The Liberty Amendments: Restoring the American Republic (23 page)

The modest, commonsense efforts by Pennsylvania and Arizona to ensure the integrity of the voter registration and voting process for all citizens have been replicated across the country. Legislatures in Kansas, Florida, Georgia, Indiana, Wisconsin, Missouri, Minnesota, Texas, and South Carolina, among others, are considering voting reform measures. In every case, opponents are
employing racially and ethnically charged rhetoric to obstruct what should be noncontroversial measures, and are doing so often with the legal backing of the federal government.

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It is worth noting that voting rights during the years of the Articles of Confederation, as they were during colonial times, were left strictly to the individual states. Most of the original states required men to be “freeholders”—landowners of either a minimum acreage or value.
²³
Others required the payment of all taxes for the previous year.
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Ten states had minimum residency requirements in the state or in a particular county.
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Some states allowed “freemen” to vote while others allowed only white men to vote.
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New Jersey was the only state that permitted women to vote.
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During the Constitutional Convention, the Framers weighed carefully the federal government’s role in determining suffrage rights. They devised a system that was intended to preserve state sovereignty and ensure the viability of national elections in the Constitution. They ultimately designed a structure where members of the House of Representatives would be chosen directly by the people;
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members of the Senate would be chosen by state legislatures;
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and the president and vice president would be chosen by an Electoral College through a national popular vote.
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Those voting in federal elections were to have the same qualifications as “Electors of the most numerous Branch of the [individual state’s] State Legislature.” This framework was a compromise between delegates to the Constitutional Convention who wanted all federal elected officials to be chosen by the States and those who argued for direct elections for all national offices.
³¹

James Madison supported the compromise in
Federalist
52, despite
his objections to it during the convention, arguing that the Constitution’s voting provisions

appear, therefore, to be the best that lay within [the convention’s] option. It must be satisfactory to every state because it is conformable to the standard already established, or which may be established by the state itself. It will be safe to the United States; because being fixed by the state constitutions, it is not alterable by the state governments and it cannot be feared that the people of the state will alter this part of their constitutions, in such a manner as to abridge the rights secured to them by the federal constitution.
³²

During the state ratification conventions, several states proposed amendments requiring what amounted to a citizenship requirement for voters. For example, the Virginia Ratification Convention proposed “that the elections of representatives in the legislature ought to be free and frequent, and
all men having sufficient evidence of permanent common interest with, and attachment to the community
, ought to have the right of suffrage.”
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Rhode Island proposed the identical amendment.
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Thomas Jefferson proposed to “include within the electorate of any county, along with property holders, all free mail [
sic
] citizens who had resided there for a year or had been enrolled that long in the militia.”
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These were arguments for establishing standards that would require voters to have a stake in their communities.

Following the Constitution’s ratification, some states dropped property ownership and property tax payment requirements, but most did not.
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Over time, however, and as new states joined the union, property ownership and taxation requirements were
dropped by most states. By 1855, only three of thirty-one states required property ownership or tax payments as a condition for voting.
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But nearly every state required that voters be citizens or residents of the state for a minimum amount of time.
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By the mid-1800s, only North Carolina allowed noncitizen voting.
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With the Civil Rights Act of 1964 and the Voting Rights Act of 1965 (VRA), Congress implemented measures that were intended to enforce the Thirteenth, Fourteenth, and Fifteenth Amendments—often referred to as the Civil War Amendments—to combat ingrained racial discrimination, particularly but not exclusively in certain Southern states. In addition to providing individuals with the right to sue when discriminated against, the federal government assumed sweeping “temporary” powers to eradicate racially discriminatory barriers to the ballot box, such as poll taxes and literacy tests.
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The Department of Justice was given authority to preapprove all changes to voting laws for jurisdictions demonstrated to have institutionalized discriminatory laws.
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This included everything from voter registration procedures to drawing district boundaries.
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A five-year limit was put on this new federal authority because Congress and the judiciary recognized its shaky constitutionality respecting federalism and equal sovereignty among the states.
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In 1970, Congress renewed the “temporary” powers for another five years.
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However, these powers were expanded to cover Hispanic, Asian, and Native Americans. The act was reauthorized for seven years in 1975 and for an additional twenty-five years in 1982. In the 1982 reauthorization, Congress expanded even further the act’s scope by removing the requirement for intentional discrimination in certain voting cases.
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The act was reauthorized for another twenty-five years in 2006.
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While acknowledging
that discriminatory practices existing in 1965 had been eradicated, Congress justified the 2006 reauthorization on the basis of “secondary barriers” to voting rights.
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Consequently, with such an extensive federal role in overseeing voting in the nation, the resistance by federal officials to state efforts to actually ensure the integrity of the franchise—indeed, the federal government’s legal actions and intimidation tactics in sabotaging and obstructing those efforts—was a profound desertion of self-government.

