Madam Speaker, recently, another friend of ours and our colleague, Congressman Burgess Owens, who grew up in the Jim Crow South, testified before my committee, and I want to highlight two very important points he made: Not only is our…
Madam Speaker, recently, another friend of ours and our colleague, Congressman Burgess Owens, who grew up in the Jim Crow South, testified before my committee, and I want to highlight two very important points he made: Not only is our country not facing a new era of Jim Crow voting laws, as many of my Democrat colleagues have falsely claimed, but it is incredibly offensive to lie to the American people to further a political agenda.
Our country has come a long way since the Jim Crow era, and it is in part because of the Voting Rights Act of 1965.
More Americans voted in the last two elections than in any midterm or Presidential election in our Nation's history. This includes historic turnouts among African Americans and other minority voters.
We should celebrate this progress, not ignore it.
Using Georgia as an example, since my friends on the other side of the aisle were so quick to condemn new election integrity laws in this State; in Georgia, which was once covered under the VRA's preclearance formula, African-American turnout in the last election was 64 percent, compared to 27 percent in 1965. And an amazing 95 percent of the total eligible voting-age population in Georgia is registered to vote.
That is incredible. It is easier to vote in Georgia than it is in Democrat-run States like New York and Delaware and even others.
Democrats on the Committee on House Administration held hearing after hearing on election issues where they produced zero evidence of voter suppression, likely due to the fact that voter discrimination and suppression remain against the law in this country.
Yet, the bill before us goes far beyond the original VRA and would subject every State to preclearance, an extraordinary measure established in 1965 to prevent Democratic-led Southern States, with a history of discrimination, from intimidating and preventing African Americans from voting.
If you vote for this legislation, you are voting for a Federal takeover of elections; you are removing the people elected at the State and local level to run elections from making decisions about how elections are run, including voter ID laws, and putting an unaccountable, unelected election czar at the DOJ, the Attorney General, in charge of all election decisions in this country.
Members of this body and the American people should be asking the simple question: If it is easier to vote today than at any time in our history and more Americans are voting than ever before, then why are Democrats going to such extreme measures to ensure a Federal takeover of elections?
I hope my colleagues and the American people will see this bill for what it is, a partisan power grab which circumvents the people to ensure a one-party rule.
I urge a ``no'' vote on the underlying legislation.
Madam Speaker, I include in the Record a report I released as ranking member of the House Administration Committee earlier this month titled ``The Elections Clause: States' Primary Constitutional Authority Over Elections.''
[From Representative Rodney Davis (IL-13), Ranking Member, House of
Representatives, Committee on House Administration, Aug. 12, 2021]
Report--The Elections Clause: States' Primary Constitutional Authority
Over Elections
Executive Summary
Republicans believe that every eligible voter who wants to
vote must be able to do so, and all lawful votes must be
counted according to state law. Through an examination of
history, precedent, the Framers' words, debates concerning
ratification, the Supreme Court, and the Constitution itself,
this document explains the constitutional division of power
envisioned by the Framers between the States and the federal
government with respect to election administration. Article
1, Section 4 of the Constitution explains that the States
have the primary authority over election administration, the
``times, places, and manner of holding elections''.
Conversely, the Constitution grants the Congress a purely
secondary role to alter or create election laws only in the
extreme cases of invasion, legislative neglect, or obstinate
refusal to pass election laws. As do other aspects of our
federal system, this division of sovereignty continues to
serve to protect one of Americans' most precious freedoms,
the right to vote.
The Constitution reserves to the States the primary
authority to set election legislation and administer
elections--the ``times, places, and manner of holding of
elections''--and Congress' power in this space is purely
secondary to the States' power. Congress' power is to be
employed only in the direst of circumstances. Despite
Democrats' insistence that Congress' power over elections is
unfettered and permits Congress to enact sweeping legislation
like H.R. 1, it is simply not true. History, precedent, the
Framers' words, debates concerning ratification, the Supreme
Court, and the Constitution itself make this exceedingly
clear.
