20 State Attorneys General Warn Congress Over Their Unconstitutional Federal Power-Grab Over Voting

P. Gardner Goldsmith | March 9, 2021

In a move that has garnered little attention from leftist pop media – perhaps because it focuses on the fundamental rules for the federal government laid out in the U.S. Constitution – 20 state attorneys general have sent a warning letter to House and Senate “leaders.”

Their warning is that HR 1 -- which was passed by the House Democrats last week, and contemptuously titled the “For The People Act” -- is toweringly unconstitutional, and that its unconstitutionality is obvious to anyone who bothers to take even a cursory look at the founding document.

The AGs are: Todd Rokita, of Indiana; Steve Marshall, of Alabama; Ashley Moody, of Florida; Leslie Rutledge, of Arkansas; Christopher Carr, of Georgia; Lawrence G. Wasden, of Idaho; Daniel J. Cameron, of Kentucky; Jeff Landry, of Louisiana; Lynn Fitch, of Mississippi; Eric S. Schmitt, of Missouri; Austin Knudsen, of Montana; Douglas J. Peterson, of Nebraska; Dave Yost, of Ohio; Mike Hunter, of Oklahoma; Alan Wilson, of South Carolina; Jason Ravnsborg, of South Dakota; Herbert H. Slatery, III, of Tennessee; Ken Paxton, of Texas; Sean D. Reyes, of Utah; and Patrick Morrisey, of West Virginia.

(You know, places one might want to consider when thinking about escaping from some of the more oppressively leftist states, if that’s on anyone’s mind.)

And the letter is detailed, and powerful.

As I noted last week, HR 1 would eliminate “Voter ID” initiatives passed in numerous states, force states to adopt mail-in voting (regardless of the laws on the books in those states), and force not only donor ID for all donations, but a new, $3.2 billion public-funding mechanism to feed civilian money into campaigns regardless of whether they support a candidate.

Public funding of campaigns clearly is not sanctioned by the U.S. Constitution or basic ethics, and any attempt to federalize state prerogatives for the election of a President is explicitly forbidden in Article Two of the Constitution.

The 20 state AGs exposed those problems with laser-like precision, and added extra context to their letter of warning, which they sent to Nancy Pelosi (D-CA) and Kevin McCarthy (R-CA) in the House, as well as Chuck Schumer (D-NY) and Mitch McConnell (R-KY).

Related: House Dems Pass Massive Federal Override of State Election Statutes

For example, right out of the proverbial gate, the authors refer to Article Two, and the power reserved to the states to handle how they choose electors for the Electoral College in the process of Presidential elections.

‘First, the Act regulates ‘election for Federal office,’ defined to include ‘election for the office of President or Vice President.’(1) The Act therefore implicates the Electors Clause, which expressly affords ‘Each State’ the power to ‘appoint, in such Manner as the Legislature thereof may direct,’ the state’s allotment of presidential electors, and separately affords Congress only the more limited power to ‘determine the Time of chusing the Electors.’(2) That exclusive division of power for setting the “manner” and “time” of choosing presidential electors differs markedly from the collocated powers of the Article I Elections Clause, which says that both States and Congress have the power to regulate the ‘time, place, and manner’ of congressional elections. That distinction is not an accident of drafting. After extensive debate, the Constitution’s Framers deliberately excluded Congress from deciding how presidential electors would be chosen in order to avoid presidential dependence on Congress for position and authority.(3)

This, as I noted in my MRCTV piece last week, is precisely how the Framers designed things. And the AGs continue: 

Accordingly, the Supreme Court, in upholding a Michigan statute apportioning presidential electors by district, observed that the Electors Clause ‘convey[s] the broadest power of determination’ and ‘leaves it to the [state] legislature exclusively to define the method’ of appointment of electors. McPherson v. Blacker, 146 U.S. 1, 27 (1892) (emphasis added). The exclusivity of state power to ‘define the method’ of choosing presidential electors means that Congress may not force states to permit presidential voting by mail or curbside voting, for example.

The AGs offer detailed worries about the federal government dismantling state voter ID laws, and then they warn that HR1 is a clear affront to the First Amendment:

Even more dismissive of robust political participation is the Act’s requirement that political speakers disclose their donor lists. All speech, whether attributed to an individual or not, facilitates robust political discourse by encouraging speech from a diverse array of viewpoints. The Act reflects an objective to name, shame, and blacklist those with differing or minority viewpoints. In other words, the goal is to censor those with whom the authors of the bill disagree. In the American tradition, the antidote for bad speech is more speech, not less. When people and organizations carry their chosen messages into the public arena, government should not cater to those who would intimidate or disrupt that same speech.

And, finally, the authors offer one last warning to the tyrants in Washington who would rearrange the election system to perpetuate their power:

Despite recent calls for political unity, the Act takes a one-sided approach to governing and usurps states’ authority over elections. With confidence in elections at a record low, the country’s focus should be on building trust in the electoral process.(6) Around the nation, the 2020 general elections generated mass confusion and distrust—problems that the Act would only exacerbate. Should the Act become law, we will seek legal remedies to protect the Constitution, the sovereignty of all states, our elections, and the rights of our citizens.

This is a first warning. There likely won’t be many more, and then, should this HR1 become operable statute after moving through the Senate and receiving the signature of Joe Biden, these AGs will be ready to sue, and take the case all the way to the U.S. Supreme Court.