The original VRA had served its intended purpose, eradicating the evil of systematic race-based voter suppression. In another decision this June, the Supreme Court ruled that Congress could no longer justify the federal government’s interference with state voting decisions based on conditions that had not existed for decades. It struck down the VRA’s state preclearance requirements while preserving the individual’s right to sue against alleged voter discrimination under the act.
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Meanwhile, two recent federal laws have contributed dramatically to creating the environment in which incidences of voter fraud can flourish—the National Voter Registration Act of 1993 and the Help America Vote Act of 2002 (HAVA).
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Each of these laws has imposed requirements that restrict state authority to regulate elections and has opened the door for widespread abuses in both voter registration and voting at the polls.

In their book
Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk
,
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election experts John Fund and Hans von Spakovsky supply numerous examples of pervasive problems in both the registration process and voter integrity throughout the nation. They fall into two broad categories—noncitizen voter registration and voting as well as voter fraud, combined with
the refusal of federal officials to enforce the law. Fund and von Spakovsky, among others, have demonstrated that aliens, both legal and illegal, are registering and voting in federal, state, and local elections. In fact, the federal government acknowledges it.
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“There is no reliable method of determining the number of noncitizens registered, or actually voting, because most laws meant to ensure that only citizens vote are ignored, are inadequate, or are systematically undermined by government officials. Those who ignore the implications of noncitizen voting are willfully blind to the problem, or may actually approve of illegal voting.”
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Noncitizens are on voter registration lists throughout the country. In 2005, the Government Accountability Office found that up to 3 percent of the thirty thousand individuals called for jury duty from voter registration rolls, during a two-year period in just one United States district court, were not citizens.
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This particular district was in Florida, but Florida is not distinctive.

Colorado’s secretary of state, Scott Gessler, is among a handful of state officials who have aggressively sought to enforce the HAVA. “The Colorado secretary of state testified before Congress in 2011 that a check of voter registration rolls against state [Division of Motor Vehicles] records indicated that more than 11,000 Colorado registered voters may not be U.S. citizens—and more than 5,000 of them voted.”
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One of the many factors that may contribute to illegal aliens being able to register to vote is that there is no single voter registration system for the nation. There are fifty state (and the District of Columbia and U.S. territorial) systems operating at varying degrees of efficiency. And each of these systems depends on the skills, expertise, experience, and commitment of thousands of private citizens who man the polling places, operate the voting
machines, and count and report the tallies at the end of the day. Further complicating the situation are the various federal requirements overlaid on these state systems, creating a nearly perfect storm of inadequate resources, outdated equipment, and often un-or ill-trained volunteers running the systems on election day.

According to a 2012 analysis by the Pew Center on the States, there are more than 1.8 million deceased individuals who remain on voter registration rolls.
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In addition, approximately 2.75 million people have registrations in more than one state.
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Moreover, as many as 24 million—one in every eight—voter registrations in the United States are no longer valid or are significantly inaccurate.
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At least respecting the election of the president, vice president, and members of Congress, requiring a state-issued form of identification proving citizenship can be the foundation for reforming voting mechanisms, while preserving the roles of the federal and state governments in the process.

Ensuring the integrity of the voting process is a rational and essential objective. In fact, the Framers believed that there was a common responsibility, a unique symbiosis, between the federal and state governments in the
administration of elections
. Again, Article I, Section 4, Clause 1 provides, “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 Places for chusing [
sic
] Senators.”
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The Framers also granted the state legislatures the authority to determine how members of the Electoral College would be selected in their state. “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.”
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Shortly after ensuring that the state legislatures would set the terms of selecting electors, Congress was granted a share of the responsibility for conducting presidential elections. “The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which day shall be the same throughout the United States.”
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Furthermore, there are four constitutional amendments that break down legal obstacles to voting and expand the franchise—all of which, of course, required ratification by three-fourths of the states after their adoption by two-thirds of both houses of Congress.

The Fifteenth Amendment ensures the right of former slaves to vote: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
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The Nineteenth Amendment ensures that women can vote: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”
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The Twenty-Fourth Amendment eliminates the poll tax, used by segregationists to prevent poor minorities, mostly African-Americans, from voting: “The right of citizens of the United States in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator
or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.”
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Lastly, the Twenty-Sixth Amendment reduces the age of eligibility to vote. “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.”
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The proposed amendment is intended to ensure that the franchise is secure for all citizens. First, it establishes the requirement for producing an official photo ID that designates the individual’s citizenship to register to vote and vote. Although it is conceivable that a particular individual might not be able to satisfy a photo ID requirement, such IDs would be provided free of charge, as provided in every state that has adopted the photo ID requirement.