Skip to main content

tv   Lawmakers Examine Elections Clause Congressional Authority  CSPAN  July 17, 2021 10:04am-11:34am EDT

10:04 am
announcer: >> next, legal experts testify before the house administration committee on the elections clause and the role congress plays in regulating federal elections. witnesses answer questions on the founders' views of elections, the history of elections clause and the history , of federal and state jurisdiction of constructing laws around voting. this is about an hour and a half. >> our hearing today will examine the broad constitutional authority given to congress to regulate elections under the clause of the united states constitution known as the elections clause. it reads as follows. "the times, places and manners of elections shall be prescribed
10:05 am
in each state by the legislature thereof; but, the congress may at any point alter such regulations except as to the places of choosing senators. the state making regulations for the time and manner of congressional elections, but to provide congress power to alter such regulations at any time. during the constitutional convention the framers came to the conclusion of the elections clause and the broad powers it confers to congress. with supporters calling for the necessity of self of the federal government in preservation face of potential state obstructions of congressional elections. in defense of the elections clause, alexander hamilton wrote in federalist 59 that "its propriety rests upon the evidence of this plain
10:06 am
proposition, that every government ought to contain in itself the means of its own preservation." as well, defending the conclusion of the elections clause in the constitution and oversight over congressional elections that would authorize. they were worried about the potential for state lawmakers to abuse their powers and pass election regulations that would be -- that would lead to unequal representation and other forms of voter suppression in federal elections that would go unchecked unless congress was empowered with the remedy of the elections clause to act. this rings true today. since the supreme court 2013 decision, state legislatures around the country have passed away for voter suppression efforts including voter id laws and increasingly limited opportunities to access the ballot. this pattern has further
10:07 am
escalated since the 2020 general election. partisan gerrymandering by incoming political parties, both parties, remains an ongoing obstacle to equal voting rights across various states. in her hearing today, we will hear more about what the framers intended when they drafted and included the elections clause in our constitution. likewise, the supreme court has been consistent in construing the elections clause as providing paramount powers to congress to enact federal election regulation that preempts state regulations and is -- and has interpreted these laws. in 1932, the supreme court said these comprehensive laws embrace a 30 to provide a complete code of congressional elections which is not limited to just times and places but to the requirements as to the procedure where it's necessary in order to enforce the fundamental right involved.
10:08 am
in another case, in 2013, justice scalia a renowned conservative justice, wrote to the court that the national voter registration act requirement that voters prove their citizenship preempted the arizona citizenship requirement, relying on another case in the understanding that the power of congress can preempt state regulations governing the time, places and manner before the congressional election and that time, places and manner are comprehensive words. the ndra is only one example. congress has long exercised its election clause powers to enact legislation covering various parts of federal election regulation. in the portion act of 1842 which eliminated the federal election
10:09 am
campaign act of 1971 and the uniform and overseas citizens act of 1986 as well as the help america vote act. reliance on the election clause is a source of congressional authority has been supported on a partisan basis. since the house began acquiring identifying constitutional authority to approve legislation, members have cited the election clause for their legislation more than 230 times which includes scores of measures introduced by republican members that would have required steps to take certain steps, the state to take further steps how they conduct their election and limit certain activities. in the last congress, ranking member davis introduced legislation to deny federal election grants to states that permit third-party individuals to reject voters.
10:10 am
he cited the elections clause of the constitution. this authority can be used to impair it and citizens to make voting easier and more secure while ensuring that suppressive tactics and plans may not be used to limit or deny access to the ballot box. congress has endeavored to enact new forms including hr-one hundred election clause powers. hr one will help remedy ongoing voter suppression efforts across states as the framers intended. hr one typified and appropriate exercise of congressional authority. this hearing is an opportunity to ask for the contours of the election.
10:11 am
it provides congress to confer legislation. i understand mr. davis is on assignment today and maybe joining us later but i think mr. style will be offering his opening statement. mr. style, you are now recognized. >> thank you madame chairwoman. today's meeting is titled the election clause, constitutional interpretation. this is a hearing that our committee should have had before we had hearings on the elections administration, before the drafting and introduction and passage of hr-one and over the drafting and introduction of hr for last congress. article one, section four of the constitution clearly states the primary role in establishing the times, places and manners upholding elections for senators
10:12 am
and representatives. under the constitution, congress has a purely secondary role in this space. this is evident from the weights written. the states are lifted first and congress is listed second. congress is clearly outside these constitutional bounds. these bills prevent any states establishing the time, place and manner in which elections are held by establishing a national election system by bureaucrats in washington, d.c. the supreme court ruled this month that states have the power to protect the integrity of their elections through thoughtful, considered legislation, making it easy to vote in hard to treat postop in the case against arizona, the court upheld the state power to ban the use of third-party ballot harvesting. justice alito's opinion stated an entirely legitimate state interest is a prevention of fraud step right can affect a close election fraudulent votes
10:13 am
dilute -- dilute the rights of citizens that carry appropriate weight. fraud can also undermine public confidence in the fairness of elections and the perceived legitimacy of announced outcomes. public confidence in our elections are something i is ranking member on the subcommittee and focused on. ranking member of the committee is leading the way we have seen this as an issue in north carolina. there was fraud resulting ballot harvesting california has had issues as well. despite the well-documented fraud cases, the fraud issues of ballot harvesting, hr-one legalizes this product is nationwide and according to democrats, ballot harvesting is a state of discrimination. fortunately, the screen court ruled this is not the case. the court ruled the intent and
10:14 am
totality of the state voting situation matters. justice alito noted that merely implementing voting structures intended to bolster voter confidence such as rules to increase ballot and credit -- integrity does not equal discrimination which is what my democratic colleagues continue to claim. not only does the recent supreme court ruling invalidate my democratic colleagues claim but the record has demonstrated this as well. my democratic colleagues have claimed that voter id is used to suppress boats. however, the data clearly disputes this. contrary to democratic claim, voter id requirements of lowering voter turnout sought record turnout with voter id requirements in the 2020 election. i thought it would take this opportunity during a remote hearing to take everyone on the committee to rural america. while i have not found a kinko's, the vice president may be interested to learn that i can confirm folks in rural
10:15 am
