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Why it’s wrong to call the voting rights bill a federal takeover
If Your Time is short
Democrats proposed voting legislation that would set uniform rules for voter registration and casting ballots. A section of the bill would restore the power of the federal government to vet new state laws to make sure they don’t discriminate against voters. Republicans blocked the legislation.
Some Republican lawmakers have described the legislation as a federal “takeover” because it expands the federal role in setting rules that are currently set by states. But the legislation would not wipe out the role of state and local officials to administer elections.
The U.S. Constitution gives states and the federal government a role in federal elections.
In Arizona, citizens can vote early for nearly a month before Election Day. In New Hampshire, early voting doesn't exist. In Florida, any voter can request a mail ballot. In Texas, only some voters can vote absentee, such as those who are old, sick, in jail or out of town.
Democrats say this patchwork of state rules makes no sense when citizens vote in federal elections, and have pushed legislation to create uniform rules. Republicans have blocked that effort, arguing that the powers belong in the hands of state lawmakers. Many Republican lawmakers have derided voting rights legislation as a "federal takeover" of elections.
"This is not some modest bill about ballot access," said Senate GOP leader Mitch McConnell Jan. 19, the day an effort to push the voting rights legislation past a Senate filibuster failed. "It’s a sprawling takeover of our whole political system."
McConnell referred to the legislation as a "federal takeover" of elections in an interview the next day on Fox News.
The Democratic-backed legislation — the Freedom to Vote Act, which now incorporates legislation named after the late congressman and civil rights activist John Lewis — would expand the federal government’s role in setting uniform rules, such as about acceptable forms of voter ID. But the text of the legislation and most experts we talked to suggest that calling it a federal "takeover" is a mischaracterization, because it would still leave intact many election administration powers held by state and local officials.
We’ve reviewed similar claims in the past that a particular measure pending in Congress represents a federal takeover of a particular function or industry, such as health care or child care. It’s a common talking point among conservatives who favor limited government or states’ rights. In fact-checking such claims, we’ve considered whether the measure calls for the federal government to assume total control of the sector, or whether it just adds a level of regulation that the Constitution allows for.
"The ‘federal takeover’ language could be read to imply that the Freedom to Vote Act would result in state and local election officials no longer running elections," said Rebecca Green, election law professor at William and Mary University. "That of course is not the case. State legislatures and state/local election officials would continue to run elections in their state, but would be required to administer certain aspects of elections in a more uniform way."
Article 1 of the U.S. Constitution includes a role for state legislatures as well as Congress in governing federal elections.
"The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof," it says in Section 4, "but the Congress may at any time by Law make or alter such Regulations."
This clause shows that "the founders anticipated that Congress has a role to play in determining how elections are run," Green said.
She pointed to multiple examples where Congress exercised that authority, including the passage of the Voting Rights Act in 1965, which banned discriminatory voting practices; the National Voter Registration Act of 1993, requiring states to offer voter registration at motor vehicle agencies; and the Help America Vote Act of 2002, requiring states to update their voting equipment and voter registration records.
Even some conservative champions have affirmed Congress’ power. "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," Justice Antonin Scalia wrote in a ruling on a 2013 Arizona case. "And so far as it is exercised, and no farther, the regulations effected supersede those of the State … ."
The bill that’s now stalled in the Senate combined two pieces of voting rights legislation: the Freedom to Vote Act, a sweeping elections bill, and the John Lewis Voting Rights Advancement Act, named in honor of the former Georgia congressman and civil-rights leader, which aims to reestablish rules that prevent states from passing discriminatory voting laws.
The Freedom to Vote Act is partly a response to restrictive state laws passed by Republicans following the 2020 election that limited early voting, mail ballots, drop boxes and other mechanisms that broadened voting access. It would set uniform policies for voting by mail and in person in federal elections, as well as various aspects of election administration, such as audits of results. The bill would mandate some policies that are already used in many states, such as same-day voter registration.
Ilya Shapiro, vice president of the libertarian Cato Institute, said he views the Freedom to Vote Act as a federal takeover "because Congress would be setting election rules for the whole country." But it wouldn’t be setting all the rules.
Officials at the county or local level would still have the responsibility to process mail ballot requests, operate polling places, set up and test equipment, and tabulate results. State or local officials would still set their own budgets to pay for elections (although the legislation offers federal grants for some initiatives such as training poll workers). Local officials would retain their power to hire election workers, although the legislation sets guideposts for state officials who fire local election administrators.
"No one is proposing that federal officials take over these responsibilities," said Harvard law professor Nicholas O. Stephanopoulos, who has advised some nonprofit groups involved in drafting the bill.
The election bill would establish a federal floor with respect to many aspects of voting and redistricting, but state and local officials could depart upward from this floor, Stephanopoulos said. Nothing would prevent a state from offering more than the required two weeks of early voting in the legislation, as some states already do.
"This is what federal regulation often does — preclude some bad choices by state and local officials but leave lots of good options on the table," Stephanopoulos said.
