Publius-Huldah's Blog

Understanding the Constitution

The States Determine Qualifications for Voting and Procedures for Registration, and only Citizens may Vote

By Publius Huldah

1. Summary

The federal government is usurping the powers of the States, expressly retained by Art. I, §2, cl. 1, US Constitution, to determine qualifications for voting. And by perverting Art. I, §4, cl. 1, it is also usurping the States’ reserved power to determine procedures for registration of voters.

Consistent with Principles of Republican Government, every State in this Union has restricted voting to Citizens. 1 But on October 26, 2010 in Gonzales v. Arizona, a three judge panel on the US Circuit Court of Appeals (9th Cir.) construed the National Voter Registration Act of 1993 (NVRA) and asserted that Arizona has no right to require applicants for voter registration to provide proof of citizenship. I wrote about it at the time HERE. On rehearing, the en banc Court of Appeals agreed with the panel; and on June 17, 2013, in Arizona v. The Inter Tribal Council of Arizona, Inc., the Supreme Court affirmed.

A few months thereafter, California passed a law which permits illegal aliens to get drivers’ licenses; and during 2015, consistent with the unconstitutional NVRA, passed “Motor Voter” providing that when one gets a drivers’ license, one is automatically registered to vote. 2

The federal government is unlawfully mandating that illegal aliens be allowed to vote in our elections.

2. The Concept of “Citizenship”

Emer de Vattel’s The Law of Nations was a Godsend to our Framing Generation because it provided the new concepts our Framers needed to transform us from subjects of a Monarchy to Citizens of a Republic.3 Book I, Ch. XIX, defines “citizens”, “inhabitants” and “naturalization”:

· “Citizens” are the members of the civil society who are bound to it by certain duties, subject to its authority, participate in its advantages and in the rights of citizens [§212].

· “Inhabitants” are foreigners who are permitted to settle in the country and are subject to its laws, but do not participate in all the rights of citizens [§213].

· “Naturalization” is the process whereby the country grants to a foreigner the quality of citizen, by admitting him into the body of the political society [§214].

So “citizens” have civic advantages and political rights which are not extended to “inhabitants” – and certainly not to aliens who have unlawfully entered a country.4

Accordingly, our Constitution permits only Citizens to serve in Congress (Art. I, §2, cl. 2 & §3, cl. 3); the President must be a “natural born Citizen” (Art. II, §1, cl. 5); Article IV, §2, cl. 1 & §1 of the 14th Amendment refer to the “privileges and immunities of citizens”; and the 15th, 19th, 24th, and 26th Amendments5 refer to voting by “Citizens”.

3. The Federalist Papers show that voting is a privilege of Citizens alone

The slaves in America were “inhabitants”, not “citizens”. They weren’t allowed to vote. Federalist No. 54 (5th para from bottom) tells us:

“…The qualifications on which the right of suffrage depend are not…the same… [in the several States]. In some of the States the difference is very material. In every State, a certain proportion of inhabitants are deprived of this right by the constitution of the State, who will be included in the census by which the federal Constitution apportions the representatives… the Southern States might… [insist]…that the slaves, as inhabitants, should have been admitted into the census according to their full number, in like manner with other inhabitants, who, by the policy of other States, are not admitted to all the rights of citizens…” [boldface added]6

In Federalist No. 60 (1st, 2nd and last paras), Hamilton speaks of the “fundamental privilege” of citizens to vote, and that citizens who are conscious and tenacious of their rights would flock to the places of election to overthrow tyrants. In Federalist No. 61 (2nd para), Hamilton speaks of “the suffrages of the citizens”, and of voting as an “invaluable privilege”.

Over and over, The Federalist Papers show that voting is restricted to citizens:

“In republics, persons elevated from the mass of the community, by the suffragees of their fellow-citizens, to stations of great pre-eminence and power…” (No. 22, 6th para from bottom)

“If we consider the situation of the men on whom the free suffrages of their fellow-citizens may confer the representative trust, we shall find it involving every security which can be devised or desired for their fidelity to their constituents (No. 57, 7th para) … “… that each representative of the United States will be elected by five or six thousand citizens…” (No. 57, 7th para from bottom)

“There is a peculiarity in the federal Constitution which insures a watchful attention in a majority both of the people and of their representatives to a constitutional augmentation of the latter. The peculiarity lies in this, that one branch of the legislature is a representation of citizens, the other of the States…” (No. 58 at 3.)

