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The Capitol riots of January 6 are the gift that keeps on giving to the Democrats’ drive to pass a number of new expansive pieces of legislation. At least in the short term. For now, in the realm of elections, Democrats are claiming state control over election methods led directly to the riot. The riot, it is claimed, was fueled by the Trump administration’s claims that the election was not conducted in a fair manner.
The solution? More federal control. If and when federal officials can dictate and oversee how elections are conducted in every corner of the nation, then we’ll know everything was done in a free and impartial manner. According to the AP:
Democrats, asserting constitutional authority to set the time, place and manner of federal elections, want national rules they say would make voting more uniform, accessible and fair across the nation. The bill would mandate early voting, same-day registration and other long-sought reforms that Republicans reject as federal overreach.
This will all be fixed by new legislation, HR 1. Of course, it is never explained why federal bureaucrats and regulators are less corrupt or more efficient or less prone to bias than state-level officials. The ideological reasoning behind HR 1 is just a retread of the usual Washington view, which assumes that no one outside the Beltway can possibly hope to do anything right without federal oversight. (For the more cynical among us, of course, it must also be pointed out that Democrats support the bill because they think it will get them more votes.)
Yet, this is the zeitgeist we live under: Americans can’t be trusted to run their state governments competently, so it’s up to the federal regulators in office buildings hundreds or thousands of miles away to determine the best way to do things.
Naturally, no one in Washington or in the federal courts cares that this sort of thing contradicts more than two centuries of real-world practice in conducting elections. What matters is that the nation continue to move toward putting every institution, process, law, and custom under the oversight of federal officials.
The Member States Have Historically Controlled Elections
Most Americans probably assume that elections are now and always have been, constitutionally, the domain of the federal government. But, this has never been the case. The Federal Election Commission wasn’t even created until 1975, and even now, the FEC’s power is limited primarily to regulating campaign finance, and not elections.
The federal takeover of elections, to the extent that it has been successful, has primarily been carried out by the courts, with the Supreme Court and other federal courts handing down decisions to states in regard to how elections must be conducted.
Historically, however, states have controlled voting requirements and systems precisely because the United States was intended to be a union of independent states.
This was explicit in the first constitution of 1776 (i.e., the so-called Articles of Confederation) but continued in a watered-down form with the new constitution in 1788. In terms of congressional representation, states were to elect their representatives in a manner chosen by the state, with state control over who could vote. The member states of the union were to be treated as truly independent states, united in policy for only a handful of purposes such as foreign policy and trade agreements.
For example, there is no particular reason why all members of NATO must select their lawmakers in a similar way. Similarly, it is not necessary for all member states of the US to have “uniform” election systems.
Indeed, this sort of thinking continued to be reflected in methods of selecting US senators until the Seventeenth Amendment. Although many think that the Constitution mandated that state legislatures appoint US senators prior to the Seventeenth Amendment, the fact is states employed a variety of methods in selecting US senators prior to the change. While the US Constitution says the state legislatures shall elect the US senators, it does not say how that should be done. For example, must most candidates for US Senate receive a majority of legislative votes or will a plurality do? Can those senators be recalled by the legislature? The US Constitution is silent on this. Moreover, in practice, states were free to pass their own state laws creating popular elections for senators that were then binding on members of the state legislature.
In other words, until 1913, the states themselves were to determine how their delegations in the US Senate were elected and by whom.
Not surprisingly, states have implemented a variety of different policies at different times when it comes to voting and elections.
Indeed, various states engaged in a wide variety of electoral policies, with most coming down on the side of liberalization. For example, as the nineteenth century entered the Jacksonian era, states greatly expanded who could vote. By 1845, nearly all states had removed the land-ownership requirement for voting, resulting in near-universal suffrage for nonslave males.
During the nineteenth century, many Western and Midwestern states also had very liberal laws when it came to what is called “declarant alien voting,” by which twenty-two states and territories extended the vote to noncitizens. By doing so, the states also—in effect—lowered the bar for citizenship while encouraging immigration into those states.
Western states also were among the first to extend the franchise to women. Wyoming was the first in 1869, a full fifty years before the federal government followed suit.
Montana was the first state to elect a woman to Congress—Jeanette Rankin—before the adoption of the Nineteenth Amendment federalizing policy on women’s suffrage. Today, women comprise a higher percentage of representatives in state legislatures than in the US Congress. (Colorado has the highest percentage, with 42 percent of General Assembly members being women.)
All the while, the federal government had little role in dictating to states how elections should be conducted or whom should be granted the right to vote.
The Gradual Federal Takeover of Elections
Over time, however, the federal government has increasingly intervened in local election prerogatives.
The largest expansion of federal control over state election laws arrived with the Voting Rights Act of 1965. The act sought to end local efforts to curtail voting by nonwhites in some Southern states, specifically through literacy tests and related measures.
Yet, by 1970, federal provisions on literacy tests had been expanded to all fifty states, regardless of the purpose or motivation behind such measures.
Federal control over elections has continued to expand. Perhaps most damaging among these new measures are federal court rulings preventing state governments from requiring that voters provide proof of identity in order to vote.
In the United States, one can’t so much as drive down the street or purchase cough syrup without government-issued identification. Yet federal courts consider it beyond the pale that voters confirm they are who they say they are.
Federal officials have also suggested expanding federal control over elections in the name of combating ”hacking” by Russians and other foreigners. Following the 2016 elections, pundits and politicians suggested that federal agencies be put in charge of ”securing” voting data.
Now, of course, we have the drive to greatly expand federal control in the form of congressional Democrats’ HR 1. It’s just another nail in the coffin of American federalism.