wisconsin and rural communities across the united states have running water, have electricity and i found this new invention that i don't think was there when vice president biden first ran for senate but it's available now in rural america and it's called a camera phone. it's amazing, it has a camera and a phone and it can actually take a photo of an id and can be submitted electronically. shocking and it may not have come to san francisco. vice president kamala harris may not be as the mill your but i encourage everyone to check out the new camera phones that can be used to provide enhanced integrity in our elections for people voting by mail remotely in rural america. additionally, the data used by democratic witnesses in a hearing earlier this year, democratic witness stated that minority participation in the 2016 election was less than the 2012 election and claimed this was due to voter suppression. however, she admitted her
10:16 am
analysis relied on self reporting voter information from online surveys to reach her conclusion, not a scientific one. it reverse engineered her desired results and during the committee hearing, i pointed out that her study did not control for the difference in candidacy between barack obama and the historically terrible candidacy of hillary clinton. my democratic colleagues invited many college professors to participate in these hearings on hr one or voter suppression, they invited no election officials who actually have administered elections. republicans have invited multiple election administrators including her witness today, the kentucky secretary of state, i present you joining us and together, these individuals have decades of experience and election administration and each one of them have or will testify on how bad hr one is for states. he repeatedly stressed that mandates rep hr one will not work in their jurisdiction.
10:17 am
they would be incredibly costly and could even make elections less secure. in contrast, the only two election officials the majority invited to ever actually administer elections prior to testifying. after a thorough review of the committee's record in the recent supreme court decision, i hope democrats will abandon their efforts to circumvent the constitution and nationalize our elections. it's clear election system works best when those closest to the people are setting the rules for administering the election, not unelected bureaucrats in washington just as our founding fathers wrote an article four, article one, section four of the constitution. madame chairwoman, i yelled back. >> the gentleman yields back and all other members are invited to submit opening statements for the record. we have a very distinguished panel to hear from today. i would like to welcome each of them and thank them for participating. first we have professor jack
10:18 am
rakoff who is the co-professor of history and american studies at stanford university where he has taught since 1980. he is a constitutional historian and principal areas of research including the origins of the american revolution and the constitution, the political practice and theory of james madison and the historical knowledge of constitutional litigation. he is the author of six books and has won the pulitzer prize in history. he is a member of the american academy of arts and sciences and the american philosophical society in a past resident of the society for the history of the early american republic. he has a bachelors in history. we also have the vice dean
10:19 am
tolson at the usc gould school of law and is a nationally recognized expert election law. her scholarship and teaching focused on the areas of election law, constitutional law, legal history, political parties, the election clause, the voting rights act of 1965 and the 14th and 15th amendments. she received her jd from the university of chicago law school . in 2019, her article on the elections clause appeared in the yale law form where she examined the broad powers conferred on the of the elections clause in the underutilization of such
10:20 am
powers by congress and the constitutionality of hr one. in her forthcoming book, in congress we trust, she looks at voting rights from founding to the jim crow area and that will be published by cambridge university press. daniel is the dean of the university of wisconsin law school. the leading authority -- it is the leading a 30 and a scholarship addresses issues of voting rights, free speech and democratic conclusion. he has published over 50 law review articles on a broad scope of topics. he is the author of election law and a nutshell, the second edition and co-author of election law. previously, the dean served as a professor of constitutional law at ohio state college of law and the dean received his jd from
10:21 am
yale law school. he is a former civil rights attorney and has worked on various free-speech, racial justice and voting rights cases. and last but certainly not least, the secretary of state, michael adams, secretary adams is kentucky's 86 secretary of state, sworn into his term on january 6, 2020. he established a private practice election law in 20 -- in 2007. he served as general counsel to the republican government association and later expanded his practice representing national political committees, national political figures in statewide campaign efforts. in 2016, he was appointed to the kentucky board of elections. previously, he worked on senator mitch mcconnell's 2002 reelection as deputy general council and was appointed counsel to the u.s. deputy attorney general in the bush
10:22 am
administration. hickory adams received his jd from harvard law school and work for the chief u.s. district judge. welcome to all of you you have testimony for about five minutes. the clock will help you keep track of time. please summarize in your entire stigmas will be made as part of the record. turn first to professor ra and we welcome your testimony. koff >> thank you very much. a special pleasure for me to hear before you all.
10:23 am
the original intentions of the framers of the constitution drafted the times, as is and manner clauses. there are many conclusions i wish to present. the reconstruction of the drafting of the was indicates [indiscernible] not only does it give congress broad authority to do test to detect imperfections in the states but it also empowers congress to use its legislative powers creatively. the clause first appeared and it had a detail of the response of the problem of asking what should happen should one of our states fulton their obligation to provide for the election of members of congress? a state willfully tried to sabotage the state elections. the states and often fallen
10:24 am
short of fulfilling their federal duties. the framers of the constitution had legitimate reasons to worry about allowing federal elections to become over dependent on voluntary compliance of the state legislations. second, this additional authority which james madison gave on august 9, 1787, one part of the clause is actively debated. the two south carolina delegates said there was no reason to have alteration of state regulation of federal elections. madison created this motion. madison argued they were be subject to all the abuses of this discretionary policy. state legislators would share their own security to favor the candidates they wished to succeed. if there were inequalities in the state legislatures, these
10:25 am
would be replicated in the design of congressional districts. these potential sources of abuse justified congressional oversight and revision. the framers agreed because the south carolina motion was rejected without a roll call. madison's speech also identified problems that the framers faced in designing a system of national political representation step here is madison's lift up her -- list of problems. whether they should be voting by valid -- by ballot or divided by districts or meet in one place or should all vote for one representative or all vote in the district. these and many other points fell on the legislatures. it's important for members of this committee to know that there was no precedent in any american history for the kind of representative system the framers were designing. the american colonies and stents represented states where they
10:26 am
were organized. the community representation would never work in the expanding american republic. congressional district would be political entities. legislatures would have to create a no vote. the manner of holding elections are based on the actual method of voting to deciding what kind of constituency was to be represented. the clause effectively empowered congress to examine it elections were working or not working. when americans thought about political representation, there is one thing that guided their thinking.
