The Federalization of America's Election Laws: A Misplaced Democratic Initiative

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Introduction

Today, January 11, 2022, President Biden takes to the road visiting Georgia to tout the Democrats sponsored and backed Freedom to Vote Act as well as the John Lewis Voting Rights Advancement Act. Clearly, as will be explained herein, both of these measures are illegal and are doomed for failure.

What Do These Proposed Laws Attempt to Do?

The Freedom to Vote Act

In the U.S. Senate, the Freedom to Vote Act [ S.2747 - 117th Congress (2021-2022)] was sponsored by Sen. Amy Klobuchar (D-MN). The advanced purpose of the Act is to address voter registration and voting access, election integrity and security, redistricting, and campaign finance. To summarize the effects of this act, it would require States to:

• Enact an automatic voter registration system through their DMV and ensure all voters have access to online voter registration.
• Offer at least 15 consecutive days of early in-person voting, including two weekends.
• Offer same-day voter registration at all polling locations by 2024.
• Establish no-excuse mail voting for all voters in federal elections, with free postage for returning ballots, accessible drop boxes and an easy way to cure deficient ballots.
• Count all mail-in ballots sent by Election Day and received within seven days of an election.
• Count all provisional ballots for eligible races in a county, regardless of the precinct they were cast in.
• The bill also makes Election Day a public holiday, restores the right to vote for felons who have served their time and includes targeted protections for populations facing unique challenges like people with disabilities, Native Americans and underserved communities.

[See, e.g. Democracy Docket. The Freedom to Vote Act Unpacked. (Accessed January 11, 2022)].

The John Lewis Voting Rights Act

Certain key portions of the seminal Voting Rights Act of 1965 were struck down by the United States Supreme Court in Shelby County v. Holder, 570 US 529 (2013) and Brnovich v. Democratic National Committee, 594 U.S. ___ (2021). The ultimate goal of the John Lewis Voting Rights Advancement Act of 2021 (H.R. 4) is to strenghten and restore the portions of the Voting Rights Act of 1965 as stricken by the Court.

Specifically, the John Lewis Voting Rights Act would restore the Voting Rights Act's requirement that certain states pre-clear various changes to their voting laws with the federal government. [See, e.g. della Cava, M. Activists working in John Lewis' shadow warn about voter suppression ahead of November vote. (Accessed January 11, 2022)]. This bill passed in the United States House of Representatives on August 24, 2021 by a vote of 219 to 212 (note - all House Democrats voted in favor and all House Republicans voted against). It is now pending in the U.S. Senate.

Why are the Freedom to Vote Act and the John Lewis Voting Rights Act Illegal

As both of these bills attempt to federalize elections and voting rights, they run counter to a specific section of the United States Constitution. Article 1, Section 4, Clause 1 of the United States Constitution provides:

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 chusing Senators.

[U.S. Const. art. 1, sec. 4, cl. 1 (1787)].

Under this Constitutional provision, both the Freedom to Vote Act and the John Lewis Voting Rights Act are unconstitutional. The intended effects of both pieces of legislation infringe upon the States rights to govern the election process as guaranteed to the States by the Constitution.

The authority of the States to regulate the times, places and manner of conducting elections has been described by Courts as:

embrac[ing] authority to provide a complete code for congressional elections ...; in short, to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental rights involved.

[Smiley v Holm, 285 U.S. 355 (1932)].

"The dominant purpose of the Elections Clause . . . was to empower Congress to override state election rules, not to restrict the way States enact legislation. . . . [T]he Clause ‘was the Framers’ insurance against the possibility that a State would refuse to provide for the election of representatives to the Federal Congress." [Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. 787 (2015)]. As such, the role of regulating elections clearly falls to the States and Federal intervention may only be had when the fundamental right to fairly vote is infringed upon (i.e. in the case of patent discrimination).

Therefore, both bills are unconstitutional under U.S. Const. art. 1, sec. 4, cl. 1.

In any Event, Biden's Trip and the Democrat's Push to Pass this Legislation is an Exercise in Futility

The United States Senate, at present, is equally divided 50 Democrats and 50 Republicans, with ties being broken by the vote of the President of the Senate (the Vice President of the United States). However, both the Freedom to Vote Act and the John Lewis Voting Rights Act are subject to Republican filibuster requiring passage of both by 60 votes in favor.

But both pieces of legislation lack any Republican support whatsoever. As such, it is impossible for the Democrats to muster 60 votes to pass these bills as there appears to be little chance to convert 10 Republican votes to yes. Under the present Senate rules these bills fail - and the Democrats know this.

So why is the President and the rest of the loyal Democrats still pushing these bills. The answer is easy - if the filibuster rule isn't working in their favor, repeal the filibuster. Why not, the rule has only been in place since 1837! This is precisely what Sen. Schumer (D. NY) the current Senate Majority Leader proposes to do.

To enact this rule change, Schumer must first exercise the 'nuclear option' then have all 50 Democratic Senators vote in favor of the rule change to do away with the filibuster. However, at this time, Schumer lacks the 50 Democratic votes he needs to succeed. Sen. Joe Manchin of West Virginia and Sen. Kyrsten Sinema of Arizona are two democratic hold-outs who both have stated they want to preserve the filibuster rule for whoever is in the minority.

If the Democrats fail to repeal the filibuster, both Election bills are dead for lack of Republican support. So, barring any unanticipated changes of heart with respect to the filibuster rule, failure is in the cards for the Democrats as regards both Election bills and all the Biden/Schumer fuss is a major exercise in futility.

An Ancilliary Thought on What this Warns Us as regards Cryptocurrency

It is highly likely that 2022 will be a year which sees major movement in the area of cryptocurrency regulation. The above goes to show us the ends the Democrats will go to to achieve their agenda. Even if it entails advancing patently unconstitutional laws and attempting to repeal time-honored rules governing our democracy it is apparently fair game to them.

As a cryptocurrency enthusiast, it is urged that we must all remain vigilant against any governmental action that infringes on our rights. We will only be free from legislative overreaching by innovating ourselves out of their grasp. We must embrace decentralization to preserve our economic freedoms and continue to build an economy truly free from governmental intervention.

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