Fox News absurdly claims it is unconstitutional for Congress to protect the right to vote
The For the People Act is clearly constitutional under Article 1 and the Reconstruction amendments
Fox News is repeatedly lying about H.R. 1 and S. 1, the For the People Act, which recently passed in the House of Representatives and now is before the Senate. Most of the falsehoods pushed by Fox are recycled from past right-wing voter suppression efforts, but challenges to the constitutionality of the bill are a new twist.
However, the false claims that the For the People Act is unconstitutional because it asserts federal control over the states are an ahistorical “caricature of an argument.” Rather, this lie is in part a byproduct of a failed argument of the former president in his efforts to baselessly challenge the legitimacy of the 2020 election results. Worse, the argument is an ugly reminder of the type of voter suppression the Reconstruction amendments and the civil rights movement were supposed to prevent.
As legal precedent and experts affirm, the For the People Act is a constitutional exercise of Congress’ power to protect the right to vote under both the Elections Clause of Article 1 and the 14th and 15th amendments.
The House of Representatives has passed the For the People Act, which will strengthen and modernize voter protections
NYU’s Democracy Program director explains the importance of passing H.R. 1 in the face of a relentless assault on voting rights by Republican state legislatures. On the eve of the passage of the For the People Act, Wendy Weiser, the director of the Democracy Program at the Brennan Center for Justice at NYU’s law school, told The New York Times, “Voting rights in America are under significant attack, more than they have been in decades — an attack through racially targeted efforts to restrict access to voting.” She also explained:
We’ve been tracking the legislation to restrict and also to expand voting access across the country for over a decade, and right now we have well over 250 bills pending in 43 states across the country that would restrict access to voting. That is seven times the number of restrictive voting bills we saw at the same time last year. So it is a dramatic spike in the push to restrict access to voting.
So we’ve seen this is a growing movement. It’s not brand-new this year, it wasn’t invented by Donald Trump, but it was certainly supercharged by his regressive attack on our voting systems. We’re seeing its impact in Georgia, but also across the country.
[H.R. 1] would create a baseline level of voter access rules that every American could rely on for federal elections. This one would address almost comprehensively the attacks on voting rights that we’re seeing in state legislatures across the country. So, for example, in many states we’re seeing attempts to eliminate no-excuse absentee voting. H.R. 1 would require all states to offer no-excuse absentee voting. Every state would then offer that best practice of voting access, and it would no longer be manipulated, election by election, by state legislators to target voters they don’t like.
The constitutionality of H.R. 1 and S. 1 is clear and based on the history and text of the U.S. Constitution
Campaign Legal Center founder: “As a former chairman of the Federal Election Commission, I know the Constitution explicitly grants Congress the power.” On February 24, Trevor Potter, a longtime Republican elections expert and former Federal Elections Commission chair, debunked an inaccurate op-ed published in The Wall Street Journal that challenged the constitutionality of H.R. 1. Potter also pointed out that the For the People Act is overwhelmingly popular “across party lines.” From the Journal:
The Constitution explicitly grants Congress the power “at any time” to “make or alter” the regulation of the “time, place and manner” of federal elections. The broad grant of Congressional authority is contained in Article 1, Section 4 of the Constitution and was recently noted by the U.S. Supreme Court in the Rucho redistricting case.
In addition, the 14th and 15th Amendments give Congress the power to eliminate racial discrimination in voting and the democratic process, such as restricting or creating barriers to voting, partisan gerrymandering and felony disenfranchisement. Though we had record voter turnout in the 2020 elections, voters continue to be disenfranchised because of long lines, broken voting machines and polling-place closures, disproportionately affecting black, brown and indigenous communities.
2020 elections attorney: “In the end, it turns into a caricature of an argument.” Marc Elias, the prominent election law litigator who took the lead against dishonest lawsuits seeking to overturn the results of the 2020 presidential election, explained to The Washington Post for a March 4 article the absurdity of constitutional challenges to H.R. 1. Specifically, if the federal government cannot exercise its clear powers under the Constitution to protect the vote, a bevy of historically condemned voter suppression laws would be untouchable.
Republicans shifted their message, thanks to lessons learned from their attempts to overturn the 2020 election. Several of those lawsuits cited then-Chief Justice William Rehnquist’s brief argument, in Bush v. Gore, that states’ presidential electors were chosen “in such Manner as the Legislature thereof may direct.”
