After Republicans blocked their sweeping voting rights bill in the Senate last month and with GOP-led state “election integrity” bills looming, House Democrats are going back to basics on elections.
The House Committee on Administration held a hearing on Monday to discuss what constitutional authority Congress has over state-run federal elections, with an eye on many of the provisions in the “For the People Act” that passed the House in March and was unable to overcome the 60-vote cloture rule threshold to overcome a filibuster in June due to Republican opposition.
Wisconsin Republican Rep. Bryan Steil noted that examining the constitutionality after the legislation had passed was an unusual reversal of order.
“This is really a hearing that our committee should have had before we had hearings on elections administration — before the drafting and introduction and passage of H.R. 1,” Steil said.
GEORGIA SENATORS INTRODUCE COUNTERPROPOSAL TO STATE’S VOTING LAW
The largely aspirational H.R. 1 or S. 1 “For the People Act,” which includes automatic voter registration and public funding for campaigns, appears dead in Congress due in part to the filibuster. There is virtually no chance for at least 10 Republicans to flip to support the legislation, and Democratic Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona are firmly opposed to ending the filibuster.
But elections administration remains a top issue for both Republican and Democratic voters, and Manchin’s endorsement of some voting reform measures, such as mandating at least 15 days of early voting and prohibiting partisan gerrymandering, sent Democrats back to square one as they argue in favor of less sweeping federal intervention in state election processes.
That has Democrats re-laying the foundational argument in favor of federal intervention in the nuts and bolts of election administration. At the same time, Republicans continue arguments that states running election systems is not only more in line with constitutional principles but also provides better ground-up systems in practice.
At issue was what exact powers are prescribed by Article I, Section 4 of the U.S. Constitution, which rules states shall prescribe “the Times, Places and Manner of holding Elections for Senators and Representatives,” but that “the Congress may at any time by Law make or alter such Regulations.”
University of Southern California law professor Franita Tolson argued the phrase “provides broad authority for all of H.R. 1,” though she looks at the sweeping legislation “as a list of best practices.”
Also looming over the hearing were state-level, Republican-championed “election integrity” legislation Democrats argue would restrict voting rights.
“Democracy cannot be a state-level conception. We have to have some sense of who we are as a national democracy if we’re going to hold ourselves out as a democracy,” Tolson said.
Republican Kentucky Secretary of State Michael Adams argued the current decentralized system allows each state to express its “political culture.”
“Vermont passed mail-in voting; that reflects their political culture,” Adams said. “In Kentucky, even with an expanded absentee voting and even in a pandemic, most voters last year, including most Democrats, voted in-person. That reflects our political culture.”
Tolson shot back.
“Making voting harder is not a political culture,” she said. “Partisan gerrymandering is not a political culture, right? So we can respect the ability of states to set in place a time, place, and manner as a first instance, but where states are abusing authority, Congress has power.”
University of Wisconsin law professor Daniel Tokaji had a similar assessment.
“Congress has to have the authority to regulate congressional elections, and that includes regulating to protect the fundamental right to vote, as it has sometimes had to do,” Tokaji said.
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However, Adams turned Democratic fears about the effect of state-level legislation back on Democrats.
“I understand the concern many of you have with state legislatures acting in a partisan fashion in passing election legislation, and I would encourage you to avoid doing the same thing yourselves,” the Kentucky Republican said.
