Snational legislatures must reassert their constitutional authority over elections – and that means the state legislators must take the time to understand the central role they play in the management of federal elections.
The Constitution makes it very clear that state legislatures are intended to oversee federal elections within their jurisdictions. Indeed, the language used by the Founders strongly suggests that they viewed the authority of the state legislatures over elections as plenary.
Article 1, Section 4, Clause 1 of the Constitution reads as follows: “The times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof; but Congress may at any time, by law, make or modify such regulations, except as to the choice places of senators.
The meaning of this text has become a matter of debate lately, with many opinions being voiced on the so-called “independent state legislature” theory, particularly in light of the Supreme Court’s ruling. decision in favor of Republican lawmakers in North Carolina who have sought permission to defend a state voter ID law in court.
Shortly after making this decision, the court agreed to take another case involving the authority of the North Carolina Legislature to administer elections. In that case, lawmakers are appealing a state Supreme Court decision tossing out their Congressional cards, arguing that the Constitution gives them, and not their state courts, exclusive power to determine “the hours , where and how to hold elections for senators and representatives. ”
Several justices have given indications that they support the theory of an independent state legislature, and the North Carolina case may offer them an opportunity to enshrine this interpretation of the Constitution as court precedent. supreme.
Many would say that is just common sense and that the authority of the state legislature is unchallenged unless it is exercised in a way that conflicts with other federal constitutional provisions. Some would even go so far as to wonder why the plain meaning of the Constitution on this issue could ever be seriously debated. Opponents argue that when the Founders gave authority over federal elections to state legislatures, they were actually giving that authority to state governments as a whole. Therefore, governors presume the power to veto election legislation, and state courts presume the power to strike down election laws that they deem conflict with the state constitution.
But the founders were nothing if not precise in their use of language. Elsewhere in the same document, the framers of the Constitution very clearly distinguished between the legislative, executive, and judicial branches of state government. It seems highly unlikely that they would have assigned the power of elections to the state “legislatures” if, in fact, they had intended to assign that power to the state “governments” as a whole, given the ease with which they could have clarify their meaning. and unambiguously whether that had really been their intention.
Unfortunately, the state legislatures themselves seem to have become accustomed to ceding their constitutional authority to the other branches of state government, particularly the executive branch. In Georgia, for example, decrees of consent concluded by Secretary of State Brad Raffensperger radically reshaped the state’s electoral processes in the 2020 election. The legislature, despite having already passed laws establishing contrary processes, had no say in say in the new rules created by Raffensperger and the courts.
Similarly, legislatures have, for the most part, obediently accepted that their election laws be subject to the governor’s veto, just like other laws. In Michigan, Pennsylvaniaand other states, Democratic governors vetoed election integrity legislation passed by Republican lawmakers, prompting outrage but no real action.
In large part, the impotence of state legislatures is the product of their own inability to assert themselves. In most states, the legislature is not even in session between Election Day and Inauguration Day, creating a major obstacle for lawmakers to act even when there are obvious irregularities in the process. of voting.
This effectively leaves the elections unmanaged and unreviewable. The branch of government with the political authority to manage elections has separated itself from the exercise of that authority, often leaving the management of elections to unelected and politically irresponsible government officials. Separating operational authority from political responsibility is a formula for bad government.
That’s why the American Voter’s Alliance created model legislation which will empower state legislatures to resume their proper constitutional role of establishing “the time, place and manner” of elections. The model legislation creates bipartisan election oversight committees, extends transparency requirements to the U.S. Postal Service, requires voter-marked ballots, creates penalties for ballot theft, requires equal treatment of voters, and ballots and prohibits the use of private funds in government election offices. .
Our model legislation ensures that U.S. elections will be transparent, inclusive, and accountable: the same standards that the United States Agency for International Development expects from other countries in the world.
Election experts including former Ohio Secretary of State Ken Blackwell and Lori Roman, president of the American Constitutional Rights Union Action Fund, endorsed AVA’s model legislation, hailing it as a bipartisan roadmap to restore public confidence in our electoral process.
Unless and until state legislatures reassert their constitutional authority over elections, our elections will continue to be plagued by confusion and mistrust. The first step is for state legislators to educate themselves on the incredibly important role they are expected to play in ensuring that our elections are safe, secure, and trustworthy.
Jacqueline Timmer is the founder and director of the American Voter’s Alliance, a nonprofit voter education group focused on electoral integrity.
