Senator Rand Paul has entered the presidential sweepstakes as a Tea Party favorite and limited-government constitutionalist—i.e., one who believes Congress should not pass legislation unless it has the constitutional authority to do so.
Paul’s constitutionalist bona fides are in doubt, however, with his sponsorship of a bill stipulating that the right of an individual to vote in any federal election “shall not be denied or abridged because the individual has been convicted of a non-violent criminal offense, unless, at the time of the election, the individual is serving a sentence in a correctional facility or a term of probation.” The bill if passed would have an immediate effect, since most states restrict the voting rights of nonviolent felons on tougher terms than Paul proposes.
Paul thus has joined the debate over whether state laws that disenfranchise felons should be changed or even eliminated. It is a worthwhile debate, encompassing myriad concerns, including the nature of the crime and how recently and frequently crimes were committed, and whether the racial impact of the laws—a large percentage of felons are African Americans—is a relevant consideration in making policy, as Paul believes it is.
However you regard the senator’s policy, there is a fundamental problem with it, which is that it is proposed in a congressional bill. Yet it is not Congress but the states that have the power to decide the qualifications of voters, including whether felons should be allowed to vote at all.
Article 1, Section 2, Clause 1 provides that voters for the House of Representatives “shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” And the Seventeenth Amendment, which brought about the direct popular election of senators, provides, “The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.”
So, as civil rights lawyers Hans A. von Spakovsky and Roger Clegg have pointed out, “the qualifications or eligibility requirements that states apply to their residents voting for state legislators must be applied to those same residents voting for Members of Congress, thereby explicitly giving states the ability to determine the qualifications for individuals voting in federal elections.”
Those who instead think the Constitution grants that authority to Congress point to Article 1, Section 4, which says Congress “may make or alter [state] Regulations” regarding the “Times, Places, and Manner of holding Elections for Senators and Representatives.” But that provision is about holding elections, not setting qualifications for electors.
Of relevance, too, is the Fourteenth Amendment, which specifically recognizes that states may abridge the right to vote of citizens “for participation in rebellion or other crime.” Not only do the states have the power to determine the qualifications for electors, then, but in making that determination they may take into account a person’s participation in crime, broadly defined.
The text of the Constitution seems plain enough. And the intention of the Framers is not otherwise. In essays in The Federalist in support of the Constitution, Alexander Hamilton and James Madison observed that states, not Congress, would determine who is qualified to vote.
Nor has the Supreme Court generated a line of activist cases giving that power to Congress. To the contrary, in the most recent case on point, 2013’s Arizona v. Inter Tribal Council of Arizona, the Court recognized that the states, not Congress, have the authority to determine the qualifications of federal voters.
Senator Paul might consider that the opinion in the Arizona case was written by Justice Antonin Scalia and joined by six other justices, and that the two justices who dissented, Clarence Thomas and Samuel Alito, did so on other grounds while agreeing with the majority on the question of who determines voter qualifications. Wrote Thomas, “I think that both the [Elections] Clause and the Seventeenth Amendment authorize States to determine the qualifications of voters in federal elections.” And here’s Alito: “Under the Constitution, the States, not Congress, have the authority to establish the qualifications of voters in elections for Members of Congress.”
Through the years Senator Paul has made much of his fealty to the Constitution. If, on the matter at hand, the GOP presidential candidate wants to stay true to the supreme law of the land, he has two options. One is to propose his policy not in ordinary legislation but as a constitutional amendment—which he has not done. The other is to identify those who actually have the constitutional authority to determine voter qualifications—the states, not Congress—and ask them (as Paul has done in his home state, Kentucky) to pass his policy.
Notably, while he was attorney general, Eric Holder argued for an approach that would allow more felons to vote than Paul’s. But the Obama administration didn’t recommend to Congress any legislation. Instead, Holder called on the states to repeal their disenfranchisement laws. Did even this administration realize that only the states have the authority to determine voter qualifications? Amazing to ponder, but on this constitutional issue, maybe Rand Paul could learn from Eric Holder.
