Posted by: bridget | 26 September 2006

Federalism & Voting Regulations

As mentioned previously in this blog, the House has recently passed the Federal Election Integrity Act, which will, if enacted, require voters to show photo identifcation in federal elections by 2008 and show proof of citizenship by 2010. A Johns Hopkins study recently showed that 1,500 dead people had voted in a recent Baltimore election. (See, NY Times, 18 May 2006.)

The arguments against such voter identification requirements are that:

  • they are discriminatory (the elderly and the poor lack the resources to obtain identification;
  • it discourages electoral involvement; and
  • it places such a severe burden on voting as to amount to a modern-day poll tax.

None of these arguments are convincing. The bill has provisions that require states to provide identifcation for free to those who cannot obtain it; it is ridiculous to cater to those who are so apathetic that showing ID would dissuade them from voting; and there is precious little evidence that voting-age adults are running about without identification, en masse. Considering that the right to gun ownership is guaranteed in the Second Amendment and state elections for federal positions are not guaranteed anywhere in the Constitution, it is absurd to suggest that there should be more stringent requirements for exercising the former right.

Despite this, the Pachyderm has some concerns about the new bill. Although it increases the efficacy of government and (should) help to ensure the validity of elections and the public’s faith in the results, the new bill runs smack into federalism issues.

  • Practical Considerations: Many states combine federal and state measures on the same ballot; a person, in, say, Georgia, would be able to vote in the state elections but unable to vote in the federal elections. That would be fine, unless there is but one ballot. Could election officials prohibit the person from voting in the state election for failure to comply with the federal law?
  • A Requirement to Change the Entire System? Oregon residents vote entirely via mail. How on earth can Oregon maintain its current system but comply with the federal law? Would residents now have to re-register to receive federal ballots in the mail, showing identification as they register? Would state measures be done via mail but federal measures require Oregon to reopen voting booths?
  • Conflict with a State’s Constitution: A state’s Constitution may provide more protections to voters than the federal law allows (i.e. a state constitution may prohibit, inter alia, identification requirements – considering the wide approval of such prohibitions in the Voting Rights Act, this would not be surprising). According to the Supremacy Clause, federal law should trump – but can federal law undermine additional protections to citizens? I suspect that Art. I, Sec. 4, is most directly on point.
  • Conflict with State Law: Conversely, a State’s requirements for issue of photo identification (the passport being the only true national identification) may be more stringent than intended by Congress and therefore create an unconstitutional/illegal (under the VRA)-as-applied barrier to voting. Does Congress then get to nose around in state ID laws? Considering that this isn’t within the power of Congress to begin with (more below) and is not an enumerated right thereof, can Congressional regulation trump federalist priciniples?
  • Constitutional basis for regulation: Considering that voting is quintessientally a state function, and states need not even hold state elections, can Congress really impose such a requirement within the confines of the Constitution? Art. I, Sec. 4, gives joint authority to the states and to Congress on making voting regulations for members of the House and the Senate; however, no such corresponding provision is allowed for Presidential elections. The Federal Election Integrity Act may only be applicable to congressional elections and not to presidential elections, which will be an utter fiasco come 2008 if Congress insists on exercising such right with regards to one but is unable to do so with regards to the other.

Oddly, the requirement that voters show proof of citizenship by 2010 has a much stronger constitutional basis, as it is the exclusive domain of Congress to “establish a uniform rule of naturalization.”

This may result in the Constitutional bedfellows of Federalists who abhor the intrusion into state election procedures, identification requirements, etc., and the liberals.


  1. […] (Rep. Sununu from N.H.) are putting forth legislation to repeal the Real ID Act (previously blogged here).  While this pachyderm is certainly anti-illegal immigration and anti-terrorist, she dislikes the […]

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s


%d bloggers like this: