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Congress cannot regulate voting in presidential elections

By Steven Gow Calabresi for RealClearPolitics

There has been a heated debate in Congress on HR 1, a House bill that ignores state election laws by mandating a number of bad ideas, including an automatic right to vote; the ability to download ballot papers at unseen ballot boxes; and limiting the ability of members of both parties to monitor the counting of votes.

I am against this bill because 1) if you need to show a state ID or driver’s license to fly on an airplane, you must show one to vote; 2) it gets rid of the secret ballot by encouraging campaigners to knock on people’s doors, getting them to vote with the campaigner watching – and with the campaigner then offering to cast the ballot; and 3) representatives of both parties should be able to see how votes are counted. I support absentee ballots, but only when a voter gives a reason why he needs one.

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We have chosen to deviate from some of these principles in the 2020 national election due to the COVID-19 epidemic. Now that that epidemic is largely under control, we must return to secret ballot papers cast at the ballot box, by voters with a state ID, or by absentee ballot requested in advance (for good reason) and accompanied by a state ID.

Democracy depends on the elimination of voting fraud, and therefore HR 1 is dangerous and undemocratic legislation.

But even if this measure were wrongly passed into law, it would only apply to voting rights in congressional elections – not voting rights in presidential or state elections. Congress has no power to regulate those elections.

Congressional power to regulate congressional elections comes from Article I, Section 4, of the Constitution, which states: “The times, places and manner of holding elections for senators and representatives shall be prohibited in each state by its legislature; but Congress may at any time by law make or amend such Regulations, except as to the Places where Senators are charged. ”

There is nothing in this clause that allows Congress to regulate the election of presidential voters or civil servants. Any federal law that pretends to regulate presidential or state elections will be unconstitutional and therefore void and void.

Article II, Section 1, states that: “Each State shall, in such manner as the Legislature may order it, appoint a Number of Voters” which together constitute the Electoral College, elected by the President. For years, many state legislators have elected their state’s presidential voters themselves, but a healthy and dignified tradition has emerged since at least 1830 of states awarding all their electoral votes to the winner of each state’s popular presidential election, with the voting rules for it. pre-election specified by the state legislature.

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Congress could possibly, under the Essential and Proper Clause, require state legislators to draft the rules for electing their presidential voters before the election. Congress may also, as the Electoral Code pretends to do, set dates for the electoral roll in the states, and for the counting of those electoral votes by Congress.

But Congress has no power to tell a state who is eligible to vote in a presidential or state election. (There are many scholars who think that the Electoral Code is unconstitutional.)

Nor can Congress prevent the states from returning to the situation at the founding of the country where some state presidential voters are elected by state legislators. And Congress could not tell Maine and Nebraska to elect their presidential voters in general, nor could they tell state lawmakers that they should cast a ballot for the winner of each state’s congressional district.

In my opinion, it would be a very bad idea for state legislators to elect presidential voters rather than hold a popular vote for president, but it would not be unconstitutional.

What would be clearly unconstitutional, however, is for Congress to draft national voting rules on who is eligible to vote in presidential or state elections. The Constitution leaves that power exclusively to the states.

Steven Gow Calabresi is the Clayton J. and Henry R. Barber Professor at Northwestern University’s Pritzker School of Law.

Syndicated with permission from RealClearWire.

The opinions expressed by contributors and / or content partners are their own and do not necessarily reflect the views of The Political Insider.

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