You know, I keep hearing and reading how the fixing the election process is going to be so difficult because running elections is a state matter. First I saw this in
this article by Rick Perstein, entitled "The Constitutional Roadblock to Efforts to Fix Federal Elections," where he states:
Here’s a dull two-by-four to the head to all of you hoping Washington can fix the voting problem. It is one of the best kept secrets in our political life: There is no federal right to vote for Congress to guarantee. I’d be glad to be corrected, but as best I can tell, that means that technically, in almost every case, a state can make it as hard as it wants for its citizens to vote, and there’s practically nothing DC can do about it.
Then there's
this in Charlie Pierce's blog last night, in response to the Presidents proposal to set up a bi-partisan commission to study what to do about elections:
The commission is a bad idea because this isn't a Washington problem to be solved. This is a problem out in the states and the only real solutions are either to stop electing Republicans who pass these laws,
All I can say is poppycock. Congress has the power to fix federal elections. All it has to do is exercise it.
There are two provisions in the Constitution that give Congress this power: First, Article I, Section 4 provides:
The Times, Places and Manner of holding Elections for Senators aned Representatives, shall be prescribed in each State by the Legislature therof, but the Congress may at any time by Law make or alter such Regulations, except as to places for chusing Senators.
This provision clearly gives Congress the power to override state laws when it comes to electing senators and representatives. The last clause regarding "places for chusing Senators" is clearly anachronistic, since it pre-dates the 17th Amendment, which provided for the popular election of senators (previously senators were chosen by the state legislatures).
The second provision in the Constitution that can be used to regulate elections is the Article I, Section 5, which states:
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.
This means that a house of Congress can set up a rule that a person is not qualified for office unless elected pursuant to a process approved by that house.
I would argue that these two provisions give Congress the power, if it so chose, to set up an entirely separate election process for electing representatives and senators. And use of that process by the states would be mandatory - if as state refused to follow the process, it's representatives and senators would be disqualified from holding office.
Even if it choses not to set up its own election infrastructure, Congress can mandate standards for election that, if not met by a state, would result in the disqualification of the representatives and senators from that state from holding office.
In other words, under these provisions in the Constitution, Congress clearly has the right to tell a state that if you don't have clean elections, you lose your representation in Congress.
Heck, I would argue Congress could set up a system of complete public financing of elections, banning all political contributions, and say anyone who violates these rules is disqualified from serving in Congress. And the Supreme Court could do nothing about it. This is not a question of free speech. It is a question of Congress' right to set the rules for who is qualified to hold office.
I would go so far as to say that Congress can also mandate that each state follows the same rules for allocating electoral votes in the Presidential election. If you don't follow the federal rules, your elective representatives are disqualified from serving in Congress
Congress clearly has the power to do this.
It just won't.
