H.R. 1 Is a Constitutional Disaster in the Making | Opinion

Respectfully, has Stacey Abrams read the Constitution?

The former Georgia state legislator and gubernatorial candidate recently told CNN that "the Elections Clause in the Constitution guarantees that the Congress alone has the power to regulate—to regulate the time, manner and place of elections." Abrams added that Democrats' H.R. 1 bill, which would make the mess of the 2020 mail-in election both permanent and nationwide, "demands that the entire U.S. Senate acknowledge that protection of democracy is so fundamental that it should be exempt from the filibuster rules."

The Constitution does not give Congress any power to regulate elections "alone." Contrary to Abrams' claim, Congress has only a secondary, concurrent power over congressional elections, an even smaller role in presidential elections and no specific role in state elections at all. H.R. 1 greatly undermines this structure. If enacted, it would be a Washington, D.C. takeover of elections on a collision course with the Constitution's text, structure and principles—all of which put the states in the driver's seat.

As James Madison made clear in The Federalist No. 45, "[t]he powers delegated...to the federal government are few and defined," while "[t]hose which are to remain in the State governments are numerous and indefinite"—a principle reinforced by the Tenth Amendment. Thus, Congress has no powers except for those which the Constitution expressly enumerates and assigns to it.

The Elections Clause that Abrams references appears in Article I, Section 4. Rather than putting "the Congress alone" in charge of elections, the Elections Clause reads: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof" (emphasis added). Thus, Supreme Court Justice Neil Gorsuch wrote last year, "The Constitution provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules." Justice Brett Kavanaugh separately noted that the state legislative judgments about election rules "reflect[] our constitutional system of federalism."

It is true that Article I, Section 4 says Congress "may at any time by Law make or alter such Regulations" for the elections of senators and representatives, but this power is second in text and reserved in principle. By way of text, "such Regulations" refers to those "time, place and manner" rules that a state legislature enacts in the first instance. By way of principle, in The Federalist No. 59, Alexander Hamilton described Congress's role in regulating its own elections as a "last resort"—a power reserved for "extraordinary circumstances."

In contrast with the concurrent powers over congressional elections in Article I, the parallel provision for presidential elections in Article II, Section 1 only gives Congress power to "determine the Time of chusing the electors" (emphasis added), but makes no reference to congressional authority over the "place" or "manner" of presidential elections. Instead, that section enumerates authority to "appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress." The "Legislature" here means the state legislature—not "Congress alone."

House Speaker Nancy Pelosi (D-CA)
House Speaker Nancy Pelosi (D-CA) GRAEME JENNINGS/POOL/AFP via Getty Images

This is not a novel reading of the Constitution. In McPherson v. Blacker (1892), the Supreme Court emphasized that the Constitution "leaves it to the [state] legislature exclusively" how a state conducts presidential elections, and that the state legislature's power "can neither be taken away nor abdicated." This principle was reaffirmed by Bush v. Gore (2000), which held that "the state legislature's power to select the manner for appointing electors is plenary." As recently as last October, the U.S. Court of Appeals for the Eighth Circuit held that the Constitution "vests the power to determine the manner of selecting electors exclusively in the Legislature of each state." H.R. 1's sweeping rewrite of state election rules for federal elections likely clashes with this exclusive constitutional grant of authority.

And Congress has no enumerated power at all to regulate elections for state office. Hamilton explained the common-sense reason: giving Congress power "to regulate the elections for the particular States" would be "a premeditated engine for the destruction of the State governments."

For these reasons, Abrams' "demand" that the Senate make an exception to the filibuster for congressional incursions into state-created election rules is precisely backwards. If anything, the filibuster's importance rises when Congress interferes with state law. A carve-out from filibuster rules would make it easier for the barest majority in a 50-50 Senate to steamroll the minority and change election rules to permanently entrench a Democrat majority. To make it this easy for the Senate to override state election law neglects the entire reason the Constitution created the Senate. As The Federalist No. 62 put it, "the equal vote allowed to each State" in the Senate is "a constitutional recognition of the portion of sovereignty remaining in the individual States."

Ending the filibuster would erode the consensus-driven compromises that the Senate was designed to generate in order to undercut the fundamental equal sovereignty of the 50 states. Enacting H.R. 1 this way would be a clear attempt by some states to impose their preferred election rules on other states.

There are other constitutional defects in H.R. 1. Universal mail-in balloting of the sort contemplated by Speaker Pelosi's bill might violate equal protection principles, giving voters who exercise the franchise by mail advantages over in-person voters who must wait in line and meet a firm election day deadline, in violation of Bush v. Gore's holding that government "may not...value one person's vote over that of another." H.R. 1 invites unequal treatment of lawful votes by dictating that states "may not require an individual to provide any form of identification as a condition of obtaining an absentee ballot" besides a signature, and mandating that election officials accept even on-the-spot sworn written statements as "workaround[s]" to traditional forms of identification for in-person voters.

None other than Amazon founder and current Washington Post owner Jeff Bezos has opposed mail-in voting when it comes to unionization votes in his own company, presumably for the reason that mail-in ballots are less secret and less secure, leaving voters more susceptible to pressure tactics or fraud. And even the ACLU has highlighted how H.R. 1's disclosure rules trample First Amendment rights to free speech and freedom of association.

To be sure, the Constitution institutes regular elections to guard American freedom, but without structural limits on federal power, our elections would be ineffective at protecting our sacred liberty. H.R. 1—and any attempt to alter filibuster rules to pass it without any Republican support—strikes at the heart of these limits.

C. Boyden Gray formerly served as White House counsel to President George H.W. Bush and as the U.S. ambassador to the European Union.

The views expressed in this article are the writer's own.