After the fiasco of the 2020 election, I was not surprised when a bill claiming to fix the problem was introduced in Congress. H.R. 1, titled the “For the People Act of 2021”, is actually an attempt to remove the states from controlling the voting process, centralize power in Washington, D.C., and open even more opportunities for fraud and malfeasance in future elections. In other words, if there was truth in legislative advertising, this bill would be called the “Corruption of Future Elections Act of 2021”.
If we’re not to judge a book by its cover, then we shouldn’t judge legislation by its title either, or even by the parody title I’ve given it. If we want to see if this legislation is valid, we need only start with the beginning.
Congress finds that the Constitution of the United States grants explicit and broad authority to protect the right to vote, to regulate elections for Federal office, and to defend the Nation’s democratic process. Congress enacts the “For the People Act of 2021” pursuant to this broad authority, including but not limited to the following:
H.R. 1 – “For the People Act of 2021”
Congress is claiming the power to regulate elections for federal office. As is often the case, a lie usually includes a little bit of truth.
(1) Congress finds that it has broad authority to regulate the time, place, and manner of congressional elections under the Elections Clause of the Constitution, article I, section 4, clause 1. The Supreme Court has affirmed that the “substantive scope” of the Elections Clause is “broad”; that “Times, Places, and Manner” are “comprehensive words which embrace authority to provide for a complete code for congressional elections”; and “[t]he power of Congress over the Times, Places and Manner of congressional elections is paramount, and may be exercised at any time, and to any extent which it deems expedient; and so far as it is exercised, and no farther, the regulations effected supersede those of the State which are inconsistent therewith”.
H.R. 1 – “For the People Act of 2021”
Is that what the Constitution actually says?
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
U.S. Constitution, Article I, Section 4, Clause 1
Actually, the Constitution states the times, places, and manner of holding election are to be prescribed by the legislature of each state. Yes, Congress can alter such regulations, but contrary to the opinion of the Supreme Court, this power may not “be exercised at any time, and to any extent which it deems expedient;”
First of all, Article I, Section 4, Clause 1 only deals with the election of Representatives and Senators; it does not deal with the election of Presidential electors. Second, Congress cannot change the place of choosing Senators. And lastly, Congress can only alter existing regulations. They have not been granted authority to establish the times, places, and manner of holding elections.
Among other things, Congress finds that the Elections Clause was intended to “vindicate the people’s right to equality of representation in the House”.
H.R. 1 – “For the People Act of 2021”
More accurately, Congress has made up the idea that the Elections Clause was intended to “vindicate the people’s right to equality of representation in the House“, since it says no such thing. The Elections Clause clearly states that the power to run elections for congressional offices was to be controlled primarily by the states, not the federal government.
(2) Congress also finds that it has both the authority and responsibility, as the legislative body for the United States, to fulfill the promise of article IV, section 4, of the Constitution, which states: “The United States shall guarantee to every State in this Union a Republican Form of Government[.]”. Congress finds that its authority and responsibility to enforce the Guarantee Clause is particularly strong given that Federal courts have not enforced this clause because they understood that its enforcement is committed to Congress by the Constitution.
H.R. 1 – “For the People Act of 2021”
Just how would Congress be guaranteeing the states a republican form of government (where the people exercise their sovereign powers through their elected representatives), by attempting to deprive them of the sovereign power to determine how to conduct their elections? You cannot protect the people’s rights by taking them away.
(3) (A) Congress also finds that it has broad authority pursuant to section 5 of the Fourteenth Amendment to legislate to enforce the provisions of the Fourteenth Amendment, including its protections of the right to vote and the democratic process.
H.R. 1 – “For the People Act of 2021”
Yes, section 5 of the Fourteenth Amendment grants to Congress the power to enforce that amendment by law. But what does the Fourteenth Amendment actually protect?
(B) Section 1 of the Fourteenth Amendment protects the fundamental right to vote, which is “of the most fundamental significance under our constitutional structure”. Ill. Bd. of Election v. Socialist Workers Party, … Section 2 of the Fourteenth Amendment also protects the right to vote, granting Congress additional authority to reduce a State’s representation in Congress when the right to vote is denied.
H.R. 1 – “For the People Act of 2021”
So what do sections 1 and 2 of the Fourteenth Amendment actually say?
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
U.S. Constitution, Amendment XIV, Section 1
It appears that Section 1 of the Fourteenth Amendment doesn’t mention the right to vote. Yes, states are not allowed to abridge the privileges or immunities of citizens of the United States, including the right to vote, but Congress isn’t correcting a state abridging the rights of their citizens. It’s Congress that’s abridging the rights of the citizens of the states to determine how to conduct their elections.
