laws related to voting. The Democrat lead Congress has also tried to weigh in on the subject with bills such as H.R. 1 and H.R. 4. But just how much power is invested into Congress and/or the DOJ to control elections in the US?
Democrats in Congress attempt to extend Federal overreach of elections.
In June of 2021, Democrats failed to sell the federal takeover of state elections known as H.R. 1/S. 1 to the American people. The bill was a laundry list of left-wing wishes, including using taxpayer dollars to fund political candidates, undermine widely supported voter ID requirements, and totally destroy the authority of states to run their own elections. Democrats are continuing their efforts with new legislation called H.R. 4. This bill was carefully crafted to focus more narrow the judiciary’s key voting-rights overreach – but still violates the basic Constitutional authority of states’ rights.
H.R. 4’s goal, like H.R. 1, is to eviscerate the right of states to manage their own elections with appropriate transparency and ballot-security safeguards. It is an attempt to misuse the 1965 Voting Rights Act to achieve this goal.
The bill H.R. 4, named for the late Rep. John Lewis, takes on the Supreme Court’s treatment of voting-rights protections over the past decade. H.R. 4 is said to restore the power of the 1965 Voting Rights Act by developing a process to determine which states must pre-clear election changes with the Department of Justice. It would also require a nationwide, practice-based pre-clearance of known discriminatory practices, including the creation of at-large districts, inadequate multilingual voting materials, and cuts to polling places. The Constitutionally of this approach is of strong debate – see more here.
H.R. 4 has passed the House, passed along party lines by a 219-212 vote, but has not yet in the Senate. See here the current status of this bill.
The DOJ is using Covid to extend Federal overreach of elections.
Reps. Jim Jordan (R-Ohio) and Mike Johnson (R-La.) back in August of 2021 told in a letter to Attorney General Merrick Garland that the election guidance the DOJ issued in July is misguided as it is the states’ responsibility to set election laws, not the Justice Department’s.
Jordan and Johnson said that the U.S. Constitution empowers state legislatures with “primary responsibility for setting election rules” and that Garland’s guidance opposes the founding Constitutional document.
“Many of the changes that state and local governments made to voting procedures in 2020 were temporary, emergency changes to ‘promote both the safety of their citizens and robust democratic participation during the Covid pandemic,” the congressmen wrote. The DOJ’s July guidance was to not allow states to return their voting rules to pre-pandemic status, and if they do, it will be seen as an unlawful action by the DOJ and subject to increased oversight and possible litigation.
The DOJ continues to usurp its authority over states’ election integrity efforts.
As GOP lawmakers in Arizona reviewed the 2020 election results in a highly publicized audit, the Justice Department cautioned them to follow federal law. It is part of a broader federal effort to protect the right to vote.
The Justice Department sued Georgia in June, arguing its new law was passed with a racially motivated purpose. In Texas, Republican Governor Greg Abbott signed a new voting law earlier this month. The bill bans things like drive-through voting, which advocates say disadvantages voters of color. Is it possible the DOJ is going to weigh in here with its own litigation the way it has in Georgia?
What the Constitution says about who has authority over election integrity.
The U.S. Constitution is clear, giving state legislatures the right and responsibility to set the laws for their electoral process. There is no question state legislators are in the best position to set election laws and procedures because they are closer to the people who can and will hold them accountable.
US Constitution Article I, Section 4, Clause 1:
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.
Here is the Constitutional scholar’s agreed-upon interpretation of the 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.”
By its terms, Art. I, § 4, cl. 1 empowers both Congress and state legislatures to regulate the “times, places and manner of holding elections for Senators and Representatives.” Not until 1842, when it passed a law requiring the election of Representatives by districts, did Congress undertake to exercise this power.
In subsequent years, Congress expanded on the requirements, successively adding contiguity, compactness, and substantial equality of population to the districting requirements. However, no challenge to the seating of Members-elect selected in violation of these requirements was ever successful, and Congress deleted the standards from the 1929 apportionment act.
And here is the rub – both Congress and state legislatures have authority over election integrity. Will Congress or via laws empowering a DOJ make state legislatures impotent? What would be the point to even mention state legislatures if this was the case?
For some insight into where the Supreme Court might come down on the issue.
“If Congress were to enact such a sweeping law – replacing election laws in all states – it would be doomed by a constitutional principle even the most liberal justices of the Supreme Court have recently endorsed.” Read more about case law here.
Americans need to remain vigilant and strongly oppose the Federal overreach of states’ rights into not just election integrity issues but many other issues as well. It is a flagrant violation of what the framers of the Constitution envisioned.