Rick Hasen, an election law expert at the University of California at Irvine, said it is fair to think of the question of federalization on a spectrum. While there are already many federal rules from laws passed by Congress that impose requirements on states, he said, "the Freedom to Vote Act would expand the federal role by doing things like imposing additional standards for how to run federal elections."
"But it is not a complete federal takeover of elections," he added. "States still would have lots of discretion on many aspects of election administration."
The legislation technically applies only to federal elections — for president and Congress — but as a practical matter it would apply to state and local elections as well because those races often happen at the same time, and it’s impractical to operate under separate rules for contests on the same ballot.
The part of the legislation named for Lewis would restore — and expand — a role the federal government had under the 1965 Voting Rights Act in ensuring that new state voting laws don’t discriminate against minority voters.
From 1965 to 2013, changes to voting laws in certain jurisdictions that had a history of racially discriminatory laws had to go through a federal review, a process known as preclearance. But in 2013, the U.S. Supreme Court ended that practice, ruling that the formula used to determine which jurisdictions had to go through preclearance was outdated, since it was based on practices in the 1960s and 1970s. The court wrote that if Congress wanted preclearance to resume, it "must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions."
The legislation aims to do just that, imposing the preclearance requirement on jurisdictions that had committed a certain number of voting rights violations during the previous 25 years.
For certain types of voting changes, such as stricter voter ID requirements, preclearance would apply nationwide. Other changes such as reducing the number of polling sites would require preclearance if they are in areas with a substantial number of minorities.
"This is a substantial broadening of the VRA's original preclearance requirements, which had been limited solely to certain covered jurisdictions" and others that were added later by courts, said Michael Morley, an election law professor at Florida State University.
But overall, the concept of the federal government reviewing state laws is not new.
"We had preclearance from 1965 to 2013, and it was not considered a federal takeover of elections," Hasen said.
McConnell said that the federal Freedom to Vote legislation is "a sprawling takeover of our whole political system."
The legislation would give the federal government more power to set uniform rules for voter registration and casting ballots, and to review changes to state voting laws to make sure they won’t discriminate against minority voters.
But adding regulations does not amount to a "takeover" of the "whole political system," which implies that the federal government alone would have absolute power over the way campaigns and elections are conducted. Under the Democrats’ legislation, state and local officials would still be in charge of choosing voting sites, hiring local election officials, setting local elections budgets and staffing polling sites.
McConnell’s argument ignores that the U.S. the Constitution gives Congress broad power to make or alter election regulations.
We rate this statement False.
RELATED: Same-day voter registration is on the Democrats’ wishlist. Why do some Republicans oppose it?
C-SPAN, U.S. Senate, Jan. 19, 2022
Sen. Mitch McConnell, Nearly Every Democrat Tried to "Shatter the Soul of the Senate for Short-Term Power" Jan 19, 2022
Sen. Mitch McConnell, McConnell: Democrats’ Latest Election Takeover ‘Compromise’ is "Just a Compromise Between the Left and the Far Left" Sept. 14, 2021
Breitbart, McConnell: ‘Nobody’s Being Discriminated Against in Voting — They’re Making This Up’ Jan. 20, 2022
U.S. House rules committee, Freedom to Vote: John R. Lewis Act, Jan. 12, 2022
Reuters, Fact Check-Delving into social media claims about H.R. 1 (the For the People Act), April 8, 2021
U.S. Supreme Court, Democratic National Committee et al v Wisconsin State Legislature, Oct. 26, 2020
U.S. Supreme Court, Rucho et al v Common Cause et al, June 27, 2021
U.S. Supreme Court, Arizona et al v Inter Tribal Council of Arizona, Inc., et al, June 17, 2013
Department of Justice, National Voter Registration Act of 1993
Congress.gov, H.R.3295 - Help America Vote Act of 2002, Oct. 16, 2002
Brennan Center for Justice, The John Lewis Voting Rights Advancement Act, Dec. 22, 2021
Jamelle Bouie, New York Times, Republicans Think There Is a ‘Takeover’ Happening. They Have Some Reading to Do. Jan. 21, 2022
Sen. Rob Portman, Tweet, Jan. 19, 2022
Sen. Mitt Romney, Tweet, Jan. 16, 2022
Fox News, Senator Rubio Joins Fox News to Discuss Democrats' Federal Takeover of Elections, Jan. 11, 2022
Statement from Sen. Mitch McConnell’s office to PolitiFact, Jan. 19, 2022
Telephone interview, Wendy Weiser, vice president of democracy at the Brennan Center for Justice at NYU school of law, Jan. 19, 2022
Email interview, Rick Hasen, law professor at the University of California-Irvine, Jan. 20, 2022
Email interview, Rebecca Green, William and Mary law professor, Jan. 20, 2022
Email interview, Ilya Shapiro, vice president of the Cato Institute, Jan. 20, 2022
Email interview, Nicholas O. Stephanopoulos, Harvard law professor, Jan. 20, 2022
Telephone interview, Michael Morley, law professor, Florida State University, Jan. 21, 2022
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