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
U.S. Constitution, Amendment XIV, Section 2
Again, Congress isn’t writing legislation to deal with a state denying the right to vote to someone over the age of 21 (later amended to the age of 18), they are claiming the authority to determine the manner of conducting elections. That’s something not granted by Article I, Section 4 of the Constitution.
(C) As a result, Congress finds that it has the authority pursuant to section 5 of the Fourteenth Amendment to protect the right to vote. Congress also finds that States and localities have eroded access to the right to vote through restrictions on the right to vote including excessively onerous voter identification requirements, burdensome voter registration procedures, voter purges, limited and unequal access to voting by mail, polling place closures, unequal distribution of election resources, and other impediments.
H.R. 1 – “For the People Act of 2021”
This isn’t acceptable, because the Fourteenth Amendment doesn’t grant the federal government the general power to protect the right to vote, but only to insure that laws are applied equally to all citizens and to punish states that deny the right to vote based on age. Furthermore, it appears parts of this legislation would have the effect of allowing those who have lost their right to vote as punishment for crimes committed to vote anyway, countermanding Section 2 of the amendment.
(D) Congress also finds that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise”. Reynolds v. Sims, 377 U.S. 533, 555 (1964). Congress finds that the right of suffrage has been so diluted and debased by means of gerrymandering of districts. Congress finds that it has authority pursuant to section 5 of the Fourteenth Amendment to remedy this debasement.
H.R. 1 – “For the People Act of 2021”
Once again, Congress is claiming a power in the Fourteenth Amendment that does not exist in the language. There is nothing in that amendment about redistricting, gerrymandering, or the dilution and debasement of the effectiveness of one’s right to vote. While I am not in favor of political gerrymandering, Congress is not in the position to overturn the expressed will of the people through their elected state representatives simply because they don’t like it. Does anyone think that gerrymandering out of Washington would be any less corrupt than that out of your state house?
(4) (A) Congress also finds that it has authority to legislate to eliminate racial discrimination in voting and the democratic process pursuant to both section 5 of the Fourteenth Amendment, which grants equal protection of the laws, and section 2 of the Fifteenth Amendment, which explicitly bars denial or abridgment of the right to vote on account of race, color, or previous condition of servitude.
H.R. 1 – “For the People Act of 2021”
I wonder if the people who write legislation read the Constitution they are quoting? Section 5 of the Fourteenth Amendment and Section 2 of the Fifteenth Amendment simply state that Congress has the authority to enforce these amendments via legislation.
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
U.S. Constitution, Amendment XIV
The Congress shall have the power to enforce this article by appropriate legislation.
U.S. Constitution, Amendment XV
Section 1 of the Fifteenth Amendment does prohibit the denial or abridgment of the right to vote on account of race, color, or previous condition of servitude, but as I understand it, Congress has already passed legislation to enforce these amendments. If that legislation is not being enforced by the Executive branch, why is Congress attacking state’s rights rather than acting as a check on that branch of the federal government?
(B) Congress finds that racial discrimination in access to voting and the political process persists. Voting restrictions, redistricting, and other electoral practices and processes continue to disproportionately impact communities of color in the United States and do so as a result of both intentional racial discrimination, structural racism, and the ongoing structural socioeconomic effects of historical racial discrimination.
H.R. 1 – “For the People Act of 2021”
Congress can find that the moon is made of cheese, but that does not make it so. Congress is claiming that a person’s ability to vote is impacted by both intention and structural racism. Since it’s illegal to deny or abridge the right to vote based on race, why isn’t Congress working to have those laws enforced? Is there intentional and structural racism in our election processes?
(C) Recent elections and studies have shown that minority communities wait longer in lines to vote, are more likely to have their mail ballots rejected, continue to face intimidation at the polls, are more likely to be disenfranchised by voter purges, and are disproportionately burdened by voter identification and other voter restrictions. Research shows that communities of color are more likely to face nearly every barrier to voting than their white counterparts.
H.R. 1 – “For the People Act of 2021”
This rationale is an example of the fallacy of correlation meaning causation. The question shouldn’t be, ‘Do minority communities wait in longer lines?’ Instead, it should be, ‘Why do they?’ Is it because many minority communities live in large population centers, which due to the density of the population tend to have longer lines for everything? Because when I vote, I don’t see one line for whites and another for minorities. Instead, whites in those communities have to wait just as long as people of color. So is it a racist system that causes the long lines or is it the actions of minorities who desire to live in ethic communities in large population centers? Maybe it’s the racist view of many Congressmen who believe that any disparity MUST be because of racism?
