Attention, Democrats: The Constitution Trumps the Filibuster

Four times during this past congressional session, Senate Republicans have blocked voting rights legislation. Democrats are currently trying to decide whether to use their shaky, one-vote majority to end or limit use of the filibuster in order to overcome Republican opposition and pass a voting rights reform bill. As usual, they are divided.

This time, however, here need be no dispute, for the filibuster should not be applicable or even relevant. The text, history, and judicial interpretation of Article 1 Section 4 of the Constitution, the “Election Clause,” decide this issue, and no procedural rule such as the filibuster—and probably not even a statute—can impose any limitation or additional requirements on what is in the Constitution: “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 choosing Senators.”

The inapplicability of a filibuster to this unique situation is not, however, a precedent for abolishing the filibuster entirely, or for a carve-out for other legislation.

In opposing the Democrats’ voting proposals, the Republicans initially argued that because the Constitution gives states the authority to regulate both state and federal elections, Congress cannot review what the states have enacted.

Nothing could be further from the truth. The “Election Clause” does authorize the states to regulate and administer federal elections, but immediately checks that authority by adding that “Congress may at any time by Law make or alter such Regulations.” For almost a century and a half—and as recently as 2013—the Supreme Court has made it clear that these “comprehensive words” in the Election Clause give Congress “plenary and paramount jurisdiction over the whole subject” of federal elections and authorize Congress to “alter those regulations or supplant them altogether…at any time, and to any extent which it deems expedient.” And Congress has often done so, most recently in the 2002 Help America Vote Act. That sweeping override authority was extended by the 14th, 15th, 19th, 24th, and 26th amendments to enforce antidiscrimination and voting rights in state elections.

The Democrats’ pending bills, based on a memorandum prepared by Senator Joe Manchin, are authorized by the Election Clause and the voting amendments. The clause is unique in its specificity and the broad scope it gives Congress to override state law, in order to preserve the free, fair, and equal voting and majority rule that are the life blood of what the framers called a “representative government.”

In 1787, there was no federal administrative apparatus to run the 1788 federal elections, so it made sense for “the Times, Places and Manner of holding elections for Senators and Representatives” to be turned over to the states. The Framers, however, had a very low opinion of state legislators and legislatures, and were particularly concerned that many state legislators were hostile to the national government.


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