Federalism and the Facilitation of Elections

Introduction

Elections are considered to be the foundation of democratic principles; they are how the public obtains a voice in politics, either directly or through representation. It is the state’s power and responsibility to facilitate free and fair elections through their legislatures, which leads to a wide variation in election laws across the United States. Without a national standard for election formating, each state has unique quirks and methods to their elections, such as caucuses or closed primaries. Some of these methods, however, cause mass problems with voter suppression and tipping the scales of elections.

In the past, poll taxes, literacy tests, and voter intimidation led to massive disenfranchisement of black voters. In the present, gerrymandering, voter ID laws, the closing of polling locations, and restrictions on voter registration seem to be continuing this legacy. While some states have Election Day registration (EDR), which increases the turnout of voters by 5%, other states enforce photo ID laws, which decreases the turnout by up to 5-10% (Shelley de Alth 2009). While all these extensive discrepancies may make it seem like national regulation of elections is the obvious solution, the American political system of federalism does give states the autonomy to decide how to run their elections. However, Congress does have a responsibility to ensure through legislation that the states do not violate the civil liberties and rights of citizens guaranteed by the Constitution.  By examining the conflicting roles of the states and Congress in facilitating elections, the questions of division of power, federalism, and how to protect rights and liberties come into the spotlight.

Despite all states taking variant approaches to running elections, few actions from Congress have passed in order to control or unify nationally. Constitutionally, there is a blurred line as to what level of government has a right to exert control over the election process. The states have the right to run elections independently through their own constitutions, yet Congress also has the responsibility to ensure the compliance of states with the U.S. Constitution. Is this lack of intervention from Congress part of the problem, or would increased interference only make matters worse? Examining the ways in which Congress has attempted to regulate elections in conjunction with the pushback to these laws paints a picture of this constitutional paradox within the structure of federalism. Throughout this paper, I will briefly describe federalism and the conflicting powers within the Constitution that lead to a struggle between the autonomy of state legislatures and Congress’ usage of the “necessary and proper” clause. I will also explore the effectiveness of Congress’s interventions on the states, and if Congress will be intervening on the election process again in the near future.

Federalism and Congress

Federalism is an essential part of the United States political system. The framers of the Constitution formed the American government out of a colonial system in which the individual colonies were, in identity, like separate countries. This lead to the writing of the Articles of Confederation and, later, the Constitution to put an emphasis on the autonomy of states. The national level of government was only receiving a more powerful position in the Constitution’s framework due to the failure of the power structures within the Articles of Confederation. Despite this more powerful national government, national interference and exertion of power over state legislative autonomy is historically viewed as only for an essential absolute, something that is “justified by some necessity, the special rather than the ordinary case” (Wechsler 1954). It is this principle that has kept Congress from making laws unified across the states, exactly what the framers had in mind. The division of authority between the national and state levels is essential to the American political system, both in the writing of legislation and the execution of it. One of the many political functions where this division of power gets murky is in legislation pertaining to the facilitation of national elections.

The boundary between the state and federal government on the issue of voting is made complicated constitutionally, specifically by the Fifteenth Amendment, which states that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. The Congress shall have power to enforce this article by appropriate legislation” (U.S. Const. Amend. XV). This gave explicit constitutional protections to the voting rights of African Americans, as well as giving Congress the authority to cross into what is considered a matter of state jurisdiction and pass legislation to facilitate fair elections. The fact that the amendment explicitly states that “any State” does not have the right to discriminate or disenfranchise creates the paradox that centers around many arguments on the lines of federalism (Davidson 1992). Where does the Tenth Amendment and the “rights” of states end and the supremacy of the United States government begin? What is necessary and proper? What legislation by Congress impedes too far into the ability of states to govern themselves? All of these questions come to a head time and time again,  most notably during the Civil Rights movement of the 60’s and with the passage of the Voting Rights Act of 1965.

