“The Constitution’s Framers deliberately excluded Congress from deciding how presidential electors would be chosen,” wrote Indiana Attorney General Todd Rokita, a former member of the House, in a letter signed by 19 of his colleagues. “As Chief Justice Roberts noted with respect to congressional elections, the Framers ‘assign[ed] the issue to the state legislatures.’ ”
Just as President Donald Trump’s refusal to concede the 2020 election fueled Democratic momentum to pass H.R. 1, the arguments Trump made last year have lived on as the Republican case against the bill. In the floor debate and in lawsuits, Republicans argue that Article II, Section 1 of the Constitution empowered state legislatures, and only state legislatures, to change election procedures.
Under this theory, Congress can’t override states’ election laws. Neither can governors, secretaries of state or county clerks. Nor can judges — at least one of whom is being targeted by Republicans for removal from the bench. If Democrats pilot the bill through the Senate, where most are ready to end the filibuster and pass it, there probably would be a hunt by Republicans for a judge who can throw it out.
“We were very careful in drafting the bill to make clear what the sources of authority are that we're basing these reforms on,” said Rep. John Sarbanes of Maryland, the bill’s main sponsor in both sessions. “I would certainly expect Republicans to go into state courts and federal courts and find someone who’s willing to listen to their case. But we think we're on pretty strong ground here.”
The Democrats' bill would wipe out basically all restrictive state laws and standardize some broadly popular ideas that are most popular with liberals. Among them: automatic voter registration, same-day registration, no-excuse mail voting and making Election Day a federal holiday.
Republicans unanimously opposed the bill in 2019, but their messaging tended to focus on the bill’s public financing component, characterized as a gift to politicians. Senate Republican Leader Mitch McConnell (Ky.) accused Democrats of taking “the American people’s tax dollars” and pouring them “straight into more attack ads, yard signs and telephone calls.”
The updated bill included an attempt to snuff out that criticism, requiring public financing to be optional, as it is in most states and cities that offer it, and to be paid for not from general revenue but from a fund filled by fines on corporations.
But Republicans shifted their message, thanks to lessons learned from their attempts to overturn the 2020 election. Several of those lawsuits cited then-Chief Justice William Rehnquist’s brief argument, in Bush v. Gore, that states’ presidential electors were chosen “in such Manner as the Legislature thereof may direct.”
Numerous pro-Trump lawsuits argued that the language was that literal: Any election reform that didn’t get stamped by the state legislature was unconstitutional, and illegal. The term “illegal votes,” which evokes ballot-stuffing or fraud, was deployed by Republicans such as Rep. Mike Kelly of Pennsylvania to mean any ballot cast under a procedure that the legislature didn’t approve.
“It’s an argument that I take seriously, because it’s being made by serious lawyers in some instances,” said Marc E. Elias, the Democratic attorney who handled much of the party's pre- and post-election litigation. “But in the end, it turns into a caricature of an argument. It’s just not the case that a legislature is immune from determining whether a law is unconstitutional or not. If that was true you couldn’t strike down a literacy test, or a law that was racially discriminatory.”
Then and now, that standard happened to benefit Republicans. Republicans control the legislatures in the four states with the closest 2020 presidential results: Arizona, Georgia, Pennsylvania and Wisconsin. In the Pennsylvania and Wisconsin, Democratic governors have the power to veto legislation. In each state, Republicans controlled the last round of redistricting, in 2011, maximizing their political power so that anything less than a landslide Democratic win would keep them in power.
Democrats say they're skeptical the court would strike down an overhaul bill. “Just because you’re a state legislator doesn’t mean you get to take peoples’ civil rights away, and that includes the right to vote,” said Rep. Ruben Gallego of Arizona.
And in the past, the Supreme Court has seemed to agree. In 2015, a 5-to-4 Supreme Court majority rejected the argument that Arizona’s redistricting commission was usurping the power granted to state legislatures. It was the legislature, after all, that allowed that commission to exist.
“There is no suggestion that the Election Clause, by specifying ‘the Legislature thereof,’ required assignment of congressional redistricting authority to the State’s representative body,” Justice Ruth Bader Ginsburg wrote. “It is characteristic of the federal system that States retain autonomy to establish their own governmental processes free from incursion by the Federal Government.”
But Ginsburg was writing for the majority because Justice Anthony Kennedy joined her. He retired in 2018, and she died two years later, both of them replaced by Republicans who have yet to rule on substantive voting questions.
