Fact check: GOP falsely claims the Constitution prohibits voting rights legislation

Congressional Republican opponents of voting rights legislation are misleadingly citing a section of the U.S. Constitution to suggest regulating elections is entirely a matter of state’s rights. However, the power to stop race-based voter suppression is expressly given to Congress.

Senate Republicans have been filibustering the John Lewis Voting Rights Advancement Act of 2021, which passed the House in a party-line vote in August and which would restore requirements that states and localities with a recent history of voter suppression based on race obtain advance permission from the U.S. Department of Justice for any voting and election rule changes, a process known as preclearance.

The formula used to enforce such requirements, originally contained in the Voting Rights Act of 1965 and renewed several times since, was struck down by the U.S. Supreme Court in 2013 in its ruling in Shelby County v. Holder.

In addition to claiming that the John Lewis Voting Rights Advancement Act is unnecessary and a waste of time, GOP lawmakers recently have begun falsely claiming that the Constitution does not permit the federal government to legislate voting rights at all.

“The Constitution gives states control of elections, out of the hands of power hungry DC politicians,” claimed Arizona Rep. Paul Gosar.

“The Constitution grants states, NOT [House Speaker Nancy] Pelosi, the authority to run their elections,” wrote Nebraska Rep. Don Bacon.

Sen. Jim Inhofe of Oklahoma tweeted, “After two unsuccessful attempts last session to bring so-called voting rights legislation to the floor, Democrats are moving forward on yet another bill that would put the federal government in charge of something the Constitution has explicitly left to the states.”

The Republicans’ argument centers on a provision in Article I of the Constitution, which sets the rules for how federal elections are to be run.

On Tuesday, Rep. Buddy Carter (R-GA) cited a portion of the provision, tweeting, “States, not the federal government, control elections: ‘The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof’ – Article I, Section 4, Clause 1.”

University at Buffalo School of Law professor James A. Gardner told the American Independent Foundation that Carter “has omitted the last phrase, which says ‘but the Congress may at any time by Law make or alter such Regulations, except as to the Place of chusing Senators.'” Gardner noted, “That last qualification is an artifact of the original method of senatorial selection, in which US Senators were appointed by state legislatures; the qualification prevents Congress from attempting to undermine state selection by requiring senators to be chosen someplace other than the state capital, where the state legislature sits.”

Carter’s and his colleagues’ arguments also ignore the 15th Amendment to the Constitution, ratified in 1870, which provides that 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 of the amendment reads, “The Congress shall have power to enforce this article by appropriate legislation.”

Sen. Mitt Romney (R-UT) tweeted Sunday, “Democrats are attempting a federal takeover of our elections, which were deliberately left up to the states to keep autocracy from taking hold in America.”

Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund, quickly corrected him, tweeting, “@SenatorRomney, surely you are aware that Art 1 Sec 4 of the Constitution gives Congress the final authority on the time, place & manner of federal elections. And that the power to protect against racial discrimination in voting is assigned to Congress in Sec 2 of the 15th Amend?”

David S. Tanenhaus, a professor of history and law at the William S. Boyd School of Law at the University of Nevada, Las Vegas, told the American Independent Foundation on Tuesday:

The significance of the Reconstruction Era Amendments is that they all include congressional enforcement sections. For example, the 15th Amendment, which was ratified in 1870, states, “The Congress shall have the power to enforce this article by appropriate legislation.” Critics of federal voting rights legislation too often ignore the history of Reconstruction and the enforcement section of the 15th Amendment.

In 1965, Congress used that power to enact the provisions of the Voting Rights Act that sought to eliminate the longstanding barriers that had been erected to keep millions of Black Americans off the voting rolls.

The law was reauthorized and updated most recently in 2006, and previously enjoyed bipartisan support. The Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 passed 98-0 in the Senate and was signed by Republican President George W. Bush.

While the Supreme Court struck down the formula for enforcing preclearance as unconstitutional in 2013, the 5-4 majority in Shelby County v. Holder explicitly wrote that while it deemed the formula out of date and thus no longer permissible, “Congress may draft another formula based on current conditions.”

The John Lewis Voting Rights Advancement Act includes such a formula, one that is based on hundreds of documented examples of voting rights violations at the state and local level over just the past 25 years.

Published with permission of The American Independent Foundation.