What about the rates of ballot rejection and intimidation? Again, if this is happening why aren’t the laws being enforced? And if someone is voting in a minority community, isn’t it likely that many of these alleged acts of racism are being committed by minority workers at the polls? When video surfaced in 2008 of Black Panthers intimidating voters at polling stations, wasn’t that racist?
(D) Congress finds that racial disparities in disenfranchisement due to past felony convictions is particularly stark. In 2020, according to the Sentencing Project, an estimated 5,200,000 Americans could not vote due to a felony conviction. One in 16 African Americans of voting age is disenfranchised, a rate 3.7 times greater than that of non-African Americans. In seven States–Alabama, Florida, Kentucky, Mississippi, Tennessee, Virginia, and Wyoming–more than one in seven African Americans is disenfranchised, twice the national average for African Americans. Congress finds that felony disenfranchisement was one of the tools of intentional racial discrimination during the Jim Crow era. Congress further finds that current racial disparities in felony disenfranchisement are linked to this history of voter suppression, structural racism in the criminal justice system, and ongoing effects of historical discrimination.
H.R. 1 – “For the People Act of 2021”
This argument refutes itself. The opening sentence states quite clearly that these people were not “disenfranchised” due to their color, but due to conviction of a felony. Something specifically allowed by the Fourteenth Amendment:
But when the right to vote at any election … or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
U.S. Constitution, Amendment XIV, Section 2
Are minorities convicted of felonies at a higher rate than whites? There is evidence of that. But is that because of racist juries or the fact that minorities are committing felonies at a higher rate than others? And are they committing felonies at a higher rate because of their race or because of their tendency to live in large population centers? I am not an expert about that, so I will leave that discussion to those who are. However, one thing I do know is that nothing in this legislation will change those felony convictions or the rate at which they happen.
(5) (A) Congress finds that it further has the power to protect the right to vote from denial or abridgment on account of sex, age, or ability to pay a poll tax or other tax pursuant to the Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments.
(B) Congress finds that electoral practices including voting rights restoration conditions for people with convictions, voter identification requirements, and other restrictions to the franchise burden voters on account of their ability to pay.
(C) Congress further finds that electoral practices including voting restrictions related to college campuses, age restrictions on mail voting, and similar practices burden the right to vote on account of age.
H.R. 1 – “For the People Act of 2021”
Yes, Congress has the power to pass legislation to protect the right to vote from discrimination based on sex, age, or ability to pay taxes. While rights restoration may be impacted by the ability to pay a lawyer, it’s not based on the ability to pay a tax. Furthermore, this is not someone being denied the right to vote for not being able to pay taxes, this is someone attempting to overturn the punishment they received for being convicted of a felony. Even the language a part B of this section of the legislation does not suggest that people are being denied the right to vote for not paying taxes. And while voter identification laws are often slandered with the “poll tax” argument, I know of no locality that does not offer free voter identification options. In other words, no tax required to vote.
Congress would have a point about college campuses if only young people were impacted. And if there are states with laws that restrict mail-in voting above the age of 18, then the laws Congress has already passed should be enforced.
Conclusion
So far, I’ve only covered the shame that Congress has put forth for their authority to pass such legislation. I haven’t gotten into Congress’ attempt to dictate to states how someone registers to vote, if they even need to register, and even the attempt to coerce the states to register those ineligible to vote. Congress is attempting to restore democracy to a republic. That’s like restoring water with oil; it’s not the same thing. They’re even trying to dictate to states how to deal with certain emergencies as part of this legislation.
In another attempt to sneak a bitter pill in with what they claim is sweet legislation, there’s even language to encourage statehood for Washington, D.C., which is a violation of Article I, Section 8, Clause 16 of the Constitution:
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States,
U.S. Constitution – Article I, Section 8, Clause 16
Are there some good things in this legislation? Yes, but very little. This is definitely a time to throw the baby out with the bath water. Maybe if Congress would bother to write legislation within their powers, we could get some of these issues fixed. Sadly, it appears the days of the people’s representatives following the rules we’ve established for them appear to be in our past. That is, unless and until, the American people return their Congress to its rightful place.
Now more than ever before, the people are responsible for the character of their Congress. If that body be ignorant, reckless and corrupt, it is because the people tolerate ignorance, recklessness and corruption. If it be intelligent, brave and pure, it is because the people demand these high qualities to represent them in the national legislature … If the next centennial does not find us a great nation…it will be because those who represent the enterprise, the culture, and the morality of the nation do not aid in controlling the political forces.
James A. Garfield – United States Centennial