“…A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations …” No. 68 (3rd para)

4. Webster’s 1828 Dictionary shows our Founding Generation saw voting as restricted to citizens

Suffrage is:

“1. A vote; a voice given in deciding a controverted question, or in the choice of a man for an office or trust. Nothing can be more grateful to a good man than to be elevated to office by the unbiased suffrages of free enlightened citizens.”

Citizen is:

“5. In the United States, a person, native7 or naturalized, who has the privilege of exercising the elective franchise…”

Franchise is:

“1. … the right to vote for governor, senators and representatives, is a franchise belonging to citizens, and not enjoyed by aliens…”

Inhabitants and aliens may not vote unless they become naturalized citizens and meet whatever additional qualifications for voting are set forth in the State Constitution. Naturalization is:

“The act of investing an alien with the rights and privileges of a native subject or citizen. naturalization in Great Britain is only by act of parliament. In the United States, it is by act of Congress, 8 vesting certain tribunals with the power.”

5. State Constitutions set forth the Qualifications for Voting

When we operated under the Articles of Confederation (our first federal Constitution),9 the States determined the qualifications for voting in state and local elections and in elections to the Continental Congress. These qualifications were set forth in the State Constitutions, and varied from State to State.

In our federal Constitution of 1787, the States expressly retained (at Art. I, §2, cl.1) their pre-existing power to determine the qualifications of voters; and ordained that those whom they determined were qualified to vote in elections to their State House of Representatives would thereby be qualified to vote for their federal Representatives to Congress.

Our Framers specifically rejected the idea that the new Congress or the State Legislatures would determine who was eligible to vote. Instead, only The People of each State were competent to define the right of suffrage for their State, and their definition was enshrined in their State Constitution. In Federalist No. 52 (2nd para), James Madison tells us:

“…The definition of the right of suffrage is very justly regarded as a fundamental article of republican government.10 It was incumbent on the convention, therefore, to define and establish this right in the Constitution. To have left it open for the occasional regulation of the Congress, would have been improper … To have submitted it to the legislative discretion of the States, would have been improper … To have reduced the different qualifications in the different States to one uniform rule, would probably have been as dissatisfactory to some of the States as it would have been difficult to the convention. The provision made by the convention … must be satisfactory to every State, because it is conformable to the standard already established, or which may be established, by the State itself. It will be safe to the United States, because, being fixed by the State constitutions, it is not alterable by the State governments…”[boldface added]

Remember! Since the federal and state governments are merely “creatures” of constitutions, they have no power to determine who may vote. That power belongs to the “creators” of the governments. Only The People are competent to set the qualifications for voting; and our determinations are enshrined in our State Constitutions.

6. The States reserved power to determine procedures for voter registration

Our Constitution of 1787 created a federal government to which we delegated only “few and defined” powers [see chart]. Nowhere in the Constitution did we delegate to the federal government power to dictate procedures States must use in registering voters. Accordingly, it is a “reserved” power.11 Until the federal government usurped power over this issue, the States always determined their own procedures for registration. Justice Thomas wrote in his dissent [at II. A. 2]:

“This understanding of Article I, §2, is consistent with powers enjoyed by the States at the founding. For instance, ownership of real or personal property was a common prerequisite to voting … To verify that this qualification was satisfied, States might look to proof of tax payments… In other instances, States relied on personal knowledge of fellow citizens to verify voter eligibility. . . States have always had the power to ensure that only those qualified under state law to cast ballots exercised the franchise.

Perhaps in part because many requirements (such as property ownership or taxpayer status) were independently documented and verifiable, States in 1789 did not generally “register” voters . . . Over time, States replaced their informal systems for determining eligibility, with more formalized pre-voting registration regimes. . . But modern voter registration serves the same basic purpose as the practices used by States in the Colonies and early Federal Republic. The fact that States have liberalized voting qualifications and streamlined the verification process through registration does not alter the basic fact that States possess broad authority to set voter qualifications and to verify that they are met.”