Numerous pro-Trump lawsuits argued that the language was that literal: Any election reform that didn’t get stamped by the state legislature was unconstitutional, and illegal. The term “illegal votes,” which evokes ballot-stuffing or fraud, was deployed by Republicans such as Rep. Mike Kelly of Pennsylvania to mean any ballot cast under a procedure that the legislature didn’t approve.
“It’s an argument that I take seriously, because it’s being made by serious lawyers in some instances,” said Marc E. Elias, the Democratic attorney who handled much of the party's pre- and post-election litigation. “But in the end, it turns into a caricature of an argument. It’s just not the case that a legislature is immune from determining whether a law is unconstitutional or not. If that was true you couldn’t strike down a literacy test, or a law that was racially discriminatory.”
Constitutional Accountability Center: “The text and history of the Fifteenth Amendment, as well as court precedent, leave no doubt.” In an amicus brief filed before the Supreme Court of the United States on January 19, constitutional litigators defended the Voting Rights Act from a similar states’ rights challenge, and carefully walked through the ratification of the 15th Amendment and subsequent voting protection legislation to prove “Congress has the power to prohibit arbitrary, discriminatory state laws that make it harder for citizens of color to exercise their constitutional right to vote.” From the brief (citations removed):
Both supporters and opponents alike recognized that the Fifteenth Amendment’s Enforcement Clause significantly altered the balance of powers between the federal government and the states, giving Congress broad authority to guarantee African Americans the right to vote and to eradicate racial discrimination in the electoral process. Congressional opponents of the Fifteenth Amendment objected that “when the Constitution of the United States takes away from the State the control over the subject of suffrage it takes away from the State the control of her own laws upon a subject that the Constitution of the United States intended she should be sovereign upon.” Opponents of the Fifteenth Amendment, both in Congress and in the states, worried that Congress would use its enforcement power to “send their satraps into every election district in this country,” and put into effect “registry laws and laws regulating elections at our own doors, enacted by a power we cannot reach or control.” In their view, “[n]othing could be more loose and objectionable than the clause which authorizes Congress to enforce the restraint upon the States by ‘appropriate’ legislation . . . . Under this phraseology, Congress is made the exclusive judge.”
These concerns over state sovereignty were flatly rejected by the Framers of the Fifteenth Amendment and the American people, who explicitly conferred on Congress the power to enact legislation to protect the right to vote free from racial discrimination. In giving Congress the power to protect the right to vote, the Fifteenth Amendment specifically limited state sovereignty.
As the debates reflect, the Framers of the Fifteenth Amendment specifically recognized that a broad legislative power to protect the right to vote against all forms of racial discrimination—both denials and abridgements—was critical to ensuring “the colored man the full enjoyment of his right.”
Slate: Republicans' “constitutional arguments against H.R. 1 are misleading at best, deliberate falsehoods at worst, and generally incoherent.” In a March 8 article, Dahlia Lithwick and Mark Joseph Stern pointed out that Republicans’ own actions show their arguments against H.R. 1 are not only unconvincing, but hypocritical, as they seek to protect their ongoing campaign of voter suppression.
In reality, the Constitution grants Congress the sweeping authority to regulate federal elections “at any time,” including through the preemption of state election laws. Republicans must know this, because in the run-up to the 2020 election, GOP senators introduced legislation that would overturn state laws ensuring that all mail ballots would be counted. Terrified that the pandemic-related expansion of mail voting might aid Democrats, Republicans decided to demonize a practice that was historically favored by their own voters. After the election, Republicans went even further: Conservative senators and representatives voted to throw out the results from multiple states, a move that would disenfranchise millions of Americans who cast lawful ballots under valid state election laws. Republicans’ new rule appears to be that Congress may indeed regulate federal elections but only when it wants to either suppress or nullify votes.
GOP state attorneys general, too, are eager to repeal state election results that they dislike. Many of the attorneys general who signed on to Wednesday’s letter also supported Texas’ bogus attempt to set aside the 2020 results. (They are also members of the Republican Attorneys General Association, the cancerous hate group that actively fomented insurrection on Jan. 6.) These partisans’ farcical lawsuit asked the Supreme Court to throw out every vote in four states won by Joe Biden, then direct each state’s legislature to declare Donald Trump the winner. Back then, they claimed that the Supreme Court, as in nine unelected justices, hold the authority to nullify millions of votes cast pursuant to valid election laws. But now they argue that democratically elected lawmakers in Congress have no power to exercise their constitutional prerogative to create uniform standards for federal races.
