Republican-dominated state legislatures around the country have responded to the cynical calls from Donald Trump for “election reform” with an array of proposals to restrict voting rights. They include limiting early-voting opportunities, constraining access to vote-by-mail and imposing more voter identification and other requirements to protect against what Mr. Trump falsely claimed to be “a level of dishonesty” that “is not to be believed.”
In Washington, congressional Democrats have rallied around H.R. 1, which has already passed in the House and would establish specific voting rules that states would be required to follow for federal elections, empowered by Congress’s clear constitutional authority to “make or alter” state regulations governing the “Times, Places and manner” of holding such elections.
But as this legislation is pending, the Republican state legislative movement to burden the exercise of voting rights proceeds apace. Iowa has already done so, Georgia is poised to act shortly, and others may follow suit.
Congress should consider a targeted federal law to counter this march of these draconian state laws. And it could be designed in such a way that some Republicans would support it — or find it uncomfortable to explain why they wouldn’t.
This law would make clear that a state may not revise its rules to restrict voting access in federal elections in specified areas — including the withdrawal of existing vote-by-mail opportunities and reductions in early voting — unless it is done on a bipartisan basis.
A core objective of this legislation — to protect the right to vote from partisan manipulation of the rules — would be to enhance public perceptions of the fairness of the political process. With one political party unleashing a national movement to sharply limit access to the franchise, claiming contrary to fact that the presidential election it lost was corrupted by fraud, Congress is well justified in asserting its constitutional authority in federal elections and bringing a halt to it.
Nothing in this approach, targeted at the current wave of partisan state lawmaking initiatives, is inconsistent with passage of H.R. 1, which includes substantive reforms that, in addition to campaign finance and other reform measures, would strengthen voting rights and bolster election infrastructure security. And absent bipartisan support, the states should not be able to enact new restrictions on voting while Congress takes uniform federal rules in a more comprehensive package.
Critics may object that Congress cannot constitutionally “commandeer” the states to enact, or refrain from enacting, legislation of any kind. But the congressional power to “make or alter” state voting rules for federal elections is exactly what the Election Clause expressly authorizes. This power encompasses, as the Supreme Court has noted, “registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns.”
The states must follow the federal government’s requirements for their conduct of elections for federal office, regardless of the choices they make for state and local contests, and they also bear the administrative responsibility and expense of doing so. Where the Supreme Court has applied the “anti-commandeering” doctrine, it has done so to stop Congress from conscripting the states into the enforcement of federal regulatory programs, as it has done in cases involving the Commerce Clause.
A bipartisanship requirement is a legitimate test of the validity of a state law affecting voting in federal elections. This is the rationale behind the requirements for politically balanced memberships that states have adopted for independent redistricting commissions. In applying a bipartisanship requirement to this proposed measure for restrictive state voting rules, Congress could, for example, provide that a state legislative rule change would have to have the support of at least a third to one-half of the second-largest party of the state legislature.
Why might — or should — such a law attract some Republican support? For one, after all the charges and countercharges of partisan machinations in the states in the 2020 elections, Republicans would have the opportunity to register support for bipartisan state action — or to defend their opposition. Republicans may also be influenced by Republican state officials in charge of elections. For example, the Florida State Senate recently heard testimony about a proposed bill limiting the use of drop boxes and adding other limits on mail voting. Democratic and Republican supervisors of elections testified against the bill. State election law administrators — among them many Republicans — are very wary of these harshly restrictive measures, which complicate the voting process and, in creating the likelihood of, as one supervisor of elections said, “long lines, chaos and confusion,” are unpopular with Republican as well as Democratic voters.
Legislation along these lines is certain to be resisted by many Republicans and challenged in court. But Congress must defend its authority in federal elections and call out in clear terms the power play pursued by Republican state legislators. There is no reason to doubt that after the experience of 2020 and the events of Jan. 6, most Americans will respond well to a call for bipartisanship in how the states establish voting rights rules.
Bob Bauer, a former senior adviser to the Biden campaign, is a professor at New York University School of Law and a co-author of “After Trump: Reconstructing the Presidency.”
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