7. The federal government has usurped the States’ powers to determine who may vote and determine procedures for voter registration

The National Voter Registration Act of 1993 (NVRA) purports to require States to “accept and use” a federal voter registration form! The Ninth Circuit asserted that since the federal form doesn’t require applicants to provide documentary proof of citizenship, the States may not require it. This paper exposes some of the false arguments made by the Ninth Circuit’s three judge panel, and sets forth what Hamilton and Madison actually said as to the genuine meanings of Art. I, §2, cl. 1 and §4, cl.1: Arizona’s Proposition 200: What The Constitution Really Says About Voter Qualifications & Exposing The “Elections Clause” Argument.

But the Supreme Court affirmed the Ninth Circuit. Justice Scalia, who wrote the majority opinion, swept Art. I, §2, cl. 1 under the rug and ignored Hamilton’s and Madison’s explanations of Art. I, §4, cl. 1. Scalia asserted:

“The Clause’s [Art. I, §4, cl. 1] 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”….” 12

Scalia said,

“…the NVRA forbids States to demand that an applicant submit additional information beyond that required by the Federal Form…”

and concluded,

“… the fairest reading of the statute is that a state-imposed requirement of evidence of citizenship not required by the Federal Form is “inconsistent with” the NVRA’s mandate that States “accept and use” the Federal Form…”

So what should we do when federal courts issue unconstitutional opinions?

8. Our Framers said nullification is the natural right, which all admit to be a remedy against insupportable oppression

The federal government has refused to control our borders and, as a result, we are being invaded. The federal government is demanding that invaders be allowed to vote in our elections. We have no obligation to obey unconstitutional dictates of the federal government. See Nullification: The Original Right of Self-Defense. What does your State Constitution say about qualifications for voting? Demand that your State government enforce your State Constitution.

And Remember! As Hamilton told us in Federalist No. 78 (6th para), federal courts can only issue judgments – they must rely on the Executive Branch to enforce them. So the President’s “check” on usurping federal judges is to refuse to enforce their opinions. States must man up and obey the Constitution instead of unconstitutional dictates of the federal Legislative and Judicial Branches. Do you think that President Trump will send out US Marshalls or the National Guard to FORCE States to allow illegal aliens to vote? The iron is hot – the time to strike is now.

Endnotes:

1Justice Alito’s dissenting opinion in Arizona v. The Inter Tribal Council of Arizona, Inc. says (2nd para):

“…Exercising its right to set federal voter qualifications, Arizona, like every other State, permits only U. S. citizens to vote in federal elections, and Arizona has concluded that this requirement cannot be effectively enforced unless applicants for registration are required to provide proof of citizenship…” [boldface added]

2 The California legislature thus violated Article II, Section 2, California Constitution which says, “A United States citizen 18 years of age and resident in this State may vote.”

3That Vattel had such influence is proved HERE.

4All men everywhere possess the rights God gave them. But in a civil society, the members possess political or civic rights which are not extended to inhabitants, lawful visitors, or illegal alien invaders.

5 With these four Amendments, the States agreed they would not deny suffrage to Citizens on account of race, being a female, not paying the tax, or being between 18 to 21 years of age. States retain power to deny suffrage to any Citizen on account of other factors (e.g., illiteracy, being on welfare, or stupidity).

6 Freed slaves were naturalized by §1 of the 14th Amendment.

7Vattel §212: “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” [See §§ 215-217 for other places babies may be born as natural-born citizens.]

8Art. I, §8, cl. 4, US Const.

9 The Articles of Confederation were ratified July 9, 1778.

10A “republic” is a state in which the exercise of the sovereign power is lodged in representatives elected by the people.

11The powers not delegated to the United States by the Constitution … are reserved to the States, respectively, or to the people.” (10th Amendment) [italics added]

12 Counsel for the State of Arizona made a strategic error in failing to challenge the constitutionality of the NVRA as outside the scope of powers granted to Congress and as in violation of Art. I, §2, cl. 1 and §4, cl.1, US Const.

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August 16, 2018 Posted by | Arizona's Proposition 200, Article I, Sec. 2, Elections Clause, National Voter Registration Act, Voter eligibility, Voter Qualifications | , , , , , , , , , | 20 Comments

Arizona’s Proposition 200: What The Constitution Really Says About Voter Qualifications & Exposing The “Elections Clause” Argument.