In the meantime, the idea that no other authority can tweak election laws, even in an emergency where a state legislature is out of session, has captured the GOP imagination. A wave of post-election legislation has devolved power away from secretaries of state; in Tennessee, Republicans have looked at removing Ellen Hobbs Lyle, a Nashville-area judge who sided with advocates who wanted access to mail voting expanded during the pandemic.
“What Chancellor Lyle did was illegally interfering our election process by trying to suspend state law and implement her own policies, which is blatantly against the law,” the chair of the Tennessee House’s elections committee told the Tennessean.
H.R. 1 is far from becoming law, but Republicans have adopted the same logic to attack it. In his first remarks of any kind since leaving the vice presidency, Mike Pence — who chaired Trump's aborted, post-2016 election commission — argued that Democrats were obviously violating the Constitution by trying to standardize federal election laws.
“Under the Constitution, elections are governed at the state level,” Pence wrote, “And each state is required to appoint presidential electors ‘in such Manner as the Legislature thereof may direct.’ ”
On the House floor and at last week's Conservative Political Action Conference, Republicans made the same argument, arguing that Democrats were not merely trying to implement changes that conservatives worried would increase election fraud, but that they were running over the Constitution to get there. The argument may keep playing out in court before the fate of H.R. 1 is known. And Democrats are watching with frustration, with activists pointing to the rush of red-state legislation to curtail voting reforms, warning that the party will have to fight the next election with wildly diverging rules from state to state, with more to come if they lose control of governors' mansions in 2022.
“You’d have some states that would have absentee ballot voting, early voting, automatic voter registration, and same-day registration, with penalties for voter suppression, and some states throwing up obstacles,” Sarbanes said. “And you'd have someone living in a state that's sort of repressive of voting rights, looking over their fence. Now, which scenario is better equipped to bring our country back together?”
“Transgender rights emerge as a growing political flash point,” by Matt Viser, Marianna Sotomayor and Samantha Schmidt
The latest social conservative backlash, one that the president was expecting.
“How Marjorie Taylor Greene won, and why someone like her can win again,” by Kaleigh Rogers and Geoffrey Skelley
Why publicity-hungry candidates are well positioned in partisan primaries.
“Donors gave a House candidate more than $8 million. A single firm took nearly half of it,” by Meagan Flynn and Michael Scherer
How much is a viral ad worth?
“23 candidates join the race to replace late U.S. Rep. Ron Wright,” by Patrick Svitek
The state of play in the swing-seat special election.
“Murkowski emerges as focus of Biden effort to find GOP support for his agenda,” by Seung Min Kim and Paul Kane
The 2022 Republican who sees upsides in working with Democrats.
“The one place House Republicans want to be Trump-free,” by Melanie Zanona and Ally Mutnik
How to support the ex-president without wishing doom on your incumbents who crossed him.
The progress of the “For the People Act.”
Facebook ended its months-long ban on political advertising today after pressure, lasting nearly as long as the policy, from candidates and free-speech advocates.
“We put this temporary ban in place after the November 2020 election to avoid confusion or abuse following Election Day,” the social media giant explained in a Thursday morning statement. “Unlike other platforms, we require authorization and transparency not just for political and electoral ads, but also for social issue ads, and our systems do not distinguish between these categories. We’ve heard a lot of feedback about this and learned more about political and electoral ads during this election cycle.”
Opposition to Facebook's move was bipartisan, and revealed how little control that political actors had over the company.
A similar drama is playing out now over the decision of AT&T and T-Mobile, two dominant cell carriers, to introduce 10 Digit Long Code, or 10DLC, at the start of next month. Allowed after a 2018 FEC decision, in the works for years, 10DLC allows some numbers to engage in high-volume texting, while seeking a way to crack down on spam.
That's a concern for some liberal groups, who massively ramped up their text outreach plans during the pandemic. In a letter released this week addressed to the White House and congressional leaders, a coalition including the NAACP, MoveOn and the American Federation of Teachers is calling on the telecoms to reconsider the policy and for Washington to act on it.
“These restrictions will limit the ability of advocacy nonprofits and labor unions to effectively communicate with their membership on local, state, and national levels to deliver urgent calls to action,” the groups wrote in their letter. “Advocacy groups fighting on the frontlines of democracy would not be permitted to text constituents with pertinent information detailing where and how to vote. As communities continue to navigate the complexities of COVID-19, 10DLC would prevent local governments from texting residents with key updates on vaccinations.”
