America’s Patchwork of Election Laws Under Scrutiny

America’s Patchwork of Election Laws Under Scrutiny

America's Voice Admin
March 6, 2021

The Democrat-led U.S. House of Representatives this week passed a bill that would greatly expand access to voting in federal elections. Even though Senate passage is highly unlikely, Democrats are underscoring their commitment to making voting easier at a time when Republicans seek to limit voting access in many states.

The bill was labeled House Resolution 1 in order to signal its importance to Democrats’ agenda, and it passed with no Republican support. Also known as the For the People Act, it would force sweeping changes to state election laws, with the aim of making it easier for eligible voters to cast a ballot.

Among other things, H.R. 1 would create an automatic voter registration system and limit the ability of state officials to purge voters from the system. It would also require states to make early voting available and block limits on mail-in voting. In addition, it would require that congressional districts be drawn by non-partisan commissions to prevent state legislatures from drawing districts that unfairly disadvantage one party, a practice known as gerrymandering.

Access versus integrity

Beyond measures aimed specifically at access to the ballot, the bill would attempt to reduce the power of big-money donors to influence elections by requiring politically active organizations to disclose the sources of their funding and by creating a federal system of matching grants that would allow lawmakers to campaign without relying on high-dollar donations. It would also strengthen ethics enforcement and election oversight.

Democrats promote the bill as what they deem a common-sense effort to ensure that all eligible voters in the United States are able to cast a ballot if they want to. They point to hundreds of bills introduced by Republicans in state legislatures across the country that are explicitly aimed at making it more difficult to vote. Republicans ramped up what they refer to as “election integrity” efforts in the wake of the 2020 election, in which enormous voter turnout helped Democrats take control of the White House and the Senate, thanks to the tie-breaking vote of the vice president, while preserving control of the House, albeit with a slimmer margin.

The same day that the House passed H.R. 1, a group of 20 states’ attorneys general, all Republicans, sent a letter to congressional leaders arguing that the bill is constitutionally flawed and suggested that it is meant to favor Democrats.

“Despite recent calls for political unity, the Act takes a one-sided approach to governing and usurps states’ authority over elections,” they wrote. In the event the bill becomes law, they promised legal challenges, writing, “[W]e will seek legal remedies to protect the Constitution, the sovereignty of all states, our elections, and the rights of our citizens.”

Defining citizenship

America’s patchwork of election laws that differ from state to state – and partisan battles over those laws – may seem odd to the citizens of other large democracies. Why hasn’t America settled on uniform rules for registering voters and casting ballots? Why do so many laws seem to diverge from the goal of maximizing voter participation?

“The sovereignty of the [nation] state and defining the boundaries of who's included under the government, under the rule of law, is one of the most important aspects of being a state,” said Jennifer N. Victor, a professor of political science at George Mason University’s Schar School of Policy and Government.

Victor sees a contradiction inherent in the U.S. system. Whether a person is a citizen of the United States is determined by federal law, and the right to vote is, theoretically, established at the same time as citizenship. But because the U.S. conducts elections at the state level, and gives states the authority to control access to the ballot, states also have the ability to limit some Americans’ access to that essential right of citizenship.

Republicans maintain laws limiting voting access aim to protect election integrity and prevent voter fraud. They reject accusations that they seek to make it harder for Democratic-leaning constituencies to cast ballots.

“The job of the state government committee is to ensure election integrity. You make improvements, and that’s exactly what we are doing here,” said Republican State Representative Bobby Kaufmann of Iowa, where a bill recently passed the state legislature limiting early and absentee balloting.

Victor rejects such arguments.

“There's a part of me that wants to say it's a disingenuous argument, because what a lot of folks hear in those discussions about integrity is that they are seeking to define who gets to participate easily,” she said. “Who has to prove that they have a right to participate, and who is sort of assumed that they have the right to participate? Of course, all of those questions get very wrapped up in the history of racial discrimination in the United States and assumptions about who is more American than others.”

How did we get here?

So, why is world’s oldest constitutional democracy so wrapped up in fights over voting rights?

"It comes down to a few things about the American Constitution that are different from most other democracies and most other constitutions," said Todd Eberly, professor of government and political science at St. Mary's College of Maryland. "One is the fact that our Constitution recognizes that states ... also have some sovereign powers. And our Constitution basically tells the states, 'Your legislators are supposed to choose the time, the place, and the manner in which elections are held.'"

In that respect, Eberly said, the United States is quite different from other large democracies, even those that have a degree of federalism built in, like Canada, Australia, and Germany.

"In most of the other countries that have adopted constitutions that recognize some degree of what we call federalism, there is a deference towards the national authority. If you think about the timing -- when our constitution was written and ratified -- we were specifically trying to avoid a central power. That is not necessarily the case for the federal democracies that have come since then. The truth of the matter is, our constitution makes legislating and setting national goals very, very difficult. And that was something that other countries sought to try to avoid."

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