By Publius Huldah.

In the recent opinion (October 26, 2010) of the Ninth Circuit Court of Appeals in Gonzalez v Arizona 200, ¹ Judges Sandra S. Ikuta & Sandra Day O’Connor overturned an initiative (Proposition 200) passed by the People of Arizona which … [prepare yourself] … requires Arizona “residents” who apply to register to vote, to provide … [this is really quite shocking] … documentary proof of citizenship!  Yes, the People of the State of Arizona, which has been overrun with illegal Mexican aliens, want to ensure that only citizens vote.

But Ikuta & O’Connor say The people of Arizona may not do that. Those two judges say that Proposition 200 is void as inconsistent with the National Voter Registration Act of 1993, 42 U.S.C. § 1973gg (NVRA), the “central purpose” of which is “to increase voter registration by streamlining voter registration procedures” (Opinion p. 30). 2 The NVRA doesn’t require applicants for voter registration to provide documentary proof of citizenship. Therefore, say Ikuta & O’Connor, the States may not require it.

Nonsense!  The NVRA is unconstitutional as outside the scope of the legislative powers granted to Congress by the Constitution.  It is also contrary to Art. I, Sec. 2, cl. 1, U.S. Constitution, which shows that prescribing qualifications and registration of voters is a pre-existing power expressly reserved by the States.

Congress is granted by Art. I, Sec. 4, cl. 1, a very limited power over the “holding” of “Elections”:  This is the so-called “elections clause” which the federal government is using to gobble up Art. I, Sec. 2, cl.1.  But the federal government acts unlawfully because the “elections clause” is expressly restricted to “The Times, Places and Manner of holding Elections” – it does not extend to prescribing qualifications & registration of voters.

The U.S. Constitution Enshrines the Pre-existing Practice Where the People of the States Qualify & Register Voters.

1.   Article I, Sec. 2, clause 1, U.S. Constitution, says:

“The House of Representatives shall be composed of members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”

This tells us the States set the qualifications for electors [“voters”]:  Whoever votes in elections for the State House, is eligible to vote for members of the federal House of Representatives.

This is confirmed in Federalist No. 52 (2nd para):

“The first view to be taken of …[the House of Representatives] relates to the qualifications of the electors [voters] and the elected. Those of the former are to be the same with those of the electors of the most numerous branch of the State legislatures. The definition of the right of suffrage is very justly regarded as a fundamental article of republican government. It was incumbent on the convention, therefore, to define and establish this right in the Constitution. To have submitted it to the legislative discretion of the States, would have been improper for the same reason; and for the additional reason that it would have rendered too dependent on the State governments that branch of the federal government which ought to be dependent on the people alone. To have reduced the different qualifications in the different States to one uniform rule, would probably have been as dissatisfactory to some of the States as it would have been difficult to the convention. The provision made by the convention appears … to be the best that lay within their option. It must be satisfactory to every State, because it is conformable to the standard already established, or which may be established, by the State itself. It will be safe to the United States, because, being fixed by the State constitutions, it is not alterable by the State governments, and it cannot be feared that the people of the States will alter this part of their constitutions in such a manner as to abridge the rights secured to them by the federal Constitution. “

Federalist No. 57 (5th para) says:

“Who are to be the electors of the federal representatives? …The electors …  are to be the same who exercise the right in every State of electing the corresponding branch of the legislature of the State. ” 

Before the U.S. Constitution was ratified, the People of the States qualified and registered voters; these qualifications were set forth in their State Constitutions, and they differed from State to State.  This is the practice which was enshrined in Art. I, Sec. 2, cl. 1, U.S. Constitution.

2.  So!  Everyone understood that in the U.S. Constitution, the States – or rather, the People of the States by means of their State Constitutions – retained authority to qualify and register voters.

Accordingly, even though Sec.  1 of the 14th Amendment (ratified 1868) made citizens of the freed slaves, they still couldn’t vote unless their States let them.  Section 2 merely said that if a State denied suffrage to such new citizens, then the State’s population number for purposes of apportioning Representatives would be reduced.

Thus, in 1868, everyone still understood that The  States had reserved the power over qualification and registration of voters.

