The New Voting Rights Push: A Progressive Wet Dream

This piece originally appeared in the Wall Street Journal and at WSJ.com Friday, 12 June 2015 under the title "Hillary's Unlawful Plan to Overrule Voter-ID Laws" and the byline David B. Rivkin and Elizabeth Price Foley

Automatic registration at 18, letting felons vote — it's all part of an unconstitutional progressive dream.

David B. RivkinElizabeth Price Foley

Declaring that Republican-controlled states have "systematically and deliberately" tried to "disempower and disenfranchise" voters, Hillary Clinton has called for a sweeping expansion of federal involvement in elections. In a speech last week in Houston, laying out what promises to be a major campaign theme, Mrs. Clinton called for automatic voter registration at age 18, a 20-day early-voting period and a maximum 30-minute wait period to vote.

She has also endorsed the idea of a federal law permitting convicted felons to vote and allowing individuals, such as students, who reside in one state to vote in another. All of these federal mandates would augment and make more onerous an unconstitutional election-regulating federal statute known as the “Motor Voter” law enacted during her husband’s White House tenure.

A federal takeover of election laws — and rolling back state voter-ID laws intended to discourage election fraud — is a high priority for progressives. The billionaire financier George Soros reportedly has pledged $5 million to bankroll legal challenges to laws like those that Mrs. Clinton decries. Part of the effort is intended simply to galvanize the Democratic base by stoking a sense of grievance, but the strategy should be taken seriously — and rebutted as unconstitutional.

Voting the way it should be

The Constitution gives Congress the power to regulate federal elections, not state ones. It also distinguishes between the regulation of presidential versus congressional elections. Specifically, under Article I, Section 4 — the Elections Clause — while the states have primary responsibility for regulating congressional elections, Congress can pre-empt their rules by regulating "times, places and manner of holding Elections for Senators and Representatives", except that Congress cannot regulate the "places of chusing [sic] Senators".

For presidential elections, the Constitution restricts Congress's power and grants states an even more robust role — which is why the president is elected by the votes of the state-driven Electoral College, rather than directly by the people. Accordingly, Article II, Section 1 of the Constitution permits congressional regulation only of "the time of chusing the Electors, and the Day on which they shall give their Votes".

With this constitutional backdrop, Mrs. Clinton's proposals as applied to presidential elections would be entirely unconstitutional. They go well beyond regulating the time of choosing the electors for the Electoral College and the date for voting.

Christie Nails It

As applied to congressional elections, Mrs. Clinton's proposals fare no better. Her goal of extending voter qualification to felons and transient individuals such as college students is patently unconstitutional. The Constitution establishes some categorical voting entitlements, primarily relating to gender (the 19th Amendment), age (the 26th Amendment) and race (the 15th Amendment). The Constitution doesn’t grant Congress the authority to determine voter qualifications. As the Supreme Court said in Arizona v. Inter Tribal Council of Arizona (2013), "the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them".

Mrs. Clinton's proposals regarding voter registration, 20-day early voting periods, and maximum 30-minute wait times are also constitutionally wanting. Congress's Election Clause authority to regulate the "time, place and manner" of congressional elections was meant to allow regulation of how those elections are carried out. But it was not intended to give Congress carte blanche to regulate all aspects of voting. The clause, particularly given its capacious word "manner", must — like all other constitutional provisions — have a meaningful limiting principle.

That principle is in the Supreme Court's federalism-protecting anti-commandeering and anti-coercion doctrines. In New York v. U.S. (1992) the court declared that Congress cannot "commandeer" state legislatures "to enact or administer a federal regulatory program". In Printz v. U.S. (1997) the court expanded the principle to state executive officials, invalidating federal gun laws requiring state and local law enforcement officers to run criminal-background checks.

Congress can use its Elections Clause power to pre-empt state laws, but its pre-emptive authority should be restrained by the anti-commandeering principle. Congress cannot conscript state officials to execute federal congressional-election reforms, but instead must use federal officials to do so.

One year after New York v. U.S., Congress enacted the 1993 Motor Voter law, imposing numerous obligations on states, including requiring that voter registration be allowed upon applying for a driver’s license and by mail, and designating state welfare agencies as voter-registration locations. Illinois, California and Michigan challenged the law, asserting that it violated New York's anti-commandeering principle. All three states lost in the lower courts, but none of the decisions was reviewed by the Supreme Court.

The lower courts concluded that, under the Elections Clause, Congress may "make or alter" state laws for holding elections and thus, inevitably, may commandeer states when exercising this power. But the scope of the Supreme Court's incipient anti-commandeering doctrine was not fully developed. It wasn't until Printz in 1997 that the anti-commandeering doctrine's centrality to federalism became clear.

Vote for me rightThat federalism limits federal power generally was confirmed by NFIB v. Sebelius(2012), when the court invalidated ObamaCare's Medicaid expansion because it coerced states. NFIB confirmed that while Congress can incentivize states' adoption of election laws such as those Mrs. Clinton proposes, it cannot constitutionally withhold large amounts of funds from states to coerce the laws' adoption.

Democrats are seeking to overturn voting laws in the presidential battleground states of North Carolina, Ohio and Wisconsin. The Associated Press reported on June 4 that one of the lawyers involved in the effort is Marc Elias, who is also general counsel for Mrs. Clinton's campaign.

Republicans have been muted in their response to Mrs. Clinton and the attempt to expand federal power over elections and undermine states' anti-fraud election laws. Such reticence is a mistake. They would have the Constitution and legal precedent on their side in rebutting her proposals — as they would if they launched a fresh legal challenge to the Motor Voter law.

Mr. Rivkin, a constitutional litigator, served in the Justice Department and the White House Counsel's Office in the Reagan and George H.W. Bush administrations. Ms. Foley is a constitutional law professor at Florida International University College of Law.

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