The Constitution and Elections, Part IV: Adopting an Election-Protection Amendment

A copy of the U.S. Constitution in Washington on Dec. 17, 2019. Andrew Harnik/Pool/Getty Images

Commentary

The first installment in this series pointed out that before the 2022 elections changed the balance of power in the House of Representatives, we very nearly lost our election system. Several bills would have transferred control of elections from the state legislatures to Washington. And those bills would have rigged voting rules permanently in favor of the left.

Once Democrats regain their majorities in both houses of Congress, those bills—or measures like them—almost certainly will pass.

Because, under the principle of “judicial deference,” the Supreme Court usually interprets any questions about the Constitution’s language in ways that uphold the decisions of Congress, the only sure way to protect our elections is to clarify and reinforce the Constitution by amendment.

The first installment also examined the original Constitution’s plan for the management of state and federal elections. The second installment surveyed the effects of several constitutional amendments, and the third reviewed some Supreme Court opinions.

Justices’ Approach in Trump Case Actually Increased Threat

The Supreme Court’s recent decision in Trump v. Anderson—affirming that state officials could not remove former President Donald Trump from the ballot—reached the correct result. But the court’s approach makes the adoption of an election-protection amendment even more urgent.

There were several credible reasons for ruling in favor of President Trump. First, he was not afforded the due process to which he was entitled. I pointed out these due process deficiencies in earlier Epoch Times columns. So did two of the dissenting Colorado Supreme Court justices.

Alternatively, the U.S. Supreme Court could have ruled (as the Colorado trial court did) that the presidency is not covered by the 14th Amendment disqualification clause. That clause applies to a person taking an oath as an “officer of the United States.” Although the presidency is an “office,” the Constitution’s text shows that it is not an “office of the United States” (Article II, Sections 3 and 4). The latter phrase, apparently, refers to an appointed officer, such as a Cabinet secretary or judge.

The justices also could have pointed out that the disqualification clause disqualifies an insurrectionist only from an “office under the United States.” Some history suggests that this phrase also excludes the president.

But instead of these credible approaches, the Supreme Court adopted a textually dubious one: The court said only Congress could draw a road map toward disqualification. It thus conceded to the federal government even more power over our elections.

Perhaps this flawed reasoning was the price the majority had to pay for unanimity—that is, to induce the three most liberal justices to agree with the decision.

But whether or not that is true, the court’s opinion further undermines state control of elections. And some of the opinion’s language is particularly threatening. For example, it assails a state-by-state “patchwork” approach to presidential elections—even though that is exactly what the Constitution mandates!

Why a Constitutional Amendment?

History shows that the relentless trend toward federalizing our elections will continue unless we amend the Constitution to stop it. Amending the Constitution to preserve the Founders’ design may sound odd to some people, but it is precisely what the Founders themselves did when, in 1795, they ratified the 11th Amendment to overrule an erroneous Supreme Court decision.

The Founders also adopted the Bill of Rights to prevent abuses of powers that the federal government otherwise could exercise.

Experience shows that for whatever reason, constitutional amendments tend to have more “sticking power” than the original document. More than two centuries after passage, most of the Bill of Rights remains in full effect today. More recent reforms—such as the 22nd Amendment, limiting the president to two terms—are never even challenged.

Possible Amendments

An election-protection amendment could take any of several forms. Here are a few:

First, it might do no more than reinforce the Constitution’s original plan. It would confirm state control of presidential elections. It also would confirm that Congress’s power to regulate congressional elections (see Article I, Section 4, Clause 1, and the first installment in this series) is to be interpreted narrowly. The amendment should clarify that members of Congress may not adopt so-called campaign reform laws to protect their own incumbency.

Some Founders argued that this kind of amendment should be part of Congress’s proposal for a Bill of Rights. Unfortunately, Congress did not agree.

Another possible amendment would be to repeal entirely the “congressional override”—that is, Congress’s power to override state law regulating congressional elections. Several Founders favored this approach as well. Ultimately, however, the “congressional override” stayed in the Constitution because many feared that states might prove unwilling or unable to administer congressional elections. Subsequent experience has shown that fear to be unwarranted.

Repealing the “congressional override” would go far toward protecting our elections from federal abuse. But Congress still could remedy state abuse by exercising its powers under the 14th and 15th amendments.

An election-protection amendment might also include a section reaffirming state control over the choice of presidential electors.

Some Cautions

Two centuries have taught us some lessons about constitutional amendments. Several years ago, I outlined them in an issue paper for The Heartland Institute.

Amendments that are too lengthy or complicated have no chance of being adopted. They must be carefully drafted, or they can create as well as solve problems. Both their language and their general approach should fit well into the original Constitution.

Proposed amendments must be politically salable. Promoting, for example, a repeal of the 17th Amendment (to abolish popular election of senators) is a complete waste of time, because few Americans will support their own disenfranchisement.

Moreover, amendments should have more than a rhetorical effect. They should represent real cures to real problems.

How to Get an Election-Protection Amendment

Congress will, of course, never propose an amendment limiting its own power. It will have to come from what the Constitution calls a “Convention for proposing Amendments.” This is a meeting of representatives of the state legislatures charged with drafting one or more amendment proposals for public consideration.

The Constitution explicitly limits such a convention to offering amendments to “this Constitution.” Thus, it is not a constitutional convention, as some uninformed people claim. Rather, it is a task force of a kind well-precedented and whose protocols are well-understood. Readers seeking more details should consult the website of the Article V Information Center.

The convention drafts one or more proposed amendments, but none becomes law unless ratified by three-fourths of the states (38 of 50).

The proposed state legislative resolutions of Convention of States Action (with which I used to be affiliated) are broad enough to authorize these proposed amendments.

Conclusion

We should tell those state legislatures that have not yet adopted the “convention of states” resolution to do so now. Further, we should inform our state legislatures that a convention priority should be an amendment protecting our elections from federal politicians and bureaucrats.

Robert G. Natelson, a former constitutional law professor and a senior fellow in constitutional jurisprudence at the Independence Institute in Denver, authored “The Original Constitution: What It Actually Said and Meant” (3rd ed., 2015). His 2010 research article, “The Original Scope of the Congressional Power to Regulate Elections,” was cited by Chief Justice John Roberts in Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U.S. 787, 836 (2015).

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.