At issue is the consent of people getting these organizations' texts and the unruliness of the texting system. Liberal groups weren't alone in sending texts to potential voters who had not specifically opted in for them; a controversy erupted last year over a Trump-linked firm mass-texting to ramp up turnout for a “stop the steal” rally. But the liberal groups are the first to warn of political damage if the new rules go into place as is.
“I think we would be pretty out of luck,” said Debra Cleaver, the CEO of VoteAmerica, which sent more than 100 million texts to voters last year. “I do not think, based on my experience dealing with telcos, that any part of this would be prompt or would be appropriate for something time sensitive. So I think that we would just be without a mechanism, and voters would suffer.”
Karen Carter Peterson, “Doesn't Mess Around.” Early voting in Louisiana's special election primaries starts on Saturday, and the two Democratic legislators in the race are running slightly different public messages despite agreeing on most issues. Peterson, who has the support of some national left-wing groups, pitches herself here as not just an effective legislator but an effective left-wing one. “Karen got Medicaid expansion done in Louisiana,” one voter says, and another one finishes the thought: “I know that in Congress, she can make Medicare-for-all a reality.”
Troy Carter, “Matters.” Carter, whose voting record largely resembles Carter Peterson's, has sold himself less as a liberal and more as a results-first Democrat focused on coronavirus recovery — and with the clout to deliver the goods. The message of this ad is that the state Democrats and ex-Rep. Cedric Richmond, a political ally who endorsed Carter right away, want him in Congress.
Kirk Cox, “Empowering Parents and Students.” Virginia Republicans will select their statewide ticket at a convention, not through a primary, a change that in the past has led to the nomination of more ideological candidates. But Cox, the GOP leader in the House of Delegates, is already running ads aimed at the more moderate voters he'll need to win in November. There's no red meat here, just a student thankful for Cox's support for capping state college tuition hikes. “Thanks to Kirk Cox, I know that my tuition won't be raised.”
Pete Snyder, “Tell Northam: Open Our Schools.” Less attention-grabbing than Amanda Chase, less wealthy than Glenn Youngkin, and less experienced than Cox, Snyder has based his campaign for weeks on the continuing closures of some Virginia schools, aiming at parents in the D.C. suburbs. The ad criticizes Gov. Ralph Northam for not demanding that schools open immediately. “Pete Snyder's plan: Stand up to the unions, open schools immediately,” a female narrator says. “Five days a week, every week, with a teacher in every classroom.”
Should the covid-19 relief payment of $1,400 be larger, should it be smaller, or is it about right? (Monmouth, 802 adults)
Should be larger: 28%
Should be smaller: 14%
About right: 53%
Direct payments constitute less than a quarter of the coronavirus package moving through the Senate, but nothing else has gotten a fraction as much attention. Monmouth went into the field before Democrats acceded to Sen. Joe Manchin of West Virginia, lowering the salary cap for check recipients from $100,000 to $80,000. That will exclude around 17 million people who got some level of stimulus from the Cares Act. Just 24 percent of Republicans said the income cap should be lowered, and just 22 percent of conservatives. That was by far the highest level of support for shrinking the number of people who'll get checks: 33 percent of Democrats and 29 percent of independents say they should be larger.
Filing closed yesterday in the race for Texas's 6th Congressional District, which became vacant upon the death of Republican Rep. Ron Wright. It's the most crowded race like this in years, with 11 Republicans and 10 Democrats putting in paperwork, joined by a Libertarian and an independent who calls himself a “constitutionalist.”
Susan Wright, the congressman's widow, has garnered wave after wave of endorsements, positioning herself as a conservative who'd vote just like her husband did. On Tuesday, she gave a friendly interview to Fox News, emphasizing her support for “strong national defense, strong borders, life and individual liberty,” but throwing no red meat. Asked about the Democratic agenda moving through Congress, Wright didn't decry anything in particular, but said the majority didn't have “Texas values” in mind.
Texas, pending the results of a delayed 2020 Census, is likely to gain at least three House seats next year, one of which would likely be carved out of the Dallas-Fort Worth region, which has jerked to the left since the last round of redistricting. The 32nd district, now held by Democratic Rep. Colin Allred, swung 25 points toward the Democrats since 2012, while the 6th District, on the other end of the metroplex, swung 14 points, narrowly sticking with Trump last year.
Wright, who got the endorsement of Hill Country Republican Rep. Chip Roy this week, will appear on the ballot with a combination of Trump White House veterans (Sery Kim and Brian Harrison), candidates who'd run and lost primaries for the seat before (Jake Ellzey and Jenny Garcia Sharon), a Republican critical of Trump (Michael Wood) and one Republican, Dan Rodimer, who ran and lost a race 1,000 miles away last year, near Las Vegas. Rodimer entered just hours before the filing deadline, drawing some mockery from fellow Republicans.
