The worst thing that could happen to American elections is to give Washington, D.C., more power, any more power. Yet I was surprised to learn that many — including supporters of President Trump who are concerned about election integrity — want to do just that.
When I wrote this piece for The Hill titled “No We Don’t Need National Voting Standards,” I was stunned to see so how many commenters have an appetite for federal, nationwide standards on voter ID.
This would be a colossal, anti-constitutional mistake. The power to mandate or standardize American voter ID laws is the same power that could one day ban all state use of voter ID. That’s Constitutional Law 101.
Let’s get something straight up front — voter ID that is free and easy to obtain should be an essential part of each state’s effort to preserve the integrity of elections. It is an important step to prevent voter fraud, but perhaps more importantly, to aid prosecutors in criminal cases when voter fraud is discovered.
Voter ID is good. But that does not mean national voter ID standards or mandates should follow.
The sleeping monster of federalized power over voter ID should not be awakened. Federal power to impose standards for nationwide voter ID is constitutionally dubious. Republicans and election integrity advocates who want to awaken it, and promote national voter identification mandates or standards, would awaken a federal beast that could ultimately ban those same mandates or standards. All across America, states are fighting the federal government so they may execute their constitutional power to craft and uphold reasonable voter qualifications, especially where keeping non-citizens from casting ballots is involved.
Federal standards over elections are the dream of the institutional Left — and the nightmare of America’s Founders.
The Founders only gave the federal government power to set standards over state elections in two areas. First, the Civil War amendments (the 14th and 15th Amendments) prohibit racial discrimination in elections. Second, Congress has the power to mandate the time, place, and manner of federal elections. That power is limited and narrow, and does not reach the qualifications of electors. It was intended to prevent the states from smothering the federal government by not holding elections — hardly a danger we face in 2017.
The Public Interest Legal Foundation is now in federal court defending the power of states to set their own qualifications to vote, including election integrity measures like the power to require proof of citizenship. The Qualifications Clause of the Constitution gives states power over their own elections, including the power to pass photo ID laws.
Advocates of nationalization would have to rely on the “time, place, manner” provision of the Constitution. There’s no other way to justify national election or voter ID standards. The “time, place, manner” clause, more commonly called the Elections Clause, gives Congress federal power to mandate certain election rules in states when it comes to federal elections. However, photo ID does not squarely fall within the basket of setting the time, place, or manner of a federal election.
If you read “manner” to include anything — such as photo ID — then the word “manner” means nothing.
The power of states to pass voter ID laws more neatly fits the Qualifications Clause of the Constitution. It gives states the absolute power to set qualifications to vote. If you have photo ID, you are qualified to vote. If you don’t have it, you aren’t qualified to vote.
Nationalizing a photo ID standard would explode the scope of what is a “time, place, or manner” rule far beyond Constitutional boundaries. It would vest Washington, D.C., with a mischievous amount of power over state elections.
Let’s get another thing straight: voter ID does not prevent aliens from registering and voting.
In fact, many of the aliens getting on the voter rolls are doing so when they are getting photo ID. Across the country, aliens getting driver’s licenses are also getting registered to vote, because all they must do is mark a checkbox saying they are a citizen. No proof of citizenship is required in many states, and the federal government has been blocking citizenship verification efforts.
Proponents of national voter ID must see beyond the presidency of Donald Trump. A vastly different approach to election law could be in the White House in four short years. Up until now, those calling for national standards for voter ID across America were calling for a Congressional ban on any photo ID.
Supporters of voter ID should not want to open up the federal Pandora’s box.
Perhaps we should call it Eric Holder’s Box. National voter ID standards would mean Washington would have the power to ban state photo ID laws.
Still want federal standards?
There is no middle ground here. Consider Mexico, which has a form of nationwide Mexican photo ID for elections. Even if an American version of a photo ID regime were established in the mold of Mexico’s system, it would swing wide the door to greater federal election administration powers. Mexico’s system only works because it benefits from nationalized funding and is centrally managed. Voters in America would trade local control over elections for American ID cards at the polls, whereas Mexicans never had to make such a choice.
Putting photos on Social Security cards might be the only national idea that is safe. But that idea has been around for decades. States would have to amend state photo ID laws to permit the use of federal social security cards at the polls.
But that too should be a state decision, not a federal one.
Why is this so important? Because decentralization of control over elections preserves liberty.
The Founders knew the danger of central authority. They knew people in the future would welcome small trade-offs that undermine this ideal: “National voter ID, but no more!”, they’ll say. So goes the fallacy.
Central authority is a greater threat to the integrity of American elections than voter impersonation at the polls. Even alien voting is a bigger threat to the integrity of American elections than voter impersonation at the polls — and voter ID does nothing to prevent that.
Frustration with voter fraud can make a quick fix look like the best fix. A national voter ID standard is a quick fix that undermines the Constitutional order. It also invites a dangerous counter-strike the next time the Democrats run the federal government — a federal ban on voter ID. That’s an outcome I suspect nobody who cares about election integrity would want.
The answer is to pass good state voter ID laws, no matter how different each one looks. That’s the American way.