If they get their way and the proposed legislation passes, it will disembowel our voting system as we know it, and the chaos and glitches of the last election would not only happen again—the chaos and glitches will be embedded in federal law.
The proposed legislation, called the Freedom to Vote Act, would violate the constitutional provision regarding voting in the United States. Article I, Section 4, Clause 1 (the Elections Clause) directs and empowers states to determine the "Times, Places, and Manner" of congressional elections, subject to Congress's authority to "make or alter" state regulations. It gives each level of government the authority to enact a comprehensive code for elections, including rules concerning voter registration, fraud prevention, vote counting and determination of election results. When a state enacts a law relating to an election, it is exercising power under the Elections Clause. The implicit authority of this clause extends to other local and statewide elections as well. It is foundational to the right to vote in America.
In an effort to fundamentally change our election system, leaders supporting this controversial legislation are using hyperbole and alarmism to make their case. This is disingenuous and manipulative. We deserve better. For example, President Biden has characterized the issue as "the most significant test of our democracy since the Civil War." Really?
We have faced many challenges since the Civil War and united as a people to face them. Senate Majority Leader Chuck Schumer and Speaker of the House Nancy Pelosi have both stated that our entire democracy is at stake. The United States has survived and thrived under the guarantees of the U.S. Constitution as we elect our leaders. Subsequent laws, such as the Civil Rights Act of 1965, have strengthened the integrity of elections in America.
What these members of Congress, as well as the President and Vice President, are seeking is a federal takeover of elections in order to gain political advantage. President Biden talks a good talk about federalism and the sovereignty of the states, recently stating concerning COVID-19 that this is an issue best handled by state governments. However, his words ring hollow as he still seeks federal mandates on how we respond to the pandemic—and even more so when this principle is applied to voting.
Looking at recent legislation passed by several states following the 2020 election, including the states of Georgia and Texas, one must ask, "What do these politicians see as a threat to our democracy?" These new state laws have actually increased opportunities to vote and have sought to ensure free and fair elections.
For example, multiple states have passed voter ID laws. One must present a valid form of identification to vote. If one does not have a driver's license, these states will provide a government-issued ID free of charge. We must present identification to board an airplane or check out a book at a library. Why would they object to such a requirement to participate in one of the most sacred and important privileges of citizenship? Eighty percent of Americans in a recent poll support voter ID laws.
The ACLJ, on behalf of more than 647,000 of our supporters and 57 members of Congress, recently filed an amicus brief that emphasized the substantial constitutional authority of Georgia, and other states, to protect the integrity of their elections.
The law in Georgia increased early voting from 14 days to 17 days. (Delaware, the President's home state, just recently instituted early voting and only allows it for eight days.) The Georgia law forbids ballot harvesting, a practice that invites voter fraud. There is no mass mailing of ballots—a COVID-era practice that led to widespread opportunities to cheat by voting multiple times. Absentee ballots are not automatic; they must be requested. Felons cannot vote unless they go through the process of having their voting rights restored. There were no ballot drop boxes in the U.S. until COVID. Georgia includes them in the new law, but they must be secure and supervised. In short, the President is wrong: This is NOT Jim Crow 2.0. The new law in Georgia—like many of the laws recently enacted in other states—is a credible attempt to preserve the integrity of elections. The laws are not remotely racist and they do not disenfranchise voters. The goal of the law in Georgia and the 18 other states that enacted new voting laws is to make it easy to vote—but hard to cheat.
The proposed federal legislation would do exactly the opposite. Among many atrocious provisions, the bill would prohibit states from requiring an excuse to vote absentee. Ballots would be counted and considered valid up to seven days past the election day. It would restrict states from keeping their voting rolls current, for example by eliminating those who died or moved to another state. It would automatically allow felons to vote if they are out of prison. Absentee ballots would be mailed to all voters.
In the Freedom to Vote Act coming before the U.S. Senate, if certain states enact any new election laws, the federal government will have to clear the legislation first. This sounds more like autocracy in a corrupt foreign government than the free and fair elections in the United States. It violates the sovereignty of the several states that is contained in the U.S. Constitution. It is a flagrant violation of the Elections Clause. It is emblematic of an out-of-control central government.
No Republicans will support the Freedom to Vote Act. In a 50-50 divided Senate between the two parties, the filibuster rule would require 60 senators to bring this misguided bill to the floor for a vote. Never ones to let a pesky rule or safeguard get in the way of a political win, the President and those on the Left want to change the filibuster rule so that this legislation can pass with 50 votes and the Vice President breaking the tie. But two Senators in the Democrat Party are reluctant to change this long-standing Senate rule. So they are being cajoled (and at times attacked) by the Left to go along with this plan to force through the Freedom to Vote Act.
This is a critical time in our life together as citizens of the United States. Our right to vote, to say nothing of our right to trust the outcome of our elections, is foundational to the nation we know and love. We must look at the facts and not fall victim to the slick salesmanship of Left-wing political operatives. Our Constitution, and laws enacted over the last 60 years, seek to guarantee our right to vote as citizens—irrespective of our race, creed, color, religion, or political affiliation. Free and fair elections are a hallmark of the United States. We must stand against those who would take this away from us while they pretend to make our elections safe and secure.
For more stories like these, visit American Center for Law and Justice.
Chaplain Colonel (Retired) J. Wesley Smith is senior advisor for Military Affairs at the American Center for Law and Justice. He served 26 years in the Army, with two combat deployments.
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