10:27 am
a legislative assembly should be a miniature orchard or transcript of the larger society. as adams put it, it should be an equal representation for equal interest among the people should have equal interest in it. their conception of what constitutes political society was hardly identifiable with errors. in their times, this was still a remarkably democratic vision of the government should look like . it's not one person, one vote. it implies that the true goal of democratic politics is an equitable solution not a divorce -- not an exclusion. thank you very much. >> thank you very much, professor. i would like to call on dean tolson for her testimony.
10:28 am
>> thank you very much. i appreciate the opportunity to appear and speak about this congressional power under the elections clause. it has been significantly underutilized. under the clause, congress can implement a complete call for federal elections and this can supplement all or turn it to displace the state glittery regime step tickly when the states have jeopardized local elections in some way. congress can make or alter state law and commandeer state officials and state offices to implement that federal law and conduct voter qualification standards. number of constitutional provisions have called on congress to regulate certain elections.
10:29 am
provisions in hr one have been validated by the supreme court and prior congressional cases. laws are potentially broader when they address the 15th amendment when proceeding under the latter two amendments. despite the elections clause untapped potential, they have been a source of much federal legislation which contributes to the procedure that this is unconstitutional. it is not. in 19 32, the supreme court decision held that it's a manner of regulation under the elections clause. the court reaffirmed this as late as 2013. voter registration changes are not inherently problematic. congress can accommodate state offices to implement election clause legislation. the national registration act
10:30 am
includes offices that provide state programs. congress deemed this to be constitutional. supreme court in a 2015 decision upheld the use of independent commissions to draw congressional districts thereby validating hr one post use for federal elections. these provisions of hr one are arguably constitutional. the inevitable constitutional objections touch on voter qualifications which are usually within the states domain in a particular the fact that hr one re-enfranchise those with voting in federal elections. under the elections clause, the circumstances were voter qualification turned out, there are instances where state regulations discourage or unduly impact voter turnout in federal
10:31 am
elections. the absentee voting act enacted a use by federal personnel and incorporated state qualification standards to determine which personnel were entitled to vote. congress enacted this to address the health and legitimacy of federal elections. military voters were overlooked and incident addition insufficiently protected. the 14th and 15th amendment are invoked for hr one. hr one would prohibit states from not exercising their fundamental rights as protected by the 14th and 15 the men. -- and the 15th amendments.
10:32 am
people are disenfranchised for hundreds of felonies and the supreme court recognized under the election clause come up to protect the election. to protect the citizen in the exercise confirmed by the constitution of the united states, it requires a healthy mobilization of the government itself. most of hr one provisions do not approach the outer limit of congress is power under the election clause which empowers the body to make or alter state law, commandeer state officials and state offices and especially when coupled with congress's power under the 14th and 15th amendment, to regulate voter qualification standards. thank you for the opportunity. i will welcome any questions you have. >> thank you very much, dean. we will turn to the other dean.
10:33 am
correct me for your five minutes. >> thank you, madam chairwoman. i've written on congress is power under the election clause before. in a word the supreme court has used repeatedly for around 142 years, the congress and all power over congressional elections under this clause is paramount. under the unambiguous text of the elections clause in a long line of supreme court cases, congress has blocked dead broad plenary authority in the time and manner of conducting congressional elections. the most recent ex location of
10:34 am
this principle was the justice scalia opinion for seven justices in arizona back in 2013. he referred to the broad and comprehensive scope of congresses election power. in the remainder my testimony, i will provide background what the election clause means and in particular, how it has been construed by the supreme court. the elections clause, the text of which madame chairwoman read earlier, allows states to prescribe rules for the conduct of congressional elections. but only insofar as congress declines to preempt state legislative choices. justice collegiate -- justice scalia explained that this grant of congressional power to congress was insurance against the possibility that states
10:35 am
would try to undermine the union by either failing to have procedures for congressional elections are having one's that were in attic, as he put it, the state legislature otherwise included any moment annihilate it by neglecting to provide for a choice of a person to administer its affairs. congress has exercised its broad power to regulate federal elections repeatedly through the 1842 apportionment act, the post-civil war enforcement act of 1870 and 1871 and more recently, through the national voter registration act and help america vote act. i won't go through all the president that supports these and other laws in which congress has previously exercised its election clause power but i will give you some highlights. the first big case was in 1879, a case involved the
10:36 am
reconstruction era enforcement acts. in that case, the court said congress may exercise its power as it sees fit and when exercised, the action of congress so far as it extends and conflicts with the regulations of the state, necessarily supersedes them. in smiley versus holmes, 1932, the court said congress may provide a complete code for congressional elections if it wishes which includes registration, supervision of voting protection, protection of fraud practices, counting of votes, duties and inspectors and making publishing election returns. there was a time in the early 20th century where the court said the elections clause did not reach primary elections but that was reversed in the united states versus a classic case in 1941 where the court clarified that the elections clause does allow congress to reach primary
10:37 am
as well as general elections. that power under the elections clause is not unlimited stuff the court in the case said that power doesn't include the power to dictate election outcomes to favor or disfavor a class of candidates or even eight important >> that was 10 minutes. >> thank you. congress does have very broad power and as justice scalia explained it, power is broader than under other clauses of the constitution. there is reason for treating election clauses differently than other constitutional powers because in the election clause area, congress is not asking where the states have pre-existing authority before the constitution. that is a question of where the
