The “Save America” Act, S/H.R. 7296, currently being debated in the U.S. Senate, contains two controversial voter qualifications. Section 2(b) requires that “to register to vote in an election for Federal office” a person must present “documentary proof of United States citizenship.” Section 3(a) requires that “each individual voting in an election for Federal office shall present an eligible photo identification document.” Both provisions apply only to “an election for Federal office,” which is shorthand for election of U.S. Representatives, U.S. Senators, the President and the Vice President. These proposals raise a serious constitutional question. Does the Constitution grant Congress authority to legislate mandatory qualifications that a prospective voter must meet in order to register to vote and/or cast a vote? The short answer is “No.”
Not one of the approximately 30 Enumerated Powers granted to Congress in Article 1, Section 8, mentions “voters,” “voting” “electors,” or “elections.” The eighteenth and final provision, the Necessary and Proper clause, empowers Congress to enact legislation “necessary and proper” to implement the powers enumerated in Clauses 1-17, and “all other powers vested” by the Constitution in the U.S. Government. Since none of those authorize Congress to enact voter qualifications, no provision in Article 1, section 8, provides constitutional authority for the qualifications in the “SAVE America” Act.
Provisions in the Constitution that do address “elections” and “voter qualifications” start with Article 1, §4, the Elections Clause: “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 . . .” Initially, the Legislature in each State prescribes the “Times, Places and Manner” of elections for U.S. Representatives and Senators. Congress, however, is granted specific authority to “make or alter” regulations pertaining to the “Times, Places and Manner” of holding Federal elections. However, the phrase “Times, Places and Manner” does not include voter qualifications for registration and voting. In Arizona v. Inter Tribal Council of Arizona, Inc. (2013), the majority opinion stated that “the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them.” Article I, §2, cl.1, of the Constitution prescribes a straightforward rule for the composition of the federal electorate. In each State, electors for U.S. Representative “shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” The Seventeenth Amendment, ratified in 1913, adopted the same criterion for determining the federal electorate in elections for United States Senator.
The Commonwealth of Pennsylvania, for example, determines the qualifications necessary to register to vote and vote for the state-level House of Representatives, the “most numerous Branch” of the Pennsylvania Legislature. The U.S. Congress plays no part in establishing those qualifications, and has no power to alter, modify or override them. It is Pennsylvania and its 49 Sister States that possess the constitutional power to determine the qualifications necessary to register to vote and cast a ballot for federal offices. In Oregon v. Mitchell, referring to both, Article 1, §2, cl.1, and §4, Justice John Marshall Harlan wrote, “It is difficult to see how words could be clearer in stating what Congress can control and what it cannot control. Surely nothing in these provisions lends itself to the view that voting qualifications in federal elections are to be set by Congress.”
Echoing these words, Justice Scalia in the Arizona decision, noted that “one cannot read the Elections Clause as treating implicitly what these other constitutional provisions regulate explicitly.” All of which was foreseen by Alexander Hamilton nearly 235 years ago. He wrote that the authority of the national government “would be expressly restricted to the regulation of the times, the places, the manner of elections. The qualifications of the persons who may choose or be chosen, . . . are defined and fixed in the Constitution, and are unalterable by the [national] legislature” (Federalist Papers, No. 60).
Vance Waggoner, a Lewisburg resident, is a retired attorney.