THE SWEEP OF THE ELECTORAL POWER.

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Date: Spring 2021
From: Constitutional Commentary(Vol. 36, Issue 1)
Publisher: Constitutional Commentary, Inc.
Document Type: Article
Length: 33,768 words
Lexile Measure: 1730L

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Congress is on the cusp of transforming American elections. The House recently passed a bill that would thwart voter suppression, end gerrymandering, and curb the undue influence of the rich. Something like this bill could soon become law. In this Article, I provide a multilayered foundation for such sweeping electoral legislation. From a theoretical perspective, first, I argue that Congress poses less of a threat to democratic values than do the states or the courts. It's more difficult for a self-interested faction to seize control of federal lawmaking than to capture a state government or a judicial body. Second, surveying the history of congressional electoral regulation, I contend that it's remarkably benign. Most federal interventions have advanced democratic values--in marked contrast to many of the states' and the courts' efforts.

Third, I show that current law grants Congress the expansive electoral authority that, normatively, it ought to possess. In particular, the Elections Clause, the Guarantee Clause, and the Fourteenth Amendment's Enforcement Clause combine to empower Congress over most electoral levels and topics. And fourth, returning to the House's recently passed bill, I maintain that its most controversial elements are constitutional under the applicable doctrine. In fact, Congress could venture considerably further than, to date, it has tried to go. Together, these points should hearten legislators when they next turn to the project of electoral reform. Not only is aggressive federal action permissible in the American political system--it may be the only way to save it.

INTRODUCTION

Although it came and went without much fanfare, March 8, 2019 was a momentous day in the history of American election law. On that day, the House of Representatives passed the For the People Act, the most sweeping electoral reform bill ever to win the support of a majority of a chamber of Congress. (1) Among (many) other things, the Act would have mandated automatic voter registration, (2) ended felon disenfranchisement, (3) required states to redraw district lines using independent commissions, (4) established a system of public financing for congressional candidates, (5) and restructured the agency responsible for regulating money in politics. (6) This set of proposals was more ambitious than Congress's most recent election laws--the National Voter Registration Act of 1993 (7) and the Help America Vote Act of 2002 (8)--which were limited to relatively minor aspects of registering to vote and casting ballots. The For the People Act was also more far-reaching than the post-Watergate reforms of campaign finance, (9) which didn't offer public funds to congressional (as opposed to presidential) candidates. The For the People Act even swept further than the Voting Rights Act of 1965 (10) and its Reconstruction antecedents a century earlier. (11) Those monumental laws targeted only one evil (racial discrimination in voting) primarily in only one part of the country (the deep South).

The lack of hubbub over the For the People Act--despite its extraordinary content--had a simple explanation. It was just a bill. It wasn't an enacted law. After being passed by the House, it wasn't...

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Gale Document Number: GALE|A671390259