10:38 am
congress election clause ends. it begins but supreme court -- supreme court precedent confirms the elections clause means what it says that congress has the broad power to make or alter rules governing the times, places and manner of conducting congressional elections, thank you. >> thank you very much. last we had the secretary of state, michael adams. thank you for joining us in your recognized for five minutes. >> thank you so much. good afternoon, i am the deputy secretary of state. it's an honor to be with you today. i understand the topic of discussion is the election clause in our constitution. any data congress spends considering her compass -- our constitution is a good day and i wish you every success. my purpose is to address policy concerns of congress increasing
10:39 am
congresses role in elections for congress. here is some background, i took office last year and the elections i supervised as my state's chief election official took place amid the pandemic. i asked the legislation for emergency powers to be shared with our democratic governor that led us to implement temporary changes to our election system to ensure public safety, voter access election security and standard absentee voting and we established early voting for the first time in kentucky history. the days before air june, 2020 primary election, kentucky was singled out in a national campaign of harassment and hate with accusations of voter suppression step our phones were clogged with angry callers from washington, d.c., california and new york sometimes threatening violence. this was directed at us by celebrities on twitter including a certain member of congress who now chairs the senate committee.
10:40 am
when the dust settled, kentucky had conducted the most successful election in america at that point in the pandemic step it was safe, orderly and with high turnout. kentuckians had a better run in elections than the -- then the dish then did the national media or politicians. the extended voting reforms we implemented were so successful and so popular that our legislature made most of them permanent with both chambers bipartisan and unanimous. the national leader this year and election reform, we are not alone. bipartisan legislation and expanding voting opportunities has passed in louisiana and vermont as well. why was kentucky able to pass a bipartisan election reform measure, the most significant modernization of our systems and 1891 that made it easier to vote and harder to cheat and had widespread support across the political divide?
10:41 am
why did louisiana and vermont follow suit? because we allow democracy to work. there are two lessons here. kentucky knows best what's best for kentucky and i would urge you to let kentucky be kentucky, let louisiana be louisiana and vermont the vermont and respect democracy that leads to innovation in a decentralized election system. vermont passed mail-in voting that reflects their political culture. in kentucky, even with the expanded absentee voting and even in a pandemic, most voters last year including most democrats voted in person. that refund -- reflects the power of political position. election policy should be made not by a caucus, not by a think tank but by election administrators or work in a bipartisan fashion step bipartisanship not only leads to better results, it also shows voters on both sides that the
10:42 am
rules are not being rigged to favor one party over another. state legislators acting in a partisan fashing in passing legislation, i would encourage you to avoid doing the same things yourselves. do not be victims of a false narrative step i don't agree with every reelection solution that's been offered by every state legislature but the reality in the ground is more obligated. the desire to accuse red states especially southern ones of voter suppression is so strong that media outlets covering kentucky's achievement are rewriting their own covers to suit the narrative. on april 8, cnn reported that the kentucky governor signed into law bipartisan elections bill expanding voting access. on june 30, cnn reported 17 states have enacted 28 laws, making it harder to vote and included kentucky in their account. in april 8, the washington post
10:43 am
reported the democratic governor sought to expand voting. on june 21, the washington post concluded -- included kentucky in 17 states that were undermining democracy. the cognitive dissidents is so strong that these outlets believe and accept facts from their own recordings which contradicts the narrative. our politics has grown increasingly harsh and even dangerous. the more error big decisions are federalized, i urge you to respect diversity other country in the majesty of ar-15 different but well-functioning election systems, thank you so much. >> thank you mr. secretary. we now come to the time when members of the committee may ask questions for about five minutes. i will turn first to congressman raskin was also a law professor. you are recognized. >> thank you so much.
10:44 am
thanks to all the witnesses for their testimony. let me start with you. american history has been to the forefront of expanding and defending the franchise. new jersey gave women the right to vote at the beginning of the republic but at the same time, states have often been in the forefront of disenfranchising people. there have been other attempts to disenfranchise. what do you make of the claim we just heard from secretary adams that we should just trust the states and let kentucky be kentucky and let new york new york and let every state be themselves? is this consistent with how we have respected voting rights over the last century? >> thank you so much for that question. there are two important principles here. we have to recognize both of them.
10:45 am
states are laboratories of democracy. it is a great thing about our federal system that states can experiment as they so often do. that includes experimenting with election or -- reforms like same-day registration that a number of states have experimented with and have proved quite successful in making it more convenient to vote and increasing turnout. on the other hand, there is a competing rentable -- principal which in the end, congress has to have the authority to regulate congressional elections. that includes regulating to protect the fundamental right to vote. it has sometimes. one of the first noteworthy examples are the enforcement act which has been written about.
10:46 am
it was absolutely vital for congress to exercise its authority under the elections clause as well as the 14th and 15th amendment in order to protect the voting rights of newly freed african-americans. so too, after the appalling disenfranchisement of african americans that plays after reconstruction and throughout most of the 20th century, it was again necessary for congress to act under its election clause authority to protect the right to vote. we do want states to be laboratories of democracy but at the same time,, congress has to have the same time to regulate the right to vote as the election clause allows. >> i want to go to the other point raised by secretary adams about election administrators.
