A VOTING RIGHTS BILL ? YES, BUT NOT THIS ONE

Congress Schumer

Demanding Federal rule for State elections ? Here’s Senate Majority Leader Chuck Schumer, D-N.Y., speaking during a news conference at the Capitol in Washington, Tuesday, March 16, 2021. (Samuel Corum/Pool via AP)

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Before the Congress these days is a large chunk of Federal legislation concerning voting laws in the States. Unhappily, I must oppose most of what is proposed. Per our Constitution, elections are empowered by the States united by it. Federal power cannot impose or interfere with elections in the several States except pursuant to the 14th Amendment : all State election laws — as with all State laws of any kind — must give equal protection to all who those laws obligate.

With these sanctions in mind, let me set forth for you what the proposed Federal voting bill seeks to require or forbid :

( 1 )

A set of national voter registration and mail-in voting standards: H.R. 1 requires the chief election official in each state — the secretary of state in most — to establish an automatic voter-registration system that gathers individuals’ information from government databases and registers them unless they intentionally opt out.

And it says it’s the government’s responsibility to keep that information up-to-date, based on information from agencies like state motor vehicle administrations, agencies that receive money from Social Security or the Affordable Care Act, the justice system, and federal agencies including the Department of Veterans Affairs, the Department of Defense, the Social Security Administration and others.

There is simply no authority given in the Constitution by which Congress can impose registration procedures upon a State, nor order a State policy. One encourages citizens to vote, of course: but it’s entirely a State matter how that encouraging becomes a legal duty. This is especially true for Federal elections. The office may be Federal, but the election of Federal office candidates is entirely a State matter, with that one proviso, equal protection. If a State pursues a registration policy that asks potential registrants to take action — to bestir him or herself — I se no reason why that fails approval. In America there is NO DUTY to vote; it is an entirely voluntary matter, and a State is fully justified in requiring potential voters to get out of bed and go to where registration can be done. Indeed, I think it preferable to seek an active electorate. Participation is the essence of a republican system.

( 2 )

Nonpartisan redistricting commissions: In an attempt to get rid of gerrymandering, the law would require each state to use independent commissions (not made up of lawmakers) to approve newly drawn congressional districts. The commissions would each include five Democrats, five Republicans and five independents, requiring bipartisan approval for districts to be allowed.

“Regardless of whether it’s a red state or a blue state, we are seeing significant manipulation in the legislative redrawing of districts,” said Tom Lopach, CEO of the nonpartisan Voter Participation Center, which has advocated for the bill. “H.R. 1 presents an opportunity for everyone to get onboard with independent, unbiased and balanced redistricting that frankly is good government.”

Everybody finds fault with State legislatures drawing Congressional district lines, but how can it possibly be better for those districts to be drawn up by anyone other than people who are elected by the voters ? The last thing we should want is for ELECTION districts to be drawn by persons not elected and thus not answerable to an electorate. And if the elected legislature does draw districts which violate the Equal Protection principle the Federal Courts are there to overturn such drawings.

Number ( 2 ) cannot stand.

( 3 )

Big changes in campaign finance law: H.R. 1 would require super PACs and “dark money” groups to disclose their donors publicly, a step Democrats say would eliminate one of the most opaque parts of the U.S. election process. It would establish a public funding match for small-dollar donations, financed by a fee on corporations and banks paying civil or criminal penalties.

This provision appears on its face a worthy reform.

( 4 )

New ethics rules for public servants: The bill would create the first ethics code for Supreme Court justices, to be created within a year of the bill’s passage.

It would also stop a controversial practice in Congress: When a member of Congress settles a sexual harassment or discrimination lawsuit, in certain cases they can use taxpayer money to settle. H.R. 1 would prevent taxpayer money from being used for such settlements.

These have nothing to do with voting. I absolutely oppose the former. Congress has no business telling Supreme Court Justices how to do their jobs, other than jurisdiction, which powers are enumerated in the Constitution but can be expanded by Federal laws. As for the latter provision, that’s a matter for Congress to do or not do within its rules setting power. I see no reason whatsoever why it should be pasted into a voting rights bill. (I also oppose it. It would encourage vicarious accusation of the sort now virulent in the social media environ we all are targets of, but as it is Congress’s business, so be it if they want it.)

( 5 )

A requirement that presidential candidates disclose their tax returns: This one is a little more relevant to recent events. Democrats have been frustrated for years that Trump never released his tax returns, and H.R. 1 would require it by law.

This, again, has nothing to do with voting rights. It also demands that candidates lose the privacy protections given to all of us by laws and thus violates the 14th Amendment’s Equal Protection guarantee.

All in all, the Democrats’ voting rights bill fails to improve voting and does much to demean it. There are proposals now in debate, in several States, which would hamper the registration to vote process and squeeze the available hours of voting as well as methods. Limiting voting days and hours almost never looks good, but let us remember hat until recently, voting could be done only on voting day. Early voting was a convenience reform, not a Constitutional requirement . The same was true of absentee voting, although here physical necessity required some provision be made.

Early voting is a potentially bad decision. What does the early voter do about events that happen to candidacies after a voter votes early ?

I personally would get rid of early voting entirely and instead make election day a Federal holiday.

As for voting by mail, if States want to have it, that’s on them. As long as Equal Protection is accorded, that’s an end of the matter as far as the Federals are empowered.

Lastly, the Democrats’ Federal bill, like many State legislative bills proposed by Republicans, doesn’t even disguise being proposed for strictly partisan advantage. Its bad enough that we have political parties, to advantage zealotry over common sense and one side’s fantasies over another side’s fears. the last thing our electeds should do is to sell us the stink of such merely partisan — and monumentally un-Constitutional — fish bait.

— Mike Freedberg / Here and Sphere

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