Supreme Court Justice Antonin Scalia: “The power of Congress over the ‘Times, Places and Manner’ of congressional elections ‘is paramount.’” The Supreme Court has repeatedly rejected arguments that seek to deny the power of Congress to preempt state control over federal elections. As recently as 2013, in Arizona v. Inter Tribal Council of Arizona, conservative Supreme Court Justice Antonin Scalia affirmed this indisputable constitutional power of Congress to protect the vote. From the decision (citations removed):
The [Elections] Clause’s substantive scope is broad. “Times, Places, and Manner,” we have written, are “comprehensive words,” which “embrace authority to provide a complete code for congressional elections,” including, as relevant here and as petitioners do not contest, regulations relating to “registration.” In practice, the Clause functions as “a default provision; it invests the States with responsibility for the mechanics of congressional elections, but only so far as Congress declines to pre-empt state legislative choices.” The power of Congress over the “Times, Places and Manner” of congressional elections “is paramount, and may be exercised at any time, and to any extent which it deems expedient; and so far as it is exercised, and no farther, the regulations effected supersede those of the State which are inconsistent therewith.”
But Fox News is pushing an ahistorical lie, which turns voting rights precedent on its head
Fox guest Sen. Mike Lee: “Everything about this bill is rotten to the core. This is a bill as if written in hell by the devil himself.” In a March 10 interview on Fox News’ Fox & Friends, host Steve Doocy allowed Sen. Mike Lee (R-UT) to baselessly rant about the constitutionality of the For the People Act.
Fox host Laura Ingraham: “H.R. 1 takes a chainsaw to our constitutional order by ending state control over elections.” On her March 9 show The Ingraham Angle, Fox News host Laura Ingraham attacked the voting rights protections of the For the People Act, fearmongering that the bill “opens the door to rampant fraud and abuse” and calling it a “bag of horribles.”
Radio host Dana Loesch: “To remove from states their ability to police the integrity of their own voting rolls, to remove from states management of elections, that’s unconstitutional.” During a Fox News Hannity segment with host Sean Hannity on March 8, radio host Dana Loesch claimed the For the People Act would “remove” from states the power to manage their elections. Hannity replied, “Yeah, great point.”
Fox host Sean Hannity: The “Constitution is clear. … State legislators decide the place, the manner that this would take place.” During an earlier Hannity interview on March 8 with former White House press secretary Kayleigh McEnany, Fox News’ Hannity referenced the Elections Clause to suggest that the bill was unconstitutional. McEnany awkwardly debunked the Fox host, explaining, “The national United States Congress can come in and usurp that power, which is exactly what they are trying to do, and you would have a hard time challenging that in court.”
Hannity: For the People Act would “unconstitutionally usurp the authority written into our Constitution for state legislatures to determine the time and manner of elections in their individual states.” Hannity had also incorrectly cited the Elections Clause on his radio program earlier that day.
Fox contributor Karl Rove: “Elements” of the For the People Act are “definitely unconstitutional.” Appearing on Fox News Primetime on March 4, Fox News contributor Karl Rove argued that there are “elements” of the bill “like redistricting where the legislature is in charge and I think that is definitely unconstitutional.”
Fox guest Mercedes Schlapp: “H.R. 1 is unconstitutional. Under the Constitution we know that elections are governed at the state level.” The same day of Rove’s inaccurate musing, Former Trump administration official Mercedes Schlapp claimed on America’s Newsroom that the bill is unconstitutional because “elections are governed at the state level.”
Fox host Mark Levin: For the People Act would impose “unconstitutional mandates on the states.” On his radio program on March 2, Fox host Mark Levin read from a piece by The Heritage Foundation which falsely claimed the bill would “federalize and micromanage the election process administered by the states, imposing unnecessary, unwise -- worse than that -- and unconstitutional mandates on the states and reversing the decentralization of the American election process.”
Fox host Emily Compagno: “The Founders specifically with the 10th Amendment left to the state a reserved power of running the elections. So, with this, it would nationalize it.” On Fox News’ Outnumbered on January 26, co-host Emily Compagno cited the 10th Amendment to criticize the bill. During the same segment, guest Leo Terrell argued, “States have the obligation to set forth qualifications for voters within their states. This is a hijack. This is to nationalize it. That's wrong. It's the right of the states to set the qualifications.”
Carlson: “The bill begins by declaring that contrary to Article I of the United States Constitution, Congress has, quote, ‘the ultimate supervisory power over federal elections.’” Fox News host Tucker Carlson claimed on his January 25 show that the For the People Act contradicts Article I of the Constitution. In fact, Carlson has it completely backward.