The Amendments to the U.S. Constitution Addressing Suffrage.

3. Everyone understood that Congress couldn’t simply make a law requiring the States to register former slaves to vote.  Hence, the 15th Amendment (ratified in 1870) says the right of citizens to vote shall not be denied “on account of race, color, or previous condition of servitude”.

4.  Now let us look at the 17th Amendment (ratified 1913) which provides for the popular election of U.S. Senators.  Clause 1 reiterates the Principle in Art. I, Sec. 2, cl.1, that qualifications for electors [voters] are set by the States:

“The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote.  The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.”

See?  In 1913, everyone still understood that The States decide who may vote.

5.  Thereafter, additional Amendments provided that the right of citizens to vote shall not be denied or abridged on account of sex (19th Amendment, ratified 1920), failure to pay any tax (24th Amendment, ratified 1964), or age for citizens who are eighteen years of age or older (26th Amendment, ratified 1971).

The reason for the Amendments was this:  Everyone understood that Congress has no authority to make laws requiring States to register blacks, women, tax avoiders, or children!  The States retain complete control over the qualification and registration of voters except that they agreed they wouldn’t deny suffrage on account of  being in one of those four categories of people.

What the U.S. Constitution, as Amended, Now Says about Qualifications of Voters

6.  So!  Under Art. I, Sec. 2, cl. 1; the 17th Amendment, cl. 1; and the 15th, 19th, 24th, & 26th Amendments, The People of the States may set whatever qualifications they like for registering citizens to vote, as long as they do not deny it to any citizen on account of race (15th Amendment), sex (19th Amendment), failure to pay a tax (24th Amendment), or age for those 18 years or more (26th Amendment).  States are free to deny registration to black citizens, female citizens, tax avoider citizens, and citizens over the age of 18 on other grounds – such as conviction of a felony, or illiteracy in English. States may require, as a condition to registering to vote, that citizens pass a Logic test, outline The Federalist Papers, take an Oath to support the Constitution, and recite the Declaration of Independence by Heart!  States may prohibit welfare recipients – the “Take It From Somebody Else And Give It To Me” block – from voting altogether.   The only way the federal government can lawfully force any one State to register the illiterates, the irrational, the ignorant, the welfare parasites, or invading aliens, is by Constitutional Amendment ratified by three fourths of the States (Art. V).

The Dishonest “Elections Clause” Argument.

7. The federal government is now using Art. I, Sec. 4, cl.1, the “elections clause”, to strip the People of the STATES of their power (reserved by Art. I, Sec. 2, cl. 1 & the 17th Amendment, cl. 1) to qualify & register voters.

The “elections clause” (Art. I, Sec. 4, cl.1) says:

“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 Senators.”

Times?  Places of Chusing Representatives?  Manner of “holding Elections”? What do these have to do with qualifying and registering voters?   In  Federalist No. 60 (next to last para), Hamilton explains that prescribing qualifications of the voters

” ….forms no part of the power to be conferred upon the national government. Its authority 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, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.” [capitals are Hamilton’s]

Fancy that! Article I, Sec. 4, cl. 1, means what it says:  Congress’ authority is restricted to the “times”, “places”, & “manner” of “holding elections”!   And Congress’ authority does not extend to prescribing qualifications of electors:  That is “defined and fixed” in Art. I, Sec. 2, cl. 1, and is “unalterable” by Congress.

Perhaps because Hamilton foresaw a day when we would be plagued with federal judges too ignorant, sloppy, or dishonest to adhere to the plain & obvious meanings of  “time”, “place”, & “manner”, he spelled it out in Federalist No. 61:

“TIME” refers to when elections are held. Hamilton explains that States had been conducting elections from March to November; and that uniformity in the time of elections is necessary “for conveniently assembling the [federal] legislature at a stated period in each year” (4th & 5th paras).

“PLACE”: Hamilton points out that the suffrages of citizens 4 living in certain parts of  the States could be defeated by restricting the place of election for Representatives in the House to “an INCONVENIENT DISTANCE from the elector” (2nd para).

