This essay first appeared in the March 19, 2024 Epoch Times.
The first two installments in this series (here and here) described the original Constitution’s election system, the Founders’ rules for voting, and five subsequent alterations by constitutional amendment.
This installment describes massive changes wrought in the mid-20th century. Several were the result of duly-adopted constitutional amendments. Some were imposed by Congress or by the Supreme Court.
These mid-20th century changes were of two general kinds: The first kind of change extended the vote to groups of millions of dependent people—that is, people whose independent judgment would be clouded by the fact of their dependency. The other was the expansion of federal power into the election system.
Three constitutional amendments helped carry out the enfranchisement of the dependent. The 23rd amendment (1961) granted presidential electors to the District of Columbia. Nearly all the D.C. population depends directly or indirectly on “big government,” and they vote accordingly.
The 24th amendment (1964) required states to enfranchise those who did not pay taxes. The professed goal of the amendment was a good one—to prevent Southern states from disenfranchising African-Americans through discriminatory poll taxes. But the amendment was drafted far more widely than necessary to accomplish that goal. It also impaired the ability of state lawmakers to ensure that voters held a stake in their communities.
The 26th amendment (1971) extended suffrage to 18-year olds. The amendment was designed as sop to those of college age protesting the Vietnam War. But its effect was to give the vote to millions of people who, to a disproportionate degree, are dependent on parents, colleges and universities, and the government—indeed, to people whose minds, as research shows, are not even fully formed yet.
The Supreme Court Steps In
The Supreme Court also expanded the voter pool. In 1972, in Dunn v. Blumstein, it used the 14th amendment’s Equal Protection Clause as a pretext to set aside a year’s residency requirement for voting. It claimed this rule violated a “constitutional right to travel”—a “right” mentioned nowhere in the Constitution. Today, states feel compelled to grant the vote to anyone residing in a locality more than 30 days. The result, of course, is to encourage uninformed voting and short-term thinking.
Liberal and leftist politicians also passed legislation further extending suffrage to the uninformed and dependent—and, potentially, even the fraudulent. Examples are laws dispensing with voter identification, and those authorizing vote harvesting, mass distribution of mail-in ballots, and automatic registration.
The second motif in election law change was growing federal intrusion into an area the Constitution reserves mostly to the states. Of course, this was part of a wider trend: My Epoch Times series, “How the Supreme Court Re-Wrote the Constitution,” documented how the mid-20th century Supreme Court ceded to the feds almost complete authority over the nation’s economy and more than 28 percent of its real estate.
Fortunately, the changes in election law were not as sweeping.
Unconstitutional federal intrusion into state management of elections got a boost with the 1934 Supreme Court case of Burroughs v. United States. Burroughs was charged with violating a congressional statute regulating presidential campaigns. In his defense, he pointed out that the Constitution entrusts the management of presidential elections to the state legislatures, not to Congress.
This was the response in Justice George Sutherland’s opinion for the court:
“The President is vested with the executive power of the nation. The importance of his election and the vital character of its relationship to and effect upon the welfare and safety of the whole people cannot be too strongly stated. To say that Congress is without power to pass appropriate legislation to safeguard such an election from the improper use of money to influence the result is to deny to the nation in a vital particular the power of self-protection. Congress, undoubtedly, possesses that power . . .”
This is good rhetoric, but poor constitutional law. The Constitution grants to Congress only enumerated (listed) powers, and Congress has no others—no matter how important a Supreme Court justice, or anyone else, may think they might be. Although the Constitution grants Congress considerable authority over congressional elections, it grants almost none over presidential elections.
And, as we saw in the first installment of this series, even its authority over congressional elections does not include the regulation of campaigns.
Whether the current Supreme Court, with its greater respect for the constitutional text, would reaffirm the Burroughs ruling is uncertain. But Congress has continued to intervene in campaigns and in presidential as well as congressional elections.
The Reapportionment Decisions
The Supreme Court also used the 14th amendment’s Equal Protection Clause to increase federal election power at the expense of the states—despite the fact that the Equal Protection Clause clearly does not encompass voting. (Voting is addressed instead in another section of the 14th amendment and in the closely-related 15th amendment.)
During the mid-20th century, activist majorities on the court ruled that (1) states must draw congressional districts of approximately equal population, without much regard to other factors and (2) districts for both houses of the state legislatures (not just one house) had to be apportioned by population.
Many people found the latter rulings particularly objectionable. Those drawing state legislative districts had long considered factors other than population in apportioning one house of a state legislature. In part, the U.S. Senate was their model.
It is true that the legislatures of some states (e.g., Tennessee) had abused this prerogative. But the Supreme Court imposed its new rule on all states, not just the abusers. No longer could those drawing districts give significant consideration to traditional factors other than population: county boundaries, demographic interest groups, historical connections, and rural-and-urban concerns (rural people have less direct access to government, and were compensated with over-representation).
In Colorado, the people passed a voter initiative specifically authorizing the use of non-population factors in apportioning the state senate. But the justices struck that down.
The Machiavellian (and likely, true) explanation for these decisions was that they benefited liberal urban voters at the expense of conservative rural voters.
Congressional Action
Congress also has used the 14th amendment and other constitutional provisions to intervene in various ways. The 1965 Voting Rights Act, for example, while originally adopted for legitimate and constitutional reasons, has been extended long after the need for it has ended. The current “conservative” Supreme Court has not only upheld those extensions, but continues to intervene in state legislative apportionment plans.
In addition, Congress has passed “campaign finance reform” measures that strengthen the force of incumbency by hampering fund-raising by challengers. Earlier majorities on the Supreme Court struck down some of the more blatant First Amendment violations, but the justices have yet to protect the states’ exclusive jurisdiction over campaign laws.
Conclusion
The Constitution’s design for regulating elections at the state level is still largely intact. But the transfer of voting strength away from those with a stake in society and the growth of federal power threaten what remains of the system.
To prevent destruction of the balance entirely, we’ll need a constitutional amendment. In the next installment, we’ll consider some ideas for one.