10:47 am
what to make of the claim that we should really delegate to election administrators that they are better judge of what america needs in terms of voting then say the representatives of the people in congress and the house? i was struck by that. there is no one more powerful than the u.s. senator mitch mcconnell in all of congress. i don't think he has a worry about kentucky's point of view in any event, i noticed there is an attack on them -- on election administrators going on. we saw that in 2020 when donald trump literally was calling election administrators and telling them to it revise their vote. he called the secretary of state in georgia and said just go find me 11,000 votes, that's all i'm looking for. after that appalling attempt election fraud, it was exposed
10:48 am
to the whole world rather than everybody apologizing for it and trying to figure out what we do to protect election administrators, now there is an effort to displace him and run somebody against him so they have a sufficiently advantage and subservient secretary of state in georgia. it's amazing to watch that. what about the idea of the increasingly partisan election officials were being targeted around the country should be deferred to in terms of the voting rights of the people? >> thank you so much for that question. i appreciate the point of secretary adams. the state laboratories produced some of the most disenfranchised systems. the 1890 election
10:49 am
disenfranchised most african-americans. other southern states followed suit. the point is well taken but at the same time, sometimes they are laboratories for ill. there is a list of things that will serve as a national conception of democracy. democracy cannot be a state level democracy. we have to have a sense of who we are as a national democracy. i think hr one served that goal. >> would it be ok if the professor answered my question? >> bureaucracy is something of an innovation. the best way to think about this is from a quasi-original perspective.
10:50 am
we recognize the fundamental concept or fundamental tension were involved into levels of the legislature. you would have secretary of state at the state level and those responsible for elections. it would have been an anomaly in that time. the idea is the motivations working with the motivations of the bureaucratic sense. >> the gentleman's time has expired and we will now turn to the gentleman from georgia, mr. loudermilk. >> thank you and i appreciate everyone being a part of this hearing today. before i get into my question, we need to separate the argument of the constitutionality of congress's ability to set the
10:51 am
times, place and manner. there are really two issues that are being contained in this argument. the first is the qualification of electors. that is very specific within the constitution and our founders and the courts have upheld that the constitution establishes a qualification of elections. this is what happens in most of congress has the ability through the constitution to establish with the electors can be in the states do not have the ability to insert that. that is set in the constitution and has been upheld several times. the second aspect is the times, places and manner which our founders said should be taken literally. the british system was very broad when it talked about times, places and manner and included electors in that system but our founders and their debates in the constitution and
10:52 am
the federal system were specific on the times, places and manner and as it was brought up earlier, hamilton made the argument that every government but to contain within itself, the means of its own preservation. the reason for this was during the ratification of the constitution, the anti-federalist and those opposed to this division believed that factions or parties that we we -- as we would call them today could manipulate election losses they could stay in office indefinitely. a quotation that comes out of the federalist papers, hamilton clarified that after he said ever government ought to contain within itself, the means of its own preservation. he argued that the provision was a reasonable compromise to give congress the secondary powers that be exercised in whatever extraordinary circumstances
10:53 am
might render that position necessary to its safety. what hamilton is saying is that the states had the primary power that congress only has a secondary or default power. his argument was in the case of states settings times, places and manners, if they would not fill the seats for congress, they could manipulate and hold congress hostage if they didn't and that was the secondary argument that they were making. congress has that secondary power not the primary. yes, the federal government has a primary responsibility of electors is getting convoluted in the argument is that i think we can separate that will step the states hold the primary responsibility for times, places and manners.
10:54 am
secretary adams, according to article one, section four, through all of this, the states have the primary responsibility for setting that and even still, many of my colleagues on this committee in this national takeover elections would circumvent the true intent of our founders and the constitution. my question is how with his one size fits all approach tax election officials across the country, especially kentucky? >> thank you, congressman. let me give you a riveting example. back in december as i was drafting my election report measure for kentucky, the biggest change of our system,
10:55 am
the modernization of our system, we made absentee voting easier, we extended early voting and so forth. i had a meeting with a high level official in our state and to my surprise, he told me don't expand mail-in voting. he said my community doesn't want that. that struck me. you think mail-in voting, was not supported in our state. it's great for them and i respect that but in kentucky, half of the americans want to vote in person, everybody does. we are just different, that's our tradition and that's how people feel we have to let each state do it their own way. >> i see my time is expired. i have other questions for the record. in response to your answer, we
10:56 am
know in person voting is the most secure and that's why many people prefer to do that, much more secure than mail-in voting and traditionally, that's where we've seen the largest amount of fraud. >> the gentleman from north carolina, mr. butterfield is recognized. >> thank you very much, madam chair for convening this important hearing today and thank you to the witnesses for your testimony. it's good to see all of my colleagues. i look forward to our return to washington. adam chair, as a law student many years ago and a lawyer, as a trial judge and supreme court justice over the years, i have had many occasions to read and reread and study court opinions and law review articles all about the elections clause. i come to the same conclusion every time i read it and read about it.
10:57 am
the elections clause seems to me to be unambiguous. i want to begin today by asking each one of our witnesses the very same question. should congress choose to pass a regulation affecting federal elections? do you agree or disagree? that such regulation will preempt those passed by a state? let me go to each one of the witnesses. i will go in the same quarter you testified. -- in the same order you testified. >> i'm just a working historian. the basic answer is yes. i see no harm in it. >> is it unambiguous in your world? >> yes.
