Vice President Pence penned an op-ed in the Washington Post calling the voting rights bill sitting in congress right now a “power grab,” that “nationalizes” elections. He goes on to state that the founding fathers wisely left voting rights and elections in the hands of the state. On this last point he is not wrong.
But let’s start with the first argument, that this is a nationalizing power grab.
Article VI, paragraph two of the Constitution states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…”
Simply: the Constitution trumps every other law and federal laws that are under Constitutional authority. A state cannot make a law that is in opposition to the Constitution or one of its amendments.
The “power grabbing” bill in Congress centers around enforcement of the 15th amendment, which in its entirety reads:
Section 1 The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2 The Congress shall have the power to enforce this article by appropriate legislation.
The amendment does not lay out how these rights may be denied or abridged, merely that they may not be.
In the 19th and 20th centuries these rights were denied by requiring literacy tests and poll taxes, among other Jim Crow era laws. That was not a universal method of restricting rights — most Americans would pass a literacy test today regardless of race — but it was an effective way at that time to keep black Americans from voting.
Today we use different methods to deny or abridge rights, but they are no less real. To place voting precincts in places that are difficult for certain classes of people to go to; to require forms of ID that certain people are less likely to have (or need, except to vote); to restrict voting hours to times that require certain people to forgo wages to vote, how is this any different than a 21st century poll tax?
As Section 2 as the amendment makes clear, Congress has the power to enforce the 15th amendment. A bill to protect voting rights is hardly a power grab.
Let’s examine the Vice President’s second objection, that the founding fathers left elections to the states. They did and they didn’t.
Article I, Section 3 “nationalized” senatorial elections when it required that state legislatures elect senators, it did not give states the choice of direct election.
To the extent that the founding fathers did not require states to have specific voting rules it resulted the following consequences:
- Most states did not allow women to vote
- Most states did not allow people of color to vote
- Most states did not allow men without real estate to vote
- No state was allowed to let citizens directly elect senators
As late as the 1820s John Adams, James Madison, James Monroe and John Marshall were all involved in state-level conventions that limited voting rights in their respective states.
It would take the 15th, 17th, 19th, 24th amendments and the Voting Rights Act to extend suffrage to all citizens over the age of 18.
Vice President Pence is indeed on the same footing with many of the founding fathers when he wants to allow states the right to deny the right of suffrage.
It is not a constitutional view today, nor a flattering place to stand with the founding fathers.
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If Pence had kept the definition of “power grab,” to the removal of the filibuster he would have more solid grounds. While it is a constitutional right of the senate to set their own rules (Article 1, Section 5, paragraph 2) it is a rule that has kept both parties in check over the years.
But he did not restrict his view to such, so I will have no more to say on it.