The Voting Rights Act of 1965

Written under the administration of Lyndon B. Johnson, the Voting Rights Act of 1965 is known as being one of the most influential pieces of civil rights legislation. The law outlines how elections will proceed in order to ensure the reversal of the disenfranchisement that had occured for black Americans since the passage of the Fifteenth Amendment. The first sentence of the law states that it is “an act to enforce the fifteenth amendment to the Constitution of the United States, and for other purposes” (Voting Rights Act sect. 1 1965). It proceeds to describe in great detail how the voting rights would be protected in order to enforce what was not enforced by the ratification of the Fifteenth Amendment. It detailed what would be regulated by Congress in elections across the States, including the complete abolition of literacy tests, poll taxes, and requiring states and counties with a history of disenfranchisement to go through the federal government to make changes to their elections or districts. This was a huge blow to the autonomy of states for their elections, stripping away power from areas with historic racism and discrimination (Davidson 1992). The act continued to exert this check over states for decades, until the recent Supreme Court ruling in Shelby County v. Holder (2013), which removed that provision of the law.

The Voting Rights Act of 1965 is a federalism battleground. States believed that their right to facilitate elections their own way, specifically with the use of literacy tests and poll taxes, was protected under the Tenth Amendment. Congress, however, believed that the “necessary and proper” clause of the constitution allowed for them to write this law (Davidson 1992). In the case of the Voting Rights Act, Congress initially got its way, passing it with successful implementation. The struggle over which level has jurisdiction is still going, however, for major provisions of this law were struck down in in the Shelby County ruling. All of the difficulties within the history of this act allow for a close examination of the two key Constitutional arguments of division of powers by federalism: the Tenth Amendment versus the Necessary and Proper Clause.

The States or Congress: Who Has The Power?

The varying jurisdictions between Congress and the States are muddled and constantly changing. This confusion is embedded in the Constitution in the power dynamics between the Tenth Amendment and the Necessary and Proper Clause. The Tenth Amendment, which states that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” (U.S. Const. amend. X) is greatly coveted by the states, for it explicitly reserves all powers not given to the Federal government for the state governments. This was added to the Bill of Rights as a reminder that Congress would not hold all the power and that the states would retain autonomy over their laws. However, this amendment is weaker than many believe it to be. As stated in United States v. Darby, the Tenth Amendment is “but a truism” (1941). Rather than asserting the states possess new rights, it rather forces a closer examination of the enumerated powers of Congress and a reading between the lines of those powers (Lawson 2008). While the amendment captures the state-central sentiment that is historically prevalent in the United States, the inherent weakness of the Tenth Amendment allows for Congress to expand its powers into those powers “reserved” for the states.

Congress, however, has numerous enumerated rights listed in Article I, Section VIII of the Constitution, the last of which states that Congress “shall have the power… to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by the Constitution in the Government of the United States, or in any Department or Officer thereof” (U.S. Const. art. I ?§ VIII). Known as the “Necessary and Proper” clause, this section of the Constitution is considered one of the most powerful, and is the source of Congress’s extensive legislative power. The language of the clause is assertive, and so is the clause itself. Since the Supreme Court decision in McCulloch v. Maryland (1819), Congress has exercised broad authority over determining what is “necessary” and what laws can be created and enforced under the clause (Lawson 2008). This is how the Voting Rights Act of 1965 was passed and implemented nationally; Congress determined that it was “necessary” to enforce the Fifteenth Amendment through legislation that would remove some autonomy from the states.

        This is where the paradox of Federalism is revealed. The division of powers between the levels is fuzzy and up to interpretation, and this interpretation shifts with time and with the political mood of the nation. The Voting Rights Act of 1965 came at a time when the political environment was one of frustration at the abuses of states against the civil rights of their citizens, and a frustration at the way state law ignored the Fourteenth and Fifteenth Amendments (Beck 2002). The striking down of pieces of the legislation by Shelby County v. Holder shows how the pendulum swings back the other way, as the court progresses into a period of increased “states rights” sympathies and a limiting of Congress’s usage of the Necessary and Proper Clause. It should also be noted that this assertion of power is not just for the insurance of the rights of disenfranchised citizens; there is a personal motivation within Congress as well. The way states structure their elections will inevitably lead to how Congress and the President are elected; it has a direct effect on the federal level of the government. Any redistricting or disenfranchisement will affect how the federal government is run, which adds motivation for Congress to exert power over the states (Davidson 1992).

