WHY BIDEN CRIED "RACISM" IN GA.
The Democrats Entire Theory of Electoral Reform Depends Upon Proving That Republicans' Anti-Fraud Measures Are Racist Voter Suppression
Is HR 1, The John Lewis Voting Rights Act, Constitutional?
The Progressives’ Legal Case to justify the Federal Regulation of the way States conduct elections relies upon an expansive interpretation of the 15th Amendment.
In his January 21, 2022 NY Times Column, Jamelle Bouie writes:
“Much of what’s in the Constitution is vague, imprecise or downright unclear. But some parts are very straightforward.
For example, Article 1, Section 4 states that “the Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.”
He cites this and judicial opinions to then chide opponents of HR 1:
“For this reason among many, it has been strange to see Republican politicians — including some self-described “constitutional conservatives” — denounce the Democrats’ proposed new voting rights legislation as an illegitimate “federal takeover” of federal elections.”
The problem is that Mr. Bouie, and many other Progressives, overlooked Article I, Section 2 that states: “…and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”
Article I, Section 2 demonstrates that the Framers of the Constitution understood that each State would have their own qualifications for voters. Under Article I, Section 2., each State can have its own rules about who is registered to vote, and whether they have to present Photo ID, or documents authenticating their Citizenship. To the extent that HR 1 treads on this turf, it is violating the Constitution, and the Republican legislators are correct.
Article I, Section 4 gives the Federal Government the power to set the voting date as the first Tuesday of November, or whether polls must be open for two weekends, a minimum number of polling places, or whether Mail-In Ballots are permitted, etc. Starting in 1789, the Federal Government did not set up its own Department of Elections. Instead, it relied upon the States to run Federal Elections, and it has historically given the States wide latitude to run Federal elections alongside State elections.
Even though HR 1 is dead for now, the Progressives promise to resurrect it in the future. Therefore, it is still important to understand their arguments for the next round of debates.
Take the hypothetical case that HR 1 is enacted. If a State doesn’t like HR 1’s prohibitions against requiring photo identification, birth certificates, Social Security numbers, passports or other means of authenticating US Citizenship HR 1, then the State could simply ignore the provisions of HR 1. This would force the Federal Government to take the initiative to file suit in Federal Court against the State to stop it from continuing to demand Citizenship documentation and photo ID to register to vote, to Mail-In Ballots or cast in-person ballots.
If the Federal Government used its powers in Article I Section 4 to step in, finance and operate the Federal elections in that State according to its own rules, then the State would have to take the initiative and file suit in Federal Court. It would claim that under Article I Section 2, the Federal Government must use the State’s voter registry and rules for authenticating Mail-In and in-person ballots, even if it decides to run the elections within the State.
To overcome the charge that HR 1 violates Article I, Section 2, the Progressives’ must claim that the 15th Amendment limits the States’ ability to adopt the anti-fraud measures proposed by Republicans.
The 15th Amendment reads with italics added:
“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
HR 1 Proponents would have to argue that when States require persons to submit documents proving their citizenship along with photo identification, then those States are discriminating on account of race. They will assert that these requirements have a disparate impact upon minority voters, and therefore, States must cease these requirements. Therefore, if States wish to adopt their own rules for registration and identification authentication in conflict with HR 1, they still cannot adopt any procedures that violate the 15th Amendment.
Because the text of the 15th Amendment only protects citizens of the United States from discrimination, Progressives are opening a Pandora’s Box of counter-arguments.
The Progressives’ case against States requiring photo identification is weakened by the phrase “citizens of the United States.” The States could argue that they are furthering a valid Constitutional interest to ensure that the State has the means to deny non-citizens’ participation in elections. Ironically, the 15th Amendment gives both sides the ammunition to bolster their arguments.
Progressives realize that any remedy prohibiting use of photo identification or citizenship documents relies upon the courts, and not legislation. Article I, Section 2 still grants States, not the Federal Government, the authority to determine their own rules for suffrage and compiling a voter registration list, provided that they conform to the requirements of the Constitution.
As the saying goes, “If you have the law, hammer the law. If you have the facts, hammer the facts. If you have neither the law nor the facts, hammer the table”. With HR 1, the Democrats have neither the Constitution, nor the facts. There is no way that the Roberts Court is going to buy the argument that photo IDs required by most EU Nations and Mexico for registration and voting are somehow a uniquely racist encumbrance for American voters. The 15th Amendment contains the inherent contradiction that justifies adopting these anti-fraud measures.
Therefore, President Biden and the rest of the Progressive Chorus must use the anti-racist hammer to pound the Republicans lying on the table. This legal cul-de-sac explains why the Democrats must go all-in with Racism if they have any hope of adopting HR 1. Whatever its merits for improving elections, ultimately, HR 1 is a political stunt for rallying the base, providing model legislation that can serve as a future goal to strive for.
In the meantime, Articles 2 and 12 contained in The US Re-Constitution solve these problems by re-thinking the assumptions and premises of our Constitution.
David Barulich