The following was written by Convention of States Action President Mark Meckler and originally published on SelfGovern.com. To sign up for Mark's commentary straight to your inbox, click here and scroll down to "Get Email Updates."
The Democrats’ takeover of the state election process in H.R. 1 represents one of the worst instances of federal overreach in my lifetime. As I’ve explained elsewhere, the “Death of Democracy Act” would radically shift how elections are run in this country and decimate the states’ collective decision-making authority.
H.R. 1 is a massive power-grab that warrants an equally powerful response from limited-government conservatives. Fortunately, that’s exactly what the Founders gave us in Article V of the Constitution.
First, it’s important to understand how the Democrats are warping the Constitution to justify H.R. 1. As constitutional scholar and Article V expert Prof. Rob Natelson has pointed out, the Democrats defend their bill using three parts of our founding document: the Guarantee Clause, the Fourteenth Amendment, and the Elections Clause.
The Guarantee Clause is a non-starter. This portion of the Constitution guarantees to the states a republican form of government, but republics have never adopted any particular voting rules. The Fourteenth Amendment has more relevance, but it will take years and years of litigation to determine whether H.R. 1 exceeds Congress’s power under this amendment.
The Democrats’ strongest case for H.R. 1 rests on the Elections Clause. Prof. Natelson believes that much (though not all) of H.R. 1 can be justified under the Elections Clause because it gives Congress the power to “make or alter” congressional (though not presidential) election regulations.
But here’s the catch: The Framers of our Constitution made clear that these powers were restricted only to emergencies. As Prof. Natelson points out in his 2010 study of the Election Clause, the Founders of country gave Congress power over federal elections administered by the states only in the event that a state refused or was unable to administer it:
Maryland’s famous jurist, Alexander Contee Hanson, added that Congress would exercise its “times, places, and manner” authority only in cases of invasion, legislative neglect, or obstinate refusal to pass election laws, or if a state crafted its election laws with a “sinister purpose” or to injure the general government. “It was never meant,” he wrote, “that congress should at any time interfere, unless on the failure of a state legislature, or to alter such regulations as may be obviously improper.”
The Framers expressly condemned using the Election Clause to craft voting regulations that gave a certain party an advantage in federal elections. They would be appalled at the Democrats’ blatant attempts to stack the deck in their favor by enshrining in law ID-less voting, universal mail-in balloting, and the registration of non-citizens.
They were so worried about the federal government abusing its power, in fact, that they gave the states the authority to propose constitutional amendments. This power, described in Article V, is the only reasonable response to H.R. 1.
The Framers believed that even legitimate powers granted under the Constitution could be abused. The Election Clause may give Congress some power over state-run federal congressional elections, but the Democrats are abusing that authority with H.R. 1. The states can—and must—push back against this abuse by calling the first-ever Article V Convention of States.
A Convention of States is called and controlled by the states and has the power to propose constitutional amendments. Under the resolution proposed by Convention of States Action (an organization I lead), the states would have the ability to draft amendments that limit the “power and jurisdiction of the federal government.”
One of these amendments could clarify the Founders’ original vision for the Elections Clause by giving state legislatures full power over all elections. It could remove Congress’ control even over congressional elections and return that power to the states and the people.
It takes 34 states to call a Convention of States. Fifteen have already passed our Resolution, and we’ve introduced it in dozens more. All 50 states attend the Convention, and amendments are officially proposed once they receive a majority of votes (one state, one vote).
Officially propose amendments are then sent to the states for ratification, where they must receive approval from 38 states before becoming part of the Constitution. Since the state legislature will likely be doing the ratifying, an amendment giving them full control over the election process has a great chance of receiving approval.
The Democrats have made it clear that they have no regard for bipartisanship, compromise, or our federalist system. If they continue with their plan to burn down our election system, the states have no choice but to respond with equal force. Article V gives them the power—it’s time they used it.
Sign the petition below to urge your state representatives to support the Convention of States Resolution!