The New Literacy Test: Voter ID Laws

        The rise of new forms of voter suppression among certain states begins to raise the question of whether Congress will be stepping in again with legislation, or perhaps even a Constitutional amendment. Disenfranchisement resulting from state-run elections is a rampant problem that stems from the history of the United States. The modern adaptation of the literacy test as a tool for disenfranchising certain groups of voters has arrived in the form of voter ID laws. This “second great disenfranchisement” is described by David Schultz in his essay. The Myth of Voter Fraud, stating that “this time the tools are not literacy tests, poll taxes, or lynch mobs, but rather the use of photo IDs when voting” (2008).

Case studies of multiple states have found that voter ID laws caused significant decreases in voter turnout that outweigh the importance of “security” of elections, since voter fraud is empirically rare to non-existent (Shelley de Alth 2009). As voter ID laws expand, even states that do not have them in effect see their principles popping up in elections. Surveys from 2006 found that Southern, minority voters, especially those who were young or uneducated, were asked for ID when voting, even when in a state without voter ID laws (Shelley de Alth 2009). This study and others like it point towards the inherently discriminatory nature of voter ID laws. Since voter fraud is rare and hard to prove, the need for voter ID laws is not justified, and the statistics show that is decreases voter turnout and may be causing major disenfranchisement. Since the political mood is currently shifted away from a strong central government, the flexibility that comes with division of powers and federalisms structure will likely not allow for Congress to regulate elections through legislation until the mood shifts yet again.

Conclusions

The Constitution was written with the intention of leaving it open to interpretation. This flexibility allows for the United States to grow and shift with time, but it also creates confusion, uncertainty, and debate. The sanctity of elections in our perception of democracy is essential; the public must trust that elections are free and fair for the system to work as intended. This necessity is what allows Congress to reach into the jurisdiction of the states using the Necessary and Proper Clause of the Constitution. Since democracy and elections are vital, easily tampered with, and constitutionally protected, the national government must reach into the powers reserved for the states to ensure every citizen is given their right to have their voice heard, which was the purpose of the Voting Rights Act of 1965 and other similar pieces of legislation. The American pendulum, the way our ideas and political mood seem to swing from one extreme to the other, is constantly in motion. That motion effects how the Constitution will be interpreted in the years to come. While uncertain and tentative, this is what has made the United States into what it is: a nation that can change, slowly but surely.

References

1. Baude, William. “State Regulation and the Necessary and Proper Clause,” Case Western Reserve Law Review 65, no. 3 (Spring 2015): 513-540.
2. Davidson, Chandler. “The Voting Rights Act: A Brief History.” Controversies in Minority Voting 7 (1992).
3. Lawson, Gary, and Seigel S. Neil. “Interpretation Necessary and Proper Clause.” National Constitution Center. Accessed December 07, 2018.
4. Lawson, Gary. “A Truism with Attitude: The Tenth Amendment in a Constitutional Context.” Notre Dame Law Review 83, no. 2 (2008).
5. Shelley de Alth. “ID at the Polls: Assessing the Impact of Recent State Voter ID Laws on Voter Turnout,” Harvard Law & Policy Review 3, no. 1 (Winter 2009): 185-202.
6. Schultz, David. “Less than Fundamental: The Myth of Voter Fraud and the Coming of the Second Great Disenfranchisement,” William Mitchell Law Review 34, no. 2 (2008): 483-532.
7. United States. Civil Rights Acts of 1957, 1960, 1964, 1968, and Voting Rights Act of 1965. Washington :U.S. Govt. Print. Off., 1969.
8. S. Const., amend. X.
9. S. Const., art. I ?§ VIII.
10. Wechsler, Herbert. “The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government.” Vol. 54, no. 4, 1954, pp. 543??“560.

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