States’ Rights and Federal Elections
The infuriating thing about American democracy is all the ways in which it has been contorted out of being a legitimate democracy. The weird thing about our democracy is that, just when you think you have handle on who benefits from these contortions, the scene shifts and a whole new gang of aggrieved party’s pounce.
In the red/blue bifurcated view of the United States, we are accustomed to thinking of states’ rights as the battle call of the political right, their persistent plea to tear down any aspect of the Federal Government they do not like. (How they support Federal intrusion on the issues they do like is another matter…) It is, therefore, interesting that Colorado has staked a gutsy position on states’ rights in determining that former President Trump participated in an insurrection, and therefore is ineligible to run for office according to Section 3 of the Fourteenth Amendment.
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
The case has landed in the Supreme Court, and if the arguments and questions posed before the court bear any reflection on the outcome, Trump will likely be allowed on the ballot in every state. Avid court watchers are keen to discover how broad the decision will be: i.e. was January 6 an insurrection, and did Trump participate, or can he be allowed on the ballot through some narrower reading? Regardless of how the Court slices the situation, I’m sure they will miss the essential mark, which is this: states have no place establishing the criteria for federal elections.
Several years ago I wrote about this fundamental flaw in our Constitution. The criteria for federal elections should be determined at a federal level, and should apply equally across all states. Every aspect of a federal election should be handled by the Federal Government, from the configuration of Congressional districts, to voter registration requirements, all the way down to distribution of polling places, voting hours, and absentee/drop-off regulations. Whether states decide to model their own election requirements on the federal model, even whether they hold their elections on the same date, is up to the states. But the criteria and requirement for voting for US Congressional Representatives, Senators, and the President, should be uniform across the entire country.
I’ve heard from folks — mostly from blue states — who think the idea is a good one so long as the voting requirements are generous. Although I support whatever voting rules enhance participation (it would be so simple to follow Hawaii’s lead with 100% mail-in voting and the highest voter participation in the nation). However, the concept of federal elections being regulated by federal standards should be in place regardless of what those particular standards are. If Congress enacts standards that are restrictive, they could be changed — nationally — by electing representatives who enact such changes. Regardless of specific voting regulations, the entire system would be fairer.
I look forward to learning how the Supreme Court rules on the Colorado case, if only from an intellectual perspective, because I’m convinced they are not going to address the underlying problem: that federal elections should be uniform, federally drafted, and federally implemented.