James Madison discusses “MANNER of holding Elections” in The Records of the Federal Convention of 1787, vol. 2, August 9, 1787:

“Mr. Madison: … the Legislatures of the States ought not to have the uncontrouled right of regulating the times places & manner of holding elections. These were words of great latitude. It was impossible to foresee all the abuses that might be made of the discretionary power. Whether the electors should vote by ballot or vivâ voce, should assemble at this place or that place; should be divided into districts or all meet at one place, shd all vote for all the representatives; or all in a district vote for a number allotted to the district; these & many other points would depend on the Legislatures. and might materially affect the appointments …. what danger could there be in giving a controuling power to the Natl. Legislature? Of whom was it to consist? 1. of a Senate to be chosen by the State Legislatures…. 2. of Representatives elected by the same people who elect the State Legislatures…” [emphasis added]

Rufus King in the Massachusetts Convention said: [The Records of the Federal Convention of 1787, vol. 3, January 21, 1788:

“Hon. Mr. King rose to pursue the inquiry, why the place and manner of holding elections were omitted in the section under debate. It was to be observed, he said, that in the Constitution of Massachusetts, and other States, the manner and place of elections were provided for; the manner was by ballot, and the places towns; for, said he, we happened to settle originally in townships…” [emphasis added]

And so WE see that “MANNER of holding Elections” refers to such things as paper ballots or show of hands, the place of voting, and whether the States will be divided into congressional districts for purposes of electing Representatives.

8.  “Holding Elections”is the actual voting part of the process.  It has nothing whatsoever to do with registering voters!  Webster’s American Dictionary (1828), defines “Election”:

“The act of choosing; choice; the act of selecting one or more from others…The act of choosing a person to fill an office or employment, by any manifestation of preference, as by ballot, uplifted hands or viva voce; as the election of a king, of a president, or a mayor.”

So!  Now YOU know exactly what Art. I, Sec. 4, cl. 1 means.  Now, let us see what the Ninth Circuit did to Our Constitution.

The Ninth Circuit’s Opinion in Gonzalez v. Arizona 200

9.  The majority opinion is a tangled web of 62 pages. I address three points: (a) They misrepresented what Alexander Hamilton & James Madison said; (b) They ignored Art. I, Sec. 2, cl. 1; and (c) They rewrote Art. I, Sec. 4, cl. 1.

(a) Five of the Federalist Papers specifically address Art. I, Sec. 2, cl. 1 & Art. I, Sec. 4, cl. 1:  Federalist No. 52, 57, 59, 60, & 61.  This paper honestly sets forth the gist of what these five Papers say.

But Ikuta & O’Connor ignored the passages this paper brings to your attention, and selected only the following two quotes from Federalist No. 59 (and one from No. 33 where they misrepresented what Hamilton said about the “supremacy clause”) 5 On page 15, in support of their false assertion that

“… The Framers decided that Congress should be given the authority to oversee the states’ procedures related to national elections as a safeguard against potential state abuse. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 …”

they quote from Federalist No. 59:

“…[n]othing can be more evident, than that an exclusive power of regulating elections for the national government, in the hands of the State legislatures, would leave the existence of the Union entirely at their mercy…”

On page 16 at footnote 8, they say:

“Alexander Hamilton described the need for congressional oversight of the states as follows: “[The Framers] have submitted the regulation of elections for the federal government, in the first instance, to the local administrations; which, in ordinary cases, and when no improper views prevail, may be both more convenient and more satisfactory; but they have reserved to the national authority a right to interpose, whenever extraordinary circumstances might render that interposition necessary to its safety.” The Federalist No. 59.

That’s it!  No mention of Federalist Nos. 52, 57, 60 & 61 which are quoted above.  Furthermore, Federalist No. 59 is the first of  a sequence of three papers which focus on Art. I, Sec. 4, cl. 1; and in this introductory paper, Hamilton explains why Congress must have the power granted by Sec. 4:  Otherwise, every election might result in the dissolution of the Union, if States prevented an election.  And as YOU have already seen, the meat of Hamilton’s discussion of Sec. 4 is in Nos. 60 & 61.