10:58 am
>> all right, next witness. >> it will preempt state laws and create new laws in some places. in some cases, if there are state laws that conflict, than absolutely. >> representative butterfield, i agree it is unambiguous that under the elections clause, congress has broad plenary power over the time, place and manner over conducting congressional elections and you don't have to take my word for it. that's what joseph scalia wrote in the arizona case. >> secretary adams, before you
10:59 am
respond, you noted in your testimony that you were testifying today primarily about politics. in other words, whether congress should pass election legislation. for the sake of clarity, when it comes to the narrow legal of whether congress can pass legislation and that's what my first question is about, would you agree the elections clause is the broad and expansive authority to regulate congressional elections, putting aside policy concerns? >> it's kind of a subjective question with a subjective answer. there were certain things congress can do. there are guardrails in our constitutional system. we are a system of dual sovereignty, the states and congress. we see in supreme court decisions congress cannot require states to >>
11:00 am
>> if i could finish my answer. congress can tell the states to do in coming due them, required to do certain things in exchange. if you're asking if i think we have seen it -- significant authority, i think we do. >> mail-in voting? >> i can't tell you. >> a moment ago, you mentioned that african-americans in kentucky want to vote in person. how did you arrive at that conclusion? >> a couple of things. one, i was told by a high-ranking official -- >> poll after poll come all across the country, contrary to that decision. majority groups and all groups want the ability to vote absentee as well as early
11:01 am
voting. let me move on, if i can. my time is running out. i don't have enough time for my final question, so i yelled back. >> thank you. >> thank you very much. there are more and more people that do have access. from the university of wisconsin law school [indiscernible] the importance of providing a mandatory vote by mail, which will guarantee an increase in voter turnout. >> in kentucky, i don't think
11:02 am
that it would. in kentucky, our culture wants to vote in person. 98% vote in person, 2% absentee. i worked hard to make voting as easy as possible. that is why come in kentucky, they vote in person. that is how we choose to vote. >> political cultures are different in different states. how people prefer to vote, it in kentucky, you may want to cast your ballot -- it may be different in utah or wisconsin. [indiscernible] >> if i could make one overall point, i am not here to criticize. that is not my argument.
11:03 am
i don't want to say democratic or republican bill change the election rules. i think california or colorado would be upset. things are different. utah has a vote by mail system. they seem to like that, i don't question that. that is super for them. i think the best way to expand the franchise in kentucky that resolve last year is that even though we made available to all people, they wanted to vote in person. the easiest way and most cost-efficient way was extending the number of days people could vote in person. >> [indiscernible]
11:04 am
is the best government to do with that the state government or the national government? >> look at the record and look at what we accomplished in kentucky. with regard to election administration -- the policies achieved. we could do that because they didn't take over the system and allowed us to have a space for democrats and republicans to come together and pass something. it was idealized by republican secretary of state and signed by democratic governor. >> you are also an elections attorney. can you walk to your interpretation of the election clause? >> yes. i will be first to research that issue. i don't have a whole lot to add in terms of the history or text
11:05 am
of that. >> i appreciate your testimony here today. what that, from rural america, yelled back. >> the gentleman yields back. five minutes. >> thank you very much. i am traveling myself. >> you are coming through. >> thank you. i have been anxious to have this discussion about article one section four. way back in the day, longer than i care to admit, it is great to be at this hearing today because of national authority calling the original meeting of the constitution -- [indiscernible]
11:06 am
i would like to direct my first question to article one, section four. the second half of that clause is what gives congress the power to do something different than state legislatures choose to do. can you talk about the clause? >> the clause did not originate in the larger convention. they met between july 26 and august 28. the convention is to that point.
11:07 am
the idea originated -- [indiscernible] it was discussed primarily because to south carolina delegates -- two south carolina delegates. they had a peculiar standard to set the stage. the colonial to state legislature dominated the politics of the state. but once they made the proposal, 45 other delegates spoke robustly in opposition to it. the important point i want to
11:08 am
stress, it does involve thinking historically about change over time as much is legally. about decisions and actions. it is to realize that this was a deeply experimental process. there was no example of designing the kind of national political system that they were creating. in my original statement, i talked about the british practice which is two nights for every county, and the department of representation is done in a corporate basis. there is no idea of expanding the kind that americans are about to have. there is a lot of genuine and certainty in the beginning. about who is going to represent the states, as aggregate constituencies. pennsylvania in 1789 voided for the entire state delegation -- voted for the entire state
11:09 am
delegation. these were all the possibilities. the important thing to stress is there was a strong perspective dimension, makes per mental dimension to the clause. the idea -- experimental dimension to the clause. the idea that you would learn more based on experience. that would also look at issues of discrimination. there was an 18th-century way to think about this. people should be equally represented and legislature. in some ways, that is a modern notion. thinking about the second half or the better part of the clause in these terms would be really helpful. it is notched about protecting the states. it is about models of national representation broadly defined
11:10 am
in congress. >> coming from pennsylvania, were over the past decade we have had a number of different voter id laws, gerrymandering, etc. with republican legislature where the house majority leader was reported stating that many of these provisions were implement it in order for his party to retain power, that seems to me like the very type of conduct that they were rightly skeptical of. we are hearing about states having certain cultures of voting. we know certain communities have cultures of voting. for example, the black community that has addition of voting on sunday after church. -- a tradition of a voting on sunday after church. we have seen state legislature try to undermine that tradition. i am interested in the skepticism of the types of activities they were speaking
