The Personal Website of Mark W. Dawson

Containing His Articles, Observations, Thoughts, Meanderings,
and some would say Wisdom (and some would say not).

Voting Responsibilities

Much has been said a written about the issues and concerns about voting in America. My own article, “Voting in America”, elaborates on these issues and concerns. The one issue that I did not address in this article is who is responsible for correcting these voting problems. It is the direct responsibility of the State Legislatures to establish voting laws and regulations in accordance with their State Constitution. However, under the United States Constitution, “Congress may at any time by Law make or alter such Regulations” to ensure State voting laws and regulations are not in violation of Federal Constitutional Rights and Civil Rights Laws. The State and Federal courts, and ultimately, the State and Federal Supreme Court, determine the constitutionality of any and all State and Federal voting laws and regulations.   

However, it is the electorate that is indirectly responsible for these voting problems, as they are responsible for voting into office politicians that will take their duties and responsibilities for crafting election laws and regulations that solve the voting problems in America. The Constitution clearly states the who and how of the responsibility for the election of Senators and Representatives, and for the President and Vice-President, as ultimately residing in the State Legislatures. With State Legislators being elected by the people, the people of a state are responsible for electing legislators who will craft proper election laws and regulations that eliminate voting problems. As an aside, it would be helpful to examine the bounds of the United States Constitution for elections that the State Legislatures must adhere to as follows:

The election of a President and Vice-President of the United States is defined in Article II, Section 1 of the Constitution, which states:

“The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”

The 12th Amendment to the Constitution further elaborates on the method of the election of the President and Vice-President, but this elaboration is not germane to this article. A portion of the 12th Amendment was superseded by section 3 of the 20th Amendment, which is also not germane to this article.

The XXII Amendment to the Constitution limits the term of office for a President in Section 1 of this Amendment:

“No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once.”

The Constitution and its Amendments determine how a President and Vice President are elected through the means of the Electoral College, as I have examined in my Article, “The Electoral College”. However, several States are attempting to contravene the intent of the Electoral College by joining forces and voting en bloc for a presidential candidate. Called the National Popular Vote Interstate Compact, the agreement calls for states to award their electoral votes to the winner of the national popular vote, despite the votes vast for a Presidential candidate that occurred within their State.

Certain legal questions may affect the implementation of the compact. Some legal observers believe that the compact will require explicit congressional consent under the Compact Clause of Article I, Section X of the U.S. Constitution, or that states have the plenary power to appoint presidential electors as prescribed by the compact under the Elections Clause of Article II, Section I of the Constitution. Other legal observers disagree that the power of states is broad enough to appoint their electors in accordance with the compact and that the Electoral College cannot be altered to appoint presidential electors in accordance with the national popular vote except by a constitutional amendment.

For the election of Senators and Representatives, Article I, Section 4 of the United States Constitution clearly states that:

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.”

The 27th Amendment to the Constitution modified the election of Senators as follows:

“The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the Legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the Legislature may direct.

This Amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.”

There are no term limits in the holding of office for Representatives or Senators in the Constitution. Much has been said about the pros and cons of restricting the terms of an office held by elected officials. Many of the arguments for term limits are counterbalanced by arguments against term limits. This balancing is not dispositive for or against term limits, and I need not reiterate these arguments as much more knowledgeable and experienced people have done this better than I could.

The Constitution and its Amendments give no role to the Courts to be involved in elections. The court’s only role is to determine if the election laws of a State are Constitutional within both the Federal and State constitutions. The courts can only intervene after an election to ensure that the laws, as written before the election, are upheld. In no manner can a court modify or interpret an election law before or after an election. They may only determine the election law's constitutionality before an election and remand it back to the Legislature if found unconstitutional.

The broad power that Federal Courts have utilized to intervene in elections springs forth from an interpretation of a clause in the Constitution and one of its Amendments. Article. IV. Section. 2. of the Constitution states:

“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

Amendment XIV to the Constitution in Section 1 states that:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The Federal Courts have interpreted these clauses as the court’s power to intervene in an election. In general, the court's intervention is important to protect the voting rights of American citizens. In practice, the courts have utilized "Torturous and Convoluted Reasoning" to extend their powers beyond the protection of voting rights into the conduct of an election. In some cases, they have issued rulings that ignore or replace State Constitutional voting clauses or State Election Laws.

