- The Washington Times - Monday, March 22, 2021

Democrats are championing their massive election overhaul as a voting rights bill, but their proposal reaches far beyond the ballot box, with dictates on how candidates may run for office and restrictions on how states can challenge the sweeping regulations in court.

At least six sections in the more than 800-page bill potentially run afoul of the Constitution, legal scholars say, including requirements that states offer automatic and same-day voter registration, rules on the expansion of mail-in voting and provisions for creating commissions charged with redrawing congressional districts. The bill also calls for an ethics code for the Supreme Court and mandates that presidential candidates disclose their tax returns.

The bill, which is titled the For the People Act, takes the unusual step of mandating a singular process for challenging the proposed laws.

The bill would require that legal challenges be filed in federal court in the District of Columbia, preventing states such as Texas, Georgia and North Carolina from contesting various aspects of the legislation at home, where the judges tend to be more conservative.

The bill requires all of the cases to be consolidated in the District to expedite judicial review, forcing every state that wants to challenge the law to do so in a single lawsuit.

“That sounds more like they are just trying to get, in a sense, rid of any challenges as quickly as possible,” said Curt Levey, president of the Committee for Justice, a conservative activist group. “Ultimately, this is going to go to the Supreme Court anyway.”

Liberals said dictating where lawsuits must be filed is not new and that the For the People Act doesn’t mandate that all challenges be filed in one lawsuit — only that they should all be considered by the U.S. District Court for the District of Columbia, which has the most experience handling campaign finance litigation.

“Existing law already mandates that challenges to campaign finance law be filed in D.C.,” said Adav Noti, chief of staff at the Campaign Legal Center and a former attorney at the Federal Election Commission. “There is certainly no constitutional issue.”

The conflict over how and where litigation can be filed, and the constitutionality of the overall bill, will be examined when the Senate Rules Committee takes up the legislation at a hearing scheduled for Wednesday.

Democrats defend the bill by pointing to the elections clause of the Constitution, which gives Congress authority over the time, place and manner of congressional elections.

“Congress finds that the Constitution of the United States grants explicit and broad authority to protect the right to vote, to regulate elections for Federal office, to prevent and remedy discrimination in voting, and to defend the Nation’s democratic process,” the legislation reads.

The Democrats’ legislation also mandates that every state allow mail-in ballots to arrive and be counted up to 10 days after Election Day, tempting the type of chaos from the 2020 presidential election when a few states made allowances that delayed results in several states for nearly a week.

“The proposal would not only rig the elections; it would rig the litigation,” said J. Christian Adams, founder of the Public Interest Legal Foundation’s Election Law Center. “It just shows you the whole thing is about rigging a system.”

The Democrats’ overhaul also takes authority away from state legislatures on redistricting and requires every state to create an independent commission to draw congressional district lines.

The law does not specify who in the state will create the commission. However, in states that already use redistricting commissions rather than legislatures to draw district maps, the secretary of state’s office has the responsibility.

Conservatives say the Constitution explicitly bestows the power of drawing congressional districts on states and Congress can’t mandate how a state redraws congressional district lines.

“The Constitution gives the authority to do that to state legislatures,” said Hans von Spakovsky, a former member of the Federal Election Commission and senior fellow at The Heritage Foundation. “It is problematic for Congress to suddenly say state legislatures don’t get to do this.”

Liberals disagree. Mr. Noti said Congress has mandated the drawing of districts for congressional elections for generations.

“It’s a law of Congress that requires congressional districts to be single-member districts. That’s a federal law, not a state law,” he said. “Sticking just to the constitutional criticism, they strike me as pretty uniformly weak.”

Sen. Jeff Merkley, Oregon Democrat, said the legislation is legal and lawmakers have a duty to pass it and help Americans overcome barriers to voting.

“Every member of the Senate took an oath of office to defend the Constitution, and that means all 100 of us should be working to defend access to the ballot box,” he said. “It is our responsibility to ensure the ability of every American citizen to participate in the elections.”

After passing the House earlier this month, the legislation is moving through the Senate, where a 50-50 split between Democrats and Republicans presents a perilous path for most legislation.

House Democrats, particularly liberals, are increasing pressure on Senate Democrats to rewrite rules to force the legislation through the chamber on a party-line vote.