11:11 am
with legislatures including closing polling places and preferring certain voters over other types. i don't know if i can get an answer, but i will yields back as my time has expired. >> i recognize the young lady from new mexico for her five minutes. you are on mute. there we go. >> thank you. and our witnesses for their important discussion on the constitutionality of federal voting laws. you discussed how the founder so delicately described the need to protect the ability of voters to elect a representative assembly bat, and john adams words, was a miniature. an exact perch of the people at large of the country. -- threat -- portrait of the
11:12 am
people at large of the country. today, it is supposed to be every american citizen. they need to be able to elect representatives that reflect them. our concern is that is not happening. the restrictions, in terms that are being enacted, are being targeted so that certain communities cannot succeed in getting the beautiful threat -- portrait of themselves in congress. can you explain how the election clause and its history applied to these present-day concerns? aren't the concerns a similar? >> i will refer to my two colleagues have written so much about theories of discrimination in the is a voting. earlier, the states are viewed
11:13 am
as laboratories of democracy, which you can see equally well the states have served as laboratories of discrimination. that is the whole history of the jim crow era restrictions. it was created during the time of reconstruction. the question all of us are considering today, particularly in the aftermath of the shelby county decision, is whether or not we are seeing -- not a full scare revival on the basis of what happened in the 1890's, but whether the clause being enacted at a state level will have discourage or effect. congress, as you all know, went to great lengths on the voting rights act to deduce the data that the courthouse seems anxious to deny. the question on the history side -- it was something that both the federalists and antifederalists actively debated. there is a fascinating edge --
11:14 am
passage trying to imagine what ideal congress would look like. it's got what we would call a middle-class following. it is easy for people to get together and decide what they are going to do. they are going to intimidate these other characters. it is important, every member of congress should know -- to be reelected was not the dominant mode of 18th-century politics. the main term of service in the house of representatives down to about 1890 was three years. meeting the vast majority of members served one term or two. the whole idea that our politics would be driven, including the gerrymandering process, voters doomed to choose representatives. -- voters don't choose
11:15 am
representatives. representatives choose their voters. most representatives were amateurs. they would come and go. they would rotate in office. i think madison is a good example of this. how much of what we are debating about today was actively anticipated by madison? including the distrust of state legislature. behind the federalist movement was the idea that state legislators cannot be relied on to do their federal duty. if medicine is so open, maybe he is wrong. -- madison is so open, maybe he is wrong. >> thank you, professor. i wanted to get to one other question. it strikes me that unlike rural wisconsin, everyone has good
11:16 am
access to basic infrastructure. i represent a rural district. many of the areas i represent do not have such infrastructure. in high poverty areas of my district, especially tribal areas, access to fancy phones is hard. but in response to state laws that were hindering native americans access to the ballot, to our important provisions for native americans voting. it includes provisions to ensure states receive pop up once so we have a fair rating. what is your response to those who suggest that these and other provisions in hr one are unconstitutional? >> they're not. part of it -- the text means what it says. this is something that has come out across the course of this hearing. states are mentioned first, that his biggest states get the first crack at setting the time and place and matter of elections. not because they are the primary focus of the elections clause.
11:17 am
when you look at the history as recounted by the professor, consider the fact the general veto all state laws. i think the fact that the general veto was rejected and limited veto on the elections clause illustrates the distrust the national government had with respect to state legislature over the issue. in short, the elections clause provides broad authority for all of hr one. let me wait -- make one other point. making voting harder is not a political culture. a person gerrymandering is not political culture. where states are abusing the authority, congress has the power to step in. >> thank you, my time has expired. >> i see that ranking member mr.
11:18 am
davis has joined us. mr. davis, you are recognized for five minutes. >> thank you madam chair. it's great to see the witnesses. sorry i haven't been able to be on the entire time, but we have been keeping tabs on the testimony and keeping an eye on mr. style. i don't want a coup d'etat on the ranking side. it is great to see everybody, can't wait to see everyone in person. i want to start my questions with mr. adams. mr. secretary, i do want to say thank you for coming here today, it was great to see you a few weeks ago in washington. as the chief election official for the state of kentucky, do you believe government should mandate how states and jurisdictions administer elections? >> i don't have a problem with the voting rights act and basic revisions. there is some good stuff that congress is going to pass.
11:19 am
but i don't want is a micromanagement of our election systems. states are different. that is my first argument. a second argument is come up with respect to congress, i think we do a better job at the state level of a finding space across the aisle to work with each other and get things done. it is a less toxic atmosphere than what you have in washington. >> it is pretty easy to get a less toxic atmosphere anywhere compared to washington, d.c. you look at the last two election cycles, mr. secretary. we saw a record midterm turnout in 2018 and record presidential year turnout in 2020. the democrats on this committee have not been able to produce a single voter whose vote was suppressed. of course, even stacey abrams has testified before the committee that voter turnout does not matter. can you explain that one to me? >> i'm sorry, what was the last part? >> even stacey abrams testified before this committee that voter turnout does not really matter.