The Framing Generation grappled with the failure of the
Articles of Confederation, which provided for only a weak
national government incapable of preserving the Union. Under
the Articles, the States had exclusive authority over federal
elections held within their territory; but, given the
difficulties the national government had experienced with
State cooperation (e.g., the failure of Rhode Island to send
delegates to the Confederation Congress), the Federalists,
including Alexander Hamilton, were concerned with the
possibility that the States, in an effort to destroy the
federal government, simply might not hold elections or that
an emergency, such as an invasion or insurrection, might
prevent the operation of a State's government, leaving the
Congress without Members and the federal government unable to
respond. Indeed, as counsel for the Democrat Members of our
Committee so keenly observed:
For the Founders, particularly during the Federal
Constitutional Convention, the primary concern was informing
the discussions of federal elections in Article I was the
risk of uncooperative states. For example, Alexander Hamilton
noted that by providing states the authority to run
congressional elections, under Article I, Section 4,
``risk[ed] `leaving the existence of the Union entirely at
their mercy.' '' Following the failings of the Articles of
Confederation, the Founders looked for processes that would
insulate Congress from recalcitrant states. Indeed, ``[t]he
dominant purpose of the Elections Clause, the historical
record bears out, was to empower Congress to override state
election rules, not to restrict the way States enact
legislation[,]'' and that ``the Clause `was the Framers'
insurance against the possibility that a State would refuse
to provide for the election of representatives to the Federal
Congress.' ''
Quite plainly, Alexander Hamilton, a leading Federalist and
proponent of our Constitution, understood the Elections
Clause as serving only as a sort of emergency fail-safe, not
as a cudgel used to nationalize our elections process.
Writing as Publius to the people of New York, Hamilton
further expounds on the correct understanding of the
Elections Clause: ``T[he] natural order of the subject leads
us to consider, in this place, that provision of the
Constitution which authorizes the national legislature to
regulate, in the last resort, the election of its own
members.''
When questioned at the States' constitutional ratifying
conventions with respect to this provision, the Federalists
confirmed this understanding of a constitutionally limited,
secondary congressional power under Article 1, Section 4:
Maryland: ``[C]onvention delegate James McHenry added that
the risk to the federal government [without a fail-safe
provision] might not arise from state malice: An insurrection
or rebellion might prevent a state legislature from
administering an election.''
N. Carolina: ``An occasion may arise when the exercise of
this ultimate power of Congress may be necessary . . . if a
state should be involved in war, and its legislature could
not assemble, (as was the case of South Carolina and
occasionally of some other states, during the [Revolutionary]
war).''
Pennsylvania: ``Sir, let it be remembered that this power
can only operate in a case of necessity, after the factious
or listless disposition of a particular state has rendered an
interference essential to the salvation of the general
government.''
John Jay made similar claims in New York. And, as
constitutional scholar Robert Natelson, notes in his
invaluable article, The Original Scope of the Congressional
Power to
Regulate Elections, Alexander Contee Hanson, a member of
Congress whose pamphlet supporting the Constitution proved
popular, stated flatly that Congress would exercise its
times, places, and manner authority only in cases of
invasion, legislative neglect or obstinate refusal to pass
election laws [providing for the election of Members of
Congress], or if a state crafted its election laws with a
`sinister purpose' or to injure the general government.''
Cementing his point, Hanson goes further to decree, ``The
exercise of this power must at all times be so very
invidious, that congress will not venture upon it without
some very cogent and substantial reason.'' In Floor debate
during the 117th Congress concerning H.R. 1, the Democrats'
intended nationalization of elections, Ranking Member Davis
argued, as he has many other times, that:
According to Article 1, Section 4 of the Constitution,
States have the primary role in establishing ``[t]he Times,
Places and Manner of holding Elections for Senators and
Representatives.'' Under the Constitution, Congress has a
purely secondary role in this space and must restrain itself
from acting improperly and unconstitutionally. Federal
election legislation should never be the first step and must
never impose burdensome, unfunded federal mandates on state
and local elections officials. When Congress does speak, it
must devote its efforts only to resolving highly significant
and substantial deficiencies. State legislatures are the
primary venues to correct most issues.
In fact, had the Democrats' view of the Elections Clause
been accepted at the time of the Constitution's drafting--
that is, that it offers Congress unfettered power over
federal elections--it is likely that the Constitution would
not have been ratified or that an amendment to this language
would have been required. Indeed, at least seven of the
original 13 states--over half and enough to prevent the
Constitution from being ratified--expressed specific concerns
with the language of the Elections Clause. However,
``[l]eading Federalists . . .'' assured them, ``. . . that,
even without amendment, the [Elections] Clause should be
construed as limited to emergencies.''
Three states, New York, North Carolina, and Rhode Island,
specifically made their ratification contingent on this
understanding being made express:
New York: ``Under these impressions and declaring that the
rights aforesaid cannot be abridged or violated, and the
Explanations aforesaid are consistent with the said
Constitution, And in confidence that the Amendments which
have been proposed to the said Constitution will receive
early and mature Consideration: We the said Delegates, in the
Name and in [sic] the behalf of the People of the State of
New York Do by these presents Assent to and Ratify the said
Constitution. In full Confidence . . . that the Congress will
not make or alter any Regulation in this State respecting the
times places and manner of holding Elections for Senators or
Representatives unless the Legislature of this State shall
neglect or refuse to make laws or regulations for the
purpose, or from any circumstance be incapable of making the
same, and that in those cases such power will only be
exercised until the Legislature of this State shall make
provision in the Premises[.]''