“This is really going to be Armageddon in the Senate,” said Michael E. Toner, a former chairman of the Federal Election Commission. “This is a Democratic wish list to stay in office.”

Senate Majority Leader Charles E. Schumer, New York Democrat, introduced the bill in the upper chamber last week. He said it is needed to counter “racist” Republican-backed legislation in swing states that would suppress voter turnout. He pointed to a proposal in Georgia that would eliminate early voting on Sundays.

“It is to prevent African Americans from voting,” Mr. Schumer said. “It is not democracy when you disenfranchise people by passing Jim Crow laws. That’s not democracy; that’s dictatorship, and that’s where our Republican friends seem to be going.”

The Democrats’ legislation sets the stage for more revisions to election laws.

It orders a study of voter turnout in localities that allow residents younger than 18 to participate in some elections, suggesting Democrats are gearing up to lower the federal voting age.

The bill would require states to accept voter registration requests from anyone 16 and older.

Conservatives warn that allowing voters younger than 18 to participate in federal elections would tempt fraud. Registration rolls at polling places do not specify which voters are younger than 18, and some jurisdictions prohibit the request of photo IDs to review ages and other information.

The elections package also calls for overturning the Supreme Court’s Shelby County v. Holder ruling, which eliminated part of the Voting Rights Act of 1965 that required Southern states to get federal permission when implementing election laws, and Citizens United v. Federal Election Commission, which ended limits on political spending by corporations.

Though the act doesn’t specifically overturn the Supreme Court’s rulings, it lays out the reasons why they are problematic.

In the section targeting Citizens United, the bill blasts big money in politics and urges Congress to amend the Constitution to allow states to set limits on money used to influence elections.

To address the high court’s ruling in Shelby County, the bill says at least 10 federal courts have found intentional discrimination in elections since the decision was handed down, suggesting the problem persists.

The legislation references the John Lewis Voting Rights Advancement Act enacted in 2019, which “would restore and modernize the Voting Rights Act, in accordance with language from the Shelby County decision.”

The John Lewis Act, championed as part of this major legislation, would renew a federal review process for election law and voting requirement changes nationwide.

Democrats also included a provision to require presidential and vice presidential candidates to disclose their tax returns. If the candidates don’t comply, then the Treasury secretary would be required to make the information public.

In a measure far removed from election law, the bill imposes a code of ethics for the Supreme Court. Currently, only lower federal courts operate with codes of ethics.

Conservatives said policing the Supreme Court would violate the Constitution’s separation of powers and aims to challenge Republican appointees over their speaking engagements at events hosted by conservative and libertarian groups.

Mr. Levey said left-wing activists file complaints claiming conservative justices violate ethics by speaking at events hosted by the Federalist Society, a conservative and libertarian group that advocates for a textualist and originalist interpretation of the Constitution.

“Given that the left uses that tool much more than the right, I’m sure putting some backbone behind it … will work to the left’s favor,” Mr. Levey said.

Democratic appointees would not be immune. Complaints could be filed against them too for speaking at events hosted by liberal organizations.

Fix the Court, a group that has long championed a code of ethics for the high court and increased transparency, conducted a poll in 2018 that found 86% of Americans support the idea.

“Even as some detractors have noted that a conduct code would not be fully enforceable at the Supreme Court, given there’s no real recourse for noncompliance, I still believe there’s inherent value in what it symbolizes,” said Gabe Roth, Fix the Court’s executive director.

Two provisions of the sprawling bill do not run into much pushback from conservatives. One makes Election Day a legal public holiday, and the other requires that all voting machines be made in America.

Still, a group of Republican senators introduced legislation, the Protect Electoral College Act, which would guarantee authority to state legislatures on setting election laws.

“The Constitution is very clear in Article II Section 1, that state legislatures have the sole responsibility for setting the election laws. They are directly responsible to their state’s voters,” said Sen. Bill Hagerty, Tennessee Republican.

He said the Democrats’ For the People Act is a “power grab.”

“They want to take all of that away through an absolute power grab by incentivizing dangerous behavior: internet registration, no photo ID requirement, automatic felon voting. One of the things that concern me the most is the ability for people to ballot-harvest. It’s going to create a lot more concern about the election at a time when we need to be creating more confidence in our elections,” Mr. Hagerty said.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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