11:20 am
i'm lost. can you explain how that makes sense when we have record turnout, have not been able to see a single voter whose vote was suppressed, and they are leading a voice on voter suppression, miss abrams said that voter turnout does not matter. i think it does. do you? >> i think it does. i am proud that in our election last year, in the midst of a pandemic, we had the highest turnout we ever had. over 2 million voters voted. i took some hits from my side of the aisle for decisions i made to make voting easier, but we did in a way that protected security of our elections. we made voting easier. we expanded early voting. we found at about seven out of 10 voters, even in a pandemic, prefer to vote in person instead of by absentee. i don't have a problem with absentee voting. but i think we should permit the
11:21 am
states to respect the wishes of their constituencies and come up with a law that works best for them. >> did any of these changes, like vote -- photo id, impact voter turnout? >> the first lie got past was a photo id to vote. that was an issue that i ran on. there was little concerned about the sky falling and so forth. we didn't find that that disenfranchised anybody. we had record turnout. to be clear, our voter id law was very humanely drafted. we bent over backwards to sit down with interest groups on both sides to make sure we didn't have anything in there that would prevent anybody from voting. we were humane and how we did it. the fact is, even in a pandemic, we insured people got to vote. >> you guys had to work with
11:22 am
local election officials on these reforms prior to enactment. any offer to vote by mail in 2020. can you tell us briefly, how did you work with local election officials to get these reforms and many of my colleagues on this committee may think are impossible to implement? and how did your vote by mail process impact in person voting in kentucky in 2020? >> it is important that election administrators be at the table, at the center of the table in devising election rules. these should not be written up by her caucus. they should be done with election administration at the table. we need to stay logical and practical. we have to engage in the customer service business. in our state, we found that democratic county clerks and urban county clerk's did not like relying on mel-based voting. -- mail-based voting. if you have an age or disability
11:23 am
, we allow absentee. we found that the way most republicans wanted to vote in person. the question was, how do we achieve that? we expanded early voting for the first time in history. >> thank you very much to all the witnesses. i ran out of time. i appreciate the opportunity. madam chair, i have to jump off. thanks again, everyone. >> the ranking member yields back. i recognize myself for a few questions. it has been alleged that if congress exercises its jurisdiction in the elections clause, it would constitute constitutional problems of anti-common during and specifically i am interested in
11:24 am
the redistricting divisions. whether the court has addressed this issue. can you address that? >> thank you for that question. in the decision, which committee members will recall rejected constitutional challenge to partisan gerrymandering, the courts reaffirmed congresses broad power to regulate congressional elections, specifically including redistricting. the court referenced favorably the act of 1842 which was the first exercise of congress's power over the process of drawing congressional districts and the congressional revisitation process. it went on to explain that congress specifically does have the power to make laws regarding
11:25 am
congressional districting. there wasn't much question about congress's power to regulate congressional redistricting. if there ever was, riccio definitively resolves that. there is no doubt that congress, under the elections clause, has the ultimate power over the rules regarding congressional districting. >> let me ask you, professor p. why were the framers concerned about state lawmakers trying to stick lines. -- drawing district lines? >> the best answer is reconstructing the political atmosphere. essentially, it is a function -- the first system of american federalism, the articles of confederation, allowed congress
11:26 am
to recommend to the states what needed to be done for national purposes. resolutions, recommendations. it's based upon the declines of the states with decisions made by the continental content. it is what they would call vices. it is recurring to breakdown. in fact, representative fundamental decision for the national government to work, and had to be confident to enact and adjudicate its own laws. elections were complicated, because you are trying to elect local, state and federal officials. the general failure of the states to fulfill their federal duty was the entire pretext for
11:27 am
setting up national legislature. [indiscernible] between the time, place and manner clause, to override. giving congress a negative clause. in fact, the article in section four is an aversion of medicines -- madison's. it had negative and positive connotations. issues on one hand, or you may come up with better ideas. which is what happened in 1842. >> madison, as you noted in your testimony, warned that they additional convention that states might try to manipulate
11:28 am
election laws for partisan gain. do you see any parallels between that worry at that time of current events? >> just reactively? yes, i do. as you know, congresswoman, i am first and foremost an 18th-century guy. there is legislation out there whose consequences we are waiting to see. i will speak for madison, since i spend almost every day thinking about him. he would not be surprised to see this. it is consistent with his analysis of what is wrong with state politics. we are likely to get the wrong kind of factions at the state level than the national level. if it's within his rubric very neatly. it fits within his rubric very neatly. >> the time of all members has
11:29 am
expired. as we close, i would like to note that i have rarely had concern about local election officials. our concern has been with some legislative bodies that are enacting legislation that governs those actions. before we conclude with unanimous consent, we will add the following items to the record. federalist papers number 59, 60 and 61. the constitutional authority statement for hr six aa two. the constitution hundred 60 of congress. the constitutional authority statement of hr 312. and at the 1/16 congress. from the hundred 16th congress. -- 116th congress. those materials will be made part of the record. as has been noted, members
11:30 am
may have additional questions for witnesses. submit those in writing and we request you answer them if you are able. the record will be open to receive the answers to those questions. i want to think this panel for outstanding testimony today. very enlightenin >> c-span's or unfiltered view of government. co-funded by these television companies and more and shooting -- including charter communication. >> broadband is a force for environment -- empowerment. that is why it is building infrastructure, upgrading technology, and powering opportunity in communities big and small. charter is connecting us. >> charter communications supports c-span as a public service, along with other television providers, giving you a front row seat to democracy.
11:31 am
>> today, on the communicators -- >> the reason why ransomware has become such a problem is it has become a huge threat, not only a cyber criminal threat but because of the implications for critical infrastructure like pipeline companies or the largest meatpacking -- meat supplier in the contro -- country. ransomware as a concept is simple. unfortunately, defending against it is becoming increasingly complex. > he oversaw the justice department's national security and cyber crime investigations during the trump administration. he discusses recent ransomware attacks and other cyber threats. today on the communicators at 6:30 p.m. eastern on c-span. ♪ >> sunday night on q&a, jessica
11:32 am
delong was chief engineer of the historic fire vote john jay harvey on september 11 when it was called back into service to eight firefighters following the attacks on the twin towers in her book "saved at the seawall." she tells the story of the mariners who came to the rescue of thousands. >> the maritime evacuation that delivered nearly half a million people to safety is an incredible example of the goodness of people, that when you are given the opportunity to help, you have the tools, the skill set, you have the availability that people over and over again made the choice to put themselves in harm's way for the sake of fellow humans, and that is very instructive and something we really need to continue to remember. >> jessica dulong sunday night at 8:00 p.m. eastern on c-span's
11:33 am
q&a. you can also listen to q&a as a podcast wherever you get your podcasts. ♪ >> members of the u.s. house delegation from texas marked -- join texas state legislators to talk about the states special legislative session to vote on republican voting bills. texas state democrats fled their home state to prevent a republican legislature on having a quorum to conduct business. this is about half an hour. republican le


info Stream Only

Uploaded by TV Archive on