N. Carolina: ``That Congress shall not alter, modify, or
interfere in the times, places, or manner of holding
elections for senators and representatives, or either of
them, except when the legislature of any state shall neglect,
refuse or be disabled by invasion or rebellion, to prescribe
the same.''
Rhode Island: ``Under these impressions, and declaring,
that the rights aforesaid cannot be abridged or violated, and
that the explanations aforesaid, are consistent with the said
constitution, and in confidence that the amendments hereafter
mentioned, will receive an early and mature consideration,
and conformably to the fifth article of said constitution,
speedily become a part thereof; We the said delegates, in the
name, and in [sic] the behalf of the People, of the State of
Rhode-Island and Providence-Plantations, do by these
Presents, assent to, and ratify the said Constitution. In
full confidence . . . That the Congress will not make or
alter any regulation in this State, respecting the times,
places and manner of holding elections for senators and
representatives, unless the legislature of this state shall
neglect, or refuse to make laws or regulations for the
purpose, or from any circumstance be incapable of making the
same; and that [i]n those cases, such power will only be
exercised, until the legislature of this State shall make
provision in the Premises[.]
This clearly demonstrates that the Framers designed and the
ratifying States understood the Elections Clause to serve
solely as a protective backstop to ensure the preservation of
the Federal Government, not as a font of limitless power for
Congress to wrest control of federal elections from the
States.
This understanding was also reinforced by debate during the
first Congress that convened under the Constitution. ``During
the first session of the First Congress . . . Representative
Aedanus Burke unsuccessfully proposed a constitutional
amendment to limit the Times, Places and Manner Clause to
emergencies.'' But those on both sides of the Burke amendment
debate already understood the Elections Clause to limit
Federal elections power to emergencies.
For example, the recorded description of opponent
Representative Goodhue's comments notes that he believed the
Elections Clause as written was intended to prevent ``. . .
the State Governments [from] oppos[ing] and thwart[ing] the
general one to such a degree as finally to overturn it. Now,
to guard against this evil, he wished the Federal Government
to possess every power necessary to its existence.'' With any
change to the original text therefore unnecessary to achieve
Burke's desired goal, Mr. Goodhue voted against the proposed
amendment.
Similarly, proponent Representative Smith of South Carolina
also believed the original text of the Elections Clause
already limited the Federal Government's power over federal
elections to emergencies and so thought there would be no
harm in supporting an amendment to make that language
express. So, even the records of the First Congress reflect a
recognition of the emergency nature of congressional power
over federal elections.
Similarly, the Supreme Court has supported this
understanding. In Smiley v. Holm, the Court held that Article
1, Section 4 of the Constitution reserved to the States the
primary
``. . . authority to provide a complete code for
congressional elections, not only as to times and places, but
in relation to notices, registration, supervision of voting,
protection of voters, prevention of fraud and corrupt
practices, counting of votes, duties of inspectors and
canvassers, and making and publication of election returns;
in short, to enact the numerous requirements as to procedure
and safeguards which experience shows are necessary in order
to enforce the fundamental right involved. And these
requirements would be nugatory if they did not have
appropriate sanctions in the definition of offenses and
punishments. All this is comprised in the subject of ``times,
places and manner of holding elections,'' and involves
lawmaking in its essential features and most important
aspect.''
This holding, of course, is consistent with the
understanding of the Elections Clause since the framing of
the Constitution. The Smiley Court also held that while
Congress maintains the authority to ``. . . supplement these
state regulations or [to] substitute its own[ ]'', such
authority remains merely ``a general supervisory power over
the whole subject.'' More recently, the Court noted in
Arizona v. Inter-Tribal Council of Ariz., Inc. that ``[t]his
grant of congressional power [that is, the fail-safe
provision in the Elections Clause] was the Framers' insurance
against the possibility that a State would refuse to provide
for the election of representatives to the Federal
Congress.'' The Court explained that the Elections Clause ``.
