The President and the Republican Congress are looking to make it harder for people to vote. From attacks on Voting by Mail, Arbitrarily Changing Postal Deadlines prior to elections, Partisan Gerrymandering, Redistricting to Create New Districts, pushing Congress to pass the ‘SAVE’ Act necessitating Documentary Evidence, Voter ID, Voter Roll Purging and more inconveniences to cast one’s vote. All of it crafted to dissuade voters from engaging in their constitutional right to vote, disempowering and disengaging individuals from American Democracy.
Can an “Executive” Make the Voting Rules?
Importantly, the procedures behind voting cannot be changed by Executive Fiat - or as we’ve come to know as Executive Orders (EO’s). Under the US Constitution, Congress must act to implement any new regulations and changes. As discussed in this interview, Congress has the power - not the President on voting regulations - and state rules govern the time place and manner of voting within their borders. This all means that a president does not have the power to ‘Nationalize Voting’ - no matter how fervently that president may claim it to be his right to do so. The Elections Clause, Article I of the US Constitution makes this all clear.
Article I, Section 4, Clause 1 - States and Elections Clause:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
Under Article I of the US Constitution, it is within the province of each of the states to determine the time, place and manner of elections, and Congress the regulation thereof.
Equal Protection and the Fundamental Right to Vote
Fourteenth Amendment, Section 1 - Voting Rights:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The US Supreme Court has reviewed voter qualification laws, and has invalidated excessive state durational residency and poll tax requirements; at the same time, the high court has upheld state requirements that voters present government-issued photo identification. But race-based disqualification is strictly prohibited, and noncitizens do not have the right - and rarely try to do so, despite what some may claim.
Gerrymandering Your District
Notably, race-based gerrymandering gets the highest level of Constitutional scrutiny by Courts and is prohibited. However, proving the motive of state legislatures in drawing district lines is hard to prove, as any motive to change district lines is often hidden under the guise of partisan gerrymandering. The US Supreme Court has routinely deemed partisan gerrymandering an acceptable form of redistricting, and Constitutional.
Ballot Access - Who Gets to Be On Your Ballot?
With regard to “ballot access” and state requirements for getting one’s name on a ballot, the high Court has determined that if there are reasonable, nondiscriminatory restrictions on getting a candidate’s name on a ballot, that will trigger a less exacting constitutional review than requirements that appear discriminatory or “race-based” - which gets the highest level of constitutional scrutiny. Currently, voting rights cases are before the US Supreme Court, and decisions are pending pertaining to whether Section 2 of the Voting Rights Act remains intact.
To learn more about ‘Making Your Vote Count’ - Watch this Interview with Voting & Gerrymandering Scholar - Walter K. Olson, Sr. Fellow at the Cato Institute's Robert A. Levy Center for Constitutional Studies, Washington, DC.
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