Curiosity about Voting, The Constitution, and Law

This is part two of my day-off-curiosity about voting. As noted in the previous post, it is moral obligation to cast your vote. And there has been a bevy of action in State legislatures about voting. So… the moral landscape may be changing. I was curious.

As of mid-February, thirty-three states have introduced, prefiled, or carried over 165 bills to restrict voting access. These proposals primarily seek to: (1) limit mail voting access; (2) impose stricter voter ID requirements; (3) reduce voter registration opportunities; and (4) enable more means and reasons to purge voter roll. But then other state lawmakers are seizing on an energized electorate and persistent interest in democracy reform. By mid-February, thirty-seven states have introduced, prefiled, or carried over 541 bills to expand voting access mostly regarding the same topics listed above.

Apart from the details, there is a debate about the constitutionality of the scope of Congressional authority as regards election administration. The question, simply put, is whether Congress may pass any federal laws that restrict the states’ rights and abilities to regulate, manage, and implement voting for national offices, e.g., Senators, Representatives, or the President.

The following is an excerpt from a 2001 GAO report to the House and Senate regarding administration of elections with federal implications. “Notwithstanding the state role in elections, Congress has authority to affect the administration of elections in certain ways. Congressional authority to legislate in this area derives from various constitutional sources, depending upon the type of election. With regard to the administration of federal elections, Congress has constitutional authority over both congressional and presidential elections.”

“Congress’ authority to regulate congressional elections derives primarily from Article I, Section 4, Clause 1 of the Constitution (known as the Elections Clause). The Elections Clause provides that the states will prescribe the “Times, Places and Manner” of congressional elections, and that Congress may “make or alter” the states’ regulations at any time, except as to the places of choosing Senators. The courts have held that the Elections Clause grants Congress broad authority to override state regulations in this area. Therefore, while the Elections Clause contemplates both state and federal authority to regulate congressional elections, Congress’ authority is paramount to that of the states.”

“With respect to presidential elections, the text of the Constitution is more limited. Specifically, Article II, Section I, Clause 4, provides that “Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.” Despite this limited language, the Supreme Court and federal appellate courts have upheld certain federal statutory provisions regulating presidential elections that go beyond regulating the “time” of choosing the electors. However, because federal legislation that relates solely to the administration of presidential elections has been fairly limited, case law on this subject has been sparse. Consequently, the precise parameters of Congress’ authority to pass legislation relating to presidential elections have not been clearly established.”

As mentioned, this is a 2001 document, and there have been some additional federal case law on the subject. As well, on March 2, 2021 the Supreme Court heard arguments on an Arizona case that could change the use of the Voting Rights Act to protect access to the ballot. At issue before the court are Arizona laws forbidding third-party collection of ballots, which Republicans call harvesting, and another requiring election officials to discard ballots cast at the wrong precinct. The broader question is the future of the Voting Rights Act, and whether states will be allowed to restrict voting access unimpeded. And what might be the effect of HR-1 on all this?

Will there be more posts in this evolving “Curiosity” series? Maybe this weekend I will offer some curious findings about why the GOP might want to expand voting rights as suggested in HR-1. But right now, I am going to read a book, watch a movie (thanks Sam and Bill for the recommendations), or take a nap…. or all three. In the meantime, stay curious, my friends!

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