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A New Congress Could Quickly Reform Election Law

Thomas Geoghegan
·9 min read

(Bloomberg Opinion) -- If the Democrats beat Donald Trump, take Congress and dump the filibuster, they can end the Republicans’ lock as a minority party on the federal government. Using legislation, without amending the Constitution, Congress has more power to reshape the U.S. form of government than most people grasp.

The authority to do so is in the Constitution itself — not just in the elections clause but also in the less well-known parts of the 14th Amendment. By reshaping the government, Congress would be faithful to that amendment’s original intent.

If we survive the 2020 election, a new Congress should make two fixes before we try to put the whole nightmare of it out of our minds.

First, Congress should pass a bill adopting a soup-to-nuts federal code for the way states handle and count the ballots and otherwise conduct all federal elections. At the moment, every state has different rules for mail balloting, and for the counting, sorting and securing of ballots.

It’s not just a bad and chaotic system: It’s unconstitutional. It conflicts with the ideal set out in section 1 of the 14th Amendment that every citizen, no matter the state of residence, has the same “privileges and immunities of federal citizenship.”

It is often claimed that in the so-called Slaughter House Cases (1873), the Supreme Court found no such privileges or immunities, but that is not true. Court decisions have since held that there are “privileges and immunities” that follow from the structure of the Constitution, including the right to vote. In recent years both Justice Clarence Thomas and Justice Anthony Kennedy cited the clause — Kennedy doing so in a well-known case striking down state law term limits on service in Congress.

And under section 5 of the 14th Amendment, Congress has full power to adopt appropriate legislation to ensure that those privileges and immunities of federal citizenship are to be uniform, and not subject to abridgment by the states.

As federal citizens, we should have the same right to vote in every state: the same voter ID rule, the same vote-by-mail, the same everything. We the people in the state of Washington, for example, should have the right to the same safeguards as we the people in Alabama. Any chaos on Election Day will be an abridgment of our rights as federal citizens, playing out all night long, just because Pennsylvania has one form of counting, and Ohio has another.

Even apart from the privileges and immunities clause, Congress has always had the power to conduct congressional elections in whatever way it liked. Before there was judicial review of any kind, the framers in 1787 had already given Congress an override for any and all “regulations” of states including how the vote is counted. Article I, section 4, of the Constitution, the so-called elections clause, plainly says Congress can override any rule affecting an election to Congress. Specifically, the clause says “the Times, Places and Manner or holding elections” for Congress are to be set by the states, “but the Congress may at any time make or alter such regulations.”

If Congress can do this for congressional elections, it would be preposterous to have different rules for presidential elections. Indeed, if a state tried to have two different systems or ballots for congressional and presidential elections, Congress has full power under Article I, section 4, to stop that nonsense as well.

There is a bill in the House now that, among other changes, bans partisan gerrymandering. If the Democrats take Congress, they should go further, and fix all the rules in federal elections. Otherwise, the decision will be left to the vagaries of the Supreme Court — a recent example coming from Justice Brett Kavanaugh, who offered his own rule as to when to stop counting absentee ballots.

As for the second fix, without amending the Constitution, Congress can at least neuter if not abolish the Electoral College. How? Proportional voting. Make every state allocate its electors to reflect the share of the popular vote that each candidate in that state receives. Select electors as Democrats now split the vote for delegates in their state primaries. No first-past-the-post or winner-take-all, as nearly every state has now.

Congress already regulates the popular-vote elections to the Electoral College. Since 1845, for example, it has required federal elections to take place on the first Tuesday after the first Monday in November. A mass of other laws affects how electors to the Electoral College are chosen. Even the conservative majority in Bush v. Gore (2000) held that these “state” elections to the Electoral College must comply with federal law — namely, the equal protection clause of the 14th Amendment.

If Bush v. Gore stands for anything, it’s that the federal law has the ultimate say as to who the state will send as electors to the Electoral College. Under section 5 of the 14th Amendment, Congress necessarily has the same power as the court to regulate the count in presidential elections under the equal protection clause “by appropriate legislation.”

But isn’t there a case that the states need not hold elections at all?

That’s the idea behind the argument of some Republicans — very few, so far: that under Article II, section 1, the state legislatures controlled by the GOP can ignore popular elections that go against Trump and appoint electors pledged to vote for him. In other words, the state legislature can override the people if it does not like the result.

Here’s what Article II, section 1, of the Constitution says about that: “each state shall appoint, in such Manner as the Legislature thereof may direct…” the electors who will represent the state. The original 1787 Constitution does not mention election by the people. And it is true that the conservative majority in Bush v. Gore gave a nod to the idea that the states need not hold popular elections at all.

But the court also held that if states choose to hold popular elections, then everyone has a fundamental constitutional right to vote. The right to vote in that election is now a right to vote under federal law. No state can take it away once it is exercised.

But is it true that, as claimed in Bush v. Gore, the Constitution allows state legislatures to dispense with popular elections for president? Whatever the law may have been before the Civil War, under the “old” 1787 Constitution, it’s impossible to make that argument after the “new” post-Civil War Constitution, with the 14th Amendment, adopted in 1868. Yes, some justices tend to forget there was a Civil War and a federal military occupation of 11 Confederate states, during which the Constitution was significantly revised in favor of the federal government.

Let us put aside that the right to vote in a presidential election is or should be a privilege and immunity of federal citizenship, necessarily the same in every state. There is no way Congress was going to let the legislatures of the ex-Confederate states go on disenfranchising slaves by letting the legislators pick who goes to the Electoral College.

Just look up the text of the 14th Amendment on Google. It seems that the majority in Bush v. Gore failed to scroll down from section 1 — which has the equal protection clause — to section 2 of the 14th Amendment, which more or less precludes any idea that the states can dispense with popular elections for president.

In the plain text it says: “[W}hen the right to vote in any election for the choice of electors for President … is denied to any of the… citizens of that State, the basis of representation by that State in the Congress shall be reduced by [that same] proportion.” I left out the language about disenfranchising “males over 21,” as it would now be amended in effect by the 19th and 26th Amendments to include Americans of all sexes age 18 and older.

If that’s not strong enough constitutional language that We the People have a right to vote for president, it’s hard to know what might be stronger. If a state chooses not to hold a popular vote, or ignores it, that state should lose its entire representation in Congress. In 1868, that was the message to Mississippi, and it’s still in the text today.

So under section 5 of the 14th Amendment, Congress can set the rules the state has to follow just as the court set the rules for Florida in Bush v. Gore. It is a right to vote that is expressly stated in section 2 — and cannot be taken away. And how that vote is to be counted, just as in Bush v. Gore, is a matter of federal law.

It comes down to the same power Congress has under the elections clause for congressional elections — only it is derived under the equal protection clause in section 1 of the 14th Amendment, and the express right to vote for president in section 2. As Justice Hugo Black said in Oregon v. Mitchell in 1970: “It cannot be seriously contended that Congress has less power over presidential elections than it has over congressional elections.”

Even if Republicans take back Congress in 2022 and try to reverse the changes, it will be tough to overcome a veto by President Joe Biden. It will take just one election in 2024 under the new rules, and we will never go back.

Later, as when Congress first lowered the voting age to 18 by statute, there can be a constitutional amendment to sew things up. We will be done forever with losers of the popular vote lording it over the land.

(In the 13th paragraph, clarifies that federal elections are to take place on the first Tuesday after the first Monday in November, not the first Tuesday in November.)

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Thomas Geoghegan is a labor lawyer in Chicago. He is the author of "Only One Thing Can Save Us: Why America Needs a New Kind of Labor Movement."

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