Voters in California. States could legally take back the power to appoint electors without a popular vote at any time. (AP Photo/Damian Dovarganes.)
Three weeks ago I held forth in thunder on the subject of voting: “The President and Congress have little or no constitutional authority upon which” to fix America’s broken voting system, I wrote. “It is one of the best kept secrets in our political life: There is no federal right to vote…I’d be glad to be corrected, but as best I can tell, that means that technically, in almost every case, a state can make it as hard as it wants for its citizens to vote, and there’s practically nothing DC can do about it.”
Soon after, with my gratitude, I was corrected. But that doesn’t mean that I was all wrong. Today, with the question of fair elections back in the news, what with the oral arguments this week on the Supreme Court challenge to the Voting Rights Act, let’s dig a little deeper.
Article 1, Section 2 of the Constitution grants a federal right to vote for Congressmen—who shall be “chosen…by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.” And while the states are granted an uncomfortable amount of power to set voter qualifications (no small thing: that’s the source of so many of the historic abuses so eloquently set forth in the classic text that inspired my post, Alex Keyssar’s The Right to Vote: The Contested History of Democracy in America), Article 1, Section 4 also grants Congress authority to alter voting procedures, at least in congressional elections: “The time, places and manner of holding elections shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations.”
Indeed, an election lawyer reminded me of two counter-examples in which Congress passed laws aiming at improving voting administration federally, neither of which faced constitutional challenges I’m aware of: the Military and Overseas Voter Empowerment Act (MOVE), and the Help America Vote Act (HAVA).
But that’s hardly the end of the issue.
HAVA (whose goals were to replace the failed punchcard and antiquated lever-based voting systems, to create an Election Assistance Commission to help administer federal elections and to establish minimum election administration standards), passed overwhelmingly (357-48 in the House, 92-2 in the Senate) and was signed by President Bush in 2002. But it’s one of those diabolically labyrinthine “kludges” within which America so excels in entangling its social policies: not really a congressional mandate, it instead only provides a pool of federal funding states can collect if they lay out an acceptable plan to carry out the law’s goals.