As Republicans in swing states seem to be dedicated to winning elections by keeping Democrats from voting rather than persuading people to vote Republicans, Democrats in Congress are pushing the “For the People Act.” Some of the provisions in this Act will prevent states from suppressing the vote in federal elections. The House version has already passed and it seems that Senate version may be the bill that forces a showdown over the future of the filibuster.
One of the critiques that the conservative media establishment has made of this bill is that it involves a takeover of elections by Congress. This critique, however, ignores the plain language of the Constitution. Congress has full authority over elections to Congress. Specifically, Article I, Section 4 permits the states to make laws about congressional elections but it expressly grants authority to Congress to “at any time by law make or alter such regulations” as the states have enacted. However, Congress has, for the most part, opted against fully using its authority because it hasn’t felt the need to do so.
In explaining the need for this power, the authors of The Federalist Papers noted that, without this Congressional power, state governments would be able to frustrate the federal government by simply failing to hold elections. And we are currently seeing, in real time, an example of what state control over elections can mean for Congress.
Between the death of two Republican Representatives and three Democratic Representatives taking positions in the Biden Administration, there are five vacancies in the House. Louisiana with two seats to fill — one Democrat and one Republican — moved quickly and will be holding elections today. Likewise, Texas — with a vacant Republican seat — also moved quickly and will have its election at the start of May. New Mexico — with a vacant Democratic seat — is also moving quickly and will have its election at the start of June. On the other hand, Ohio — with a vacant Democratic seat — is moving very slowly, and the Eleventh District will not be filled until November, almost eight months during which that seat will be empty.
This circumstance is a mixture of state law and pure partisan politics. In some of these states, e.g., New Mexico, state law sets a precise time frame (ten days to schedule the election which must then be held within ninety days) for the special election to fill the vacancy. And, in all of the states that are moving quickly, the executive branch is controlled by the party that is expected to win the vacant seat. But, in Ohio, the state law gives the executive branch full control over the timing of the special election, and the executive branch is controlled by the party that will likely lose the special election. Thus, it benefits the agenda of the Republican Party by keeping the seat vacant as long as possible. While there is a federal law governing vacancies in the House, it only requires a quick election if there are more than 100 vacancies in the House.
While Republicans make a big deal of voter fraud, there is very little fraud in terms of ineligible voters actually voting in election. The true fraud in U.S. elections in 2021 is the manipulation of the election process to keep eligible voters from being able to vote and drawing lines so that the party that finishes second in the vote gets the most seats. And the Framers gave Congress the power to stop state governments from manipulating election laws to prevent the people of their state from being represented in their House.
While, given the current tendency of states to hold state elections at the same time as federal elections, it is likely that the rules for federal elections will also apply to state elections, that is a choice for the states. Currently four states — Virginia, New Jersey, Louisiana, and Mississippi — hold their state elections in the odd years so that they are not at the same time as federal elections. If you ae a fan of ranked choice voting or some other election reform, separating out elections at different time is a good thing. Additionally, having state, local, and federal elections at different times allows the voters to focus on a limited number of races rather than having twenty or more races on the ballot at the same time. If the “For the People Act” leads to states opting to stagger elections, that would be a good thing. It is only the decision to hold more elections at one time than is wise that would lead to changes in federal election law also apply to state elections.