Our Founding Fathers were acutely concerned about an unelected and undemocratic Judiciary becoming involved in elections, as they had experienced the pernicious influence of British courts interfering in elections in Colonial America. They deliberately chose to place democratic elections into the hands of democratically elected Legislatures where any malfeasance could be corrected by the will of the people. For the Courts to become involved in elections is dangerous to democracy, as the Courts are unelected and unresponsive to the will of the electorate.

The current problems of Voting in America are mostly addressed by State laws on elections. However, I believe that under the Constitutional clause, “but the Congress may at any time by Law make or alter such Regulations” the Congress has the Constitutional authority to set guidelines for “The Times, Places and Manner of holding Elections for Senators and Representatives”, which would also effectively impact the election of the Electors of the Electoral College. Such guidelines would be boundaries that a State could not exceed while leaving it to the States to determine the details of voting within their State. As to which boundaries Congress needs to address, I would direct you to my article, “Voting in America”.

I, therefore, believe that Congress should pass laws that set the boundaries for State laws on elections. These voting problems and the boundaries the Congress should set are:

• Protecting Your Right to Vote is currently a major focus of current Federal laws and Judicial actions, as it should be as it is a Constitutional Right. This focus should continue, and the laws should be improved as the circumstances warrant.
• Protecting the Integrity of the Vote is not currently a focus of Federal laws, but it should become a focus. This Federal focus should be on the problems, issues, and concerns that call into question the free and fair results of an election. Many of these questions could be addressed by correcting the election problems of the below points.
• Proper Maintenance of Voter Rolls is important to the integrity of the vote but is rarely pursued by Election Boards. This needs to change, and the Federal government should set standards for the maintenance of the voter rolls.
• Suppression of the Vote, as outlined in my article on Voting in America, is not currently a problem as it is now prohibited as part of the Federal efforts of Protecting Your Right to Vote. As such, it does not require any additional Federal efforts other than amending Federal Voting Rights laws to be improved as the circumstances warrant.
• The Voting Age in America is set by the 26th Amendment to the Constitution. However, for the reasons I have stated in my article, we may wish to reconsider this issue.
• Voter Identification in the form of a Photo ID should be required to preserve the integrity of the vote. If we can require photo identification for many other activities in America, we should require photo identification to vote in America.
• Election Day Voter Registration should be prohibited, and voter registration should only be allowed prior to fifteen days before an election to ensure the integrity of the vote.
• Early Voting is to be prohibited except in the case of absentee ballots. Election day should be a National and State Holiday to allow a voter sufficient time to cast their votes on Election Day.
• Voting by Mail should be prohibited except for absentee ballots, as voting by mail poses serious problems with the integrity of the vote. An absentee voter is defined as a legal voter who will not be present in the polling district on the day of the election or a legal voter who is physically incapable of being present at the polling station. The issues of Mail-In Ballots, Ballot Drop Boxes, and Ballot Harvesting needs to be addressed and resolved, as they are very important to the integrity of the vote.
• Internet Voting should be prohibited until such time that the Internet is secure and can protect the integrity of the vote.
• Poll Watching and Poll Intimidation boundaries and standards should be set to protect the voters’ right to vote and the integrity of the vote.
• Election Recounts general policies need to be defined to ensure proper and transparent recounts that will ensure the American people that the recount is fairly done and the recounts are accurate, and without election fraud.
• Interstate Compacts on the election of a President or Vice President should be outlawed, although I believe that these compacts are Unconstitutional and that the Supreme Court would rule so if the issue arose before them.
• The Funding of Elections is a complex issue that impacts our Constitutional Rights and is beyond the scope of this article. As such, I have addressed this issue in a separate article, “Campaign Financing and Independent Expenditures”.
• Term Limits for Representatives or Senators need to be addressed for the reasons that I have given in my Chirp on "07/22/20 Politics as a Career Path". Such term limits can only be accomplished by means of a Constitutional Amendment

However, it is not only the States and the Federal government that bear the responsibility for voting, but it is also the electorate that bears some responsibilities. We must all ensure that voting laws are just and faithfully carried out, and we must all observe the election process and report any irregularities to the proper authorities for investigation and correction. It is, as the Constitution preamble so elegantly states:

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Consequently, it is “We the People” that are ultimately responsible for ensuring free and fair elections in America. To not do so is to allow for corruption and undemocratic elections. Undemocratic elections are antithetical to our "American Ideals and Ideas" and result in a government that is selected, not elected. If we do not do so, then, as President Lincoln so eloquently stated in his Gettysburg Address, we will not be a “government of the people, by the people, for the people”.