“Does Texas lack for fighters so badly that they need to import them from Nevada?” asked Rep. Matt Gaetz of Florida.
Democrats didn't do much to clear their field, either, with 2020 nominee Jana Lynne Sanchez facing off against nine lesser-known candidates. If no candidate clears 50 percent of the vote in the May election, the top two finishers will head to a runoff; the pileup of both major-party candidates raises the odds that a runoff might be limited to two candidates of the same party.
In the states
St. Louis held its first elections this week under a new “approval voting” system, designed to prevent spoiler candidates or wasted votes in the overwhelmingly Democratic city. Instead of casting a single vote, voters could mark their ballots for up to four mayoral contenders, with the top two vote-getters heading to a runoff. Both runoff contenders were women: Black city treasurer Tishaura Jones, who got 57 percent of all voters' support, and White city alderman Cara Spencer, who got 46 percent.
In Connecticut, Democrats held onto a state Senate seat Tuesday, retaining their supermajorities in Hartford; the same thing happened in a safe, blue state Senate seat in California and Alabama. Democrats also picked their candidate in a safe Massachusetts seat: Jeff Turco, a conservative Democrat who admitted to voting for Trump in 2016 (then for Biden in 2020), won out over more liberal contenders who split the vote.
Virginia's newly dominant Democrats, meanwhile, have a problem: There are three statewide offices to run for, and the best-known candidates for two of them (governor and attorney general) were first elected eight years ago. Former governor Terry McAuliffe is seeking his old job again, while Attorney General Mark Herring is seeking a third term.
On Thursday, Herring was dealt a surprise blow when Gov. Ralph Northam, a fellow Democrat, endorsed 31-year old Black state Del. Jerrauld C. “Jay” Jones over Herring. According to The Post's Gregory S. Schneider, Northam “made the endorsement more out of enthusiasm for Jones than bad feelings for Herring.” But doing so inevitably stirred memories of the 2019 scandal that nearly ended both Northam's and Herring's careers, as the governor rebuffed calls to resign over an old college photo purportedly showing him in blackface, and Herring admitted that he'd worn blackface for a college musical sketch.
Neither man resigned, and Democrats romped in elections held nine months later, giving the party full control of Richmond and unleashing a wave of long-blocked liberal legislation. Although Herring won his first term, in 2013, only after a recount, he immediately used the office to back off the state's previous opposition to same-sex marriage; he won a second term with 53 percent of the vote.
House Democrats passed H.R. 1, their “For the People” elections bill, late Wednesday night. Passage wasn't in doubt, nor was Republican opposition, but two of the party's left-most members used the vote to test support for two ideas on the frontier of the democracy reform movement: Re-enfranchising prisoners, and lowering the voting age to 16.
Neither idea got anywhere close to passage, but the latter, proposed by Rep. Ayanna Pressley of Massachusetts, got a majority inside the Democratic conference — 126 votes. Democrats who supported it came mostly from safe seats, with President Biden getting an average of 65.7 percent of the vote in their districts. The prison voting amendment, carried by Rep. Cori Bush of Missouri, got 97 votes, including nearly total support from the Congressional Black Caucus. Those members' districts gave Biden an average of 69.1 percent of the vote.
A good number of Democrats who opposed the Pressley amendment supported Bush's amendment, and vice versa. Rhode Island's delegation backed lowering the voting age, but not prison voting; nearly all of Illinois's and New York's delegations backed prison voting, but it was more divided on the voting age. Neither of those states allow prisoners to vote, and the delegations of the two states that do allow it — Maine and Vermont — cast risk-free votes for legalizing it nationally.
As a result, Rep. Jared Golden of Maine was the only Democrat in a district won by Trump to support prison voting. (Golden's largely rural electorate backed Trump by 10 points in 2016, then 7 points in 2020.) Take Golden out, and the most vulnerable member willing to support either measure was Rep. Vicente Gonzalez of Texas, who narrowly won reelection amid a surge toward Republicans in the Rio Grande Valley, including a 15-point swing in his seat.
Here's the baseline for both reforms — too hot to touch for most of the Democratic conference outside safe seats and majority-minority districts.
… 16 days until special House election primaries in Louisiana
… 58 days until the special election in Texas's 6th Congressional District
… 96 days until primaries in New Jersey and Virginia
… 110 days until New York City’s primary