Simple majorities in Congress can stop voter suppression

As the threat of voter suppression grows in several states, the U.S. Constitution provides a remedy. Simple majorities in Congress, plus the president, can stop voter suppression — if they choose to act.

Article 1, Section 4 of the Constitution states: “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, except as to the Places of chusing (sic) Senators.” 

Alexander Hamilton’s Federalist Paper No. 59 states that the purpose of this provision was to ensure that the federal government had the power to act at any time to protect its legitimacy. This could be in the extreme case where a state might fail to hold a federal election. Or, a state controlled by an anti-federal faction might burden federal elections in particular. Or, as in the current context, a state faction might seek to suppress the vote of a significant part of its electorate to influence the outcome of federal and state elections in its favor. Section 4 allows Congress to address the resulting impact of such suppression on the public’s acceptance of the outcome of federal elections. 

Clearly, Congress can act in this regard, but the Senate’s filibuster rule dictates that, before a bill can be voted on, a cloture motion must pass by 60 votes. The question, then, is this: Does the Constitution’s specification that Congress may “at any time” by law make or alter such regulations mean that the filibuster rule is unconstitutional in this case? It seems clear to me that it is unconstitutional. How can Congress vote “at any time” if the Senate rule states that a cloture motion must pass first?

In addition, the use of the phrase “at any time” is unique. It clearly emphasizes Congress’s freedom to act in such situations.

House Majority Whip James Clyburn (D-S.C.) has called for a carve-out to the Senate’s filibuster rule for legislation that applies to the Constitution. That may well be a procedure that can gain the necessary support in Congress. But an amendment to the filibuster rule is not needed since the Constitution itself provides the remedy for election reform. The phrase “at any time” is the carve-out.

Opponents of this reading of the Constitution might argue that the Framers tolerated voting restrictions much more severe than those now seen as potentially threatening the legitimacy of federal elections. That argument was used in the U.S. Supreme Court’s Dred Scott decision in 1857 to deprive Blacks of any entitlement to protection of the law. The better understanding of the Constitution is that its terms and purposes must be applied to current conditions and not those of 1789.

Today, there can be no question that suppression of the vote of Black and Brown urban voters would call into reasonable question the legitimacy of the outcome. Take Georgia’s new law as an example. It requires a photo ID to vote by absentee ballot, even though the photo serves no purpose in that context. A simple reference to a number on the voter registration card supplied to every registered voter confirms identity without imposing an additional burden on the voter. The law cannot be seen as anything but suppressive of the vote of such urban voters.

In the 2020 election, 26 percent of Georgia voters voted absentee — 65 percent for President Biden and 35 percent for former President Trump. Now metro and low-income voters who lack a driver’s license with a photo ID will have to take the time to secure another form of photo ID or locate and copy a bank statement, current utility bill, paycheck, or government document showing the voter’s name and address. Not every member of a family unit who is eligible to vote may be able to produce such a document. 

Rep. Clyburn’s proposed carve-out is one solution, but the Constitution is already explicit. Congress can act “at any time” to prevent voter suppression. How much more authorization does Congress need before it acts to protect the integrity of voting?

Evan A. Davis, an attorney, is a former counsel to New York Gov. Mario Cuomo and was president of the New York City Bar Association (2000-2002).