. . imposes [upon the States] the duty . . . to prescribe the
time, place, and manner of electing Representatives and
Senators[.]'' And, while, as the Court noted, ``[t]he power
of Congress over the `Times, Places and Manner' of
congressional elections `is paramount, and may be exercised
at any time, and to any extent which it deems expedient; and
so far as it is exercised, and no farther, the regulations
effected supersede those of the State which are inconsistent
therewith[ ]'', the Inter-Tribal Court explained, quoting
extensively from The Federalist no. 59, that it was clear
that the congressional fail-safe included in the Elections
Clause was intended for the sorts of governmental self-
preservation discussed in this Report: ``[E]very government
ought to contain in itself the means of its own
preservation[.]''; ``[A]n exclusive power of regulating
elections for the national government, in the hands of the
State legislatures, would leave the existence of the Union
entirely at their mercy. They could at any moment annihilate
it by neglecting to provide for the choice of persons to
administer its affairs.''
Conclusion
It is clear in every respect that the congressional fail-
safe described in the Elections Clause vests purely secondary
authority over federal elections in the federal legislative
branch and that the primary authority rests with the States.
Congressional authority is intended to be, and as a matter of
constitutional fact is, limited to addressing the worst
imaginable issues, such as invasion or other matters that
might lead to a State not electing representatives to
constitute the two Houses of Congress.'' Our authority has
never extended to the day-to-day authority over the ``Times,
Places and Manner of Election'' that the Constitution clearly
reserves to the States. Unfortunately for Democrats, this
clear restriction on congressional authority means that we do
not have the power to implement the overwhelming majority--if
not the entirety--of their biggest legislative priority, H.R.
1 and related legislation, which would purport to nationalize
our elections and centralize their administration in
Washington, D.C. Thankfully, the Framers had the foresight to
write our Constitution so as to prevent those bad policies
from going into effect and preserve the health of our
republic.
Madam Speaker, I have a joint report from the Committee on House Administration and the Committee on the Judiciary Republicans titled ``An Unprecedented and Unconstitutional Power Grab: How Democrats are Abusing the Constitution to Nationalize Elections.''
Madam Speaker, I have the Census Bureau report detailing record turnout in 2020; the Election Integrity Network H.R. 4 fact sheet; the Honest Election Project analysis titled ``H.R. 4 Legal and Constitutional Challenges''; the Independent Women's Forum analysis titled ``D.C. Bureaucrats and Judges Will Steal the Pen in Drawing Voting Districts''; and also the Foundation for Government Accountability analysis titled ``H.R. 4 Isn't Voting Progress. It is a Power Grab.''
Madam Speaker, I have the following reports: an analysis of H.R. 4 titled ``How H.R. 4 Would Let Leftist Extremists Control the Entire Nation's Elections''; the Lawyers Democracy Fund H.R. 4 analysis; a RealClear Politics article titled ``'Jim Crow 2.0' Is Imaginary''; a letter opposing H.R. 4 from the Independent Women's Forum and others; a Heritage analysis titled ``Another Bill in Congress to Give Partisan Bureaucrats Control Over State Election Laws''; and lastly, the Honest Elections Project Action analysis titled ``H.R. 4: The Nancy Pelosi Power Grab.''
Madam Speaker, a foundational dependency of any democracy sustaining is its citizens having confidence in the outcome of its elections. Simply put, if people don't have faith in elections, democracy doesn't work.
According to a recent Gallup poll, America's confidence in our elections has decreased by 20 percent since 2009. Ensuring that our elections are run in a way that makes it easy to vote and hard to cheat increases confidence. A common best practice to ensure election integrity are voter IDs, a way for people to prove they are who they say they are.
For Democrats to equate this with the poll taxes of the early 20th century is a ludicrous, false equivalency. According to the Honest Elections Project, 77 percent of all Americans support voter ID requirements, including 75 percent of independents, 64 percent of African Americans, and 76 percent of low-income voters.
Knowing that, what does the majority do? They include language in H.R. 4 that would restrict commonsense voter ID requirements and require the judicial branch to consider voter ID laws as evidence of voter suppression, and by extension, racism. That doesn't restore faith in elections.
H.R. 4, as introduced, would require preapproval by an unaccountable election czar in the Biden DOJ before any State or locality under preclearance could enact popular, commonsense voter ID laws. H.R. 4 goes even further, requiring almost a dozen States to have their existing voter ID laws examined by the Biden DOJ before they can continue to be enforced.
These are the same election integrity laws that have been in place for years. This is a partisan power grab of maintaining control.
Madam Speaker, if we adopt the motion to recommit, we will instruct the Committee on the Judiciary to consider my amendment to H.R. 4 to strike from the bill the provisions that penalize State and local governments who implement commonsense voter ID requirements.
Madam Speaker, I ask unanimous consent to insert the text of my amendment in the Record immediately prior to the vote on the motion to recommit.
Madam Speaker, I have a motion to recommit at the desk.
Madam Speaker, on that I demand the yeas and nays.