Ikuta & O’Connor next imply (page 16) that James Madison’s words at the Federal Convention of 1787 support their assertion that

“…the Framers approved language giving Congress power to “make or alter” the states’ regulations. See 5 Elliot’s Debates 401-02 (statement of James Madison)…”

5 Elliot’s Debates 401-02 is a different edition of  The Records of the Federal Convention of 1787, vol. 2, THURSDAY, AUGUST 9, 1787. [here], which is quoted at length above.  And Madison is quite clear that the “Natl. Legislature[‘s]” “controuling power” is only over “the times places & manner of holding elections“, and he illustrates what that phrase means.

So the Ninth Circuit’s representation that Madison said Art. I, Sec. 4, cl. 1 gave to Congress the  broad power to make or alter all of a state’s “regulations” or procedures related to national elections is false.

(b) Not only did Ikuta & O’Connor ignore Art. I, Sec. 2, cl. 1, they perpetuated another falsehood:

As shown above in Federalist No. 52 (2nd para), which discusses Art. I, Sec. 2, cl. 1, the States retained their preexisting power to qualify & register voters.  The Framers expressly declined to reduce “the different qualifications [for voters]  in the different States to one uniform rule”, and they drafted a clause [Art. I, Sec. 2, cl. 1] which “is conformable to the standard already established, or which may be established, by the State itself.”

In spite of this, Ikuta & O’Connor said on page 16:

“…the authority to regulate national elections “aris[es] from the Constitution itself,” and is therefore “not a reserved power of the States.” U.S. Term Limits, 514 U.S. at 805. Because federal elections did not come into being until the federal government was formed, individual states have no inherent or preexisting authority over this domain. See d. at 804-05.”

And on page 19:

“… the states’ sole power over national election procedures is that delegated by the Elections Clause, U.S. Term Limits, 514 U.S. at 805, and states otherwise have no reserved authority over this domain … “

Do you see?  Their claim that the states have “no inherent or preexisting authority” or “reserved authority” over qualifications & registration of voters, is demonstrably FALSE.

Lawyers who don’t think will say the Ninth Circuit has no choice but to follow the supreme Court in U.S. Term Limits, Inc. v. Thornton.  But that is not true.  Our Oath of Office is to support the Constitution – not to obey the supreme Court (Art. VI, cl. 3).  Are we stupid sheep who blindly follow the supreme Court no matter what they say?

Furthermore, supreme Court opinions are not “law” – they are decisions in cases.  The “supreme Law of the Land” is expressly restricted to The Constitution and to those Acts of Congress and treaties which are made pursuant to the Constitution. (Art. VI, cl. 2).

(c) Finally, let us see how Ikuta & O’Connor rewrote Art. I, Sec. 4, cl. 1. As you know, that clause actually says:

“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 Senators.”

Now watch as, by means of a series of false statements, they transform “Times, Places and Manner of holding Elections” into an unlimited grant of power to Congress to do precisely what Hamilton said “forms no part of the power to be conferred upon the national government” (Federalist No. 60, next to last para):

On p.15 of their Opinion, they said:

“… the Elections Clause gives state governments initial responsibility to regulate the mechanics of national elections, “but only so far as Congress declines to preempt state legislative choices.” Foster v. Love, 522 U.S. 67, 69 (1997) …”

Also on page 15:

“… The Framers decided that Congress should be given the authority to oversee the states’ procedures related to national elections See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 808-09 (1995)…”

On page 17:

“… Not only does the Elections Clause grant Congress authority to supersede state election laws…”

On pages 17 & 18:

“…a state’s role in the creation and implementation of federal election procedures under the Elections Clause is to administer the elections through its own procedures until Congress deems otherwise; if and when Congress acts, the states are obligated to conform to and carry out whatever procedures Congress requires. See Foster, 522 U.S. at 69″.

On page 20:

“… Because the Elections Clause empowered Congress to enact the NVRA, Wilson, 60 F.3d at 1414…”

On page 25:

“…Under the Elections Clause, Congress had the power “to provide a complete code for congressional elections, not only as to times and places, but in relation to . . . registration.” Smiley v. Holm, 285 U.S. 355, 366 (1932)…”

On page 34:

“… Given that the Elections Clause gives Congress ultimate authority over the federal voter registration process, Colgrove, 328 U.S. at 554…”

Their words are demonstrably false.  These judges rewrote Art. I, Sec. 4, cl. 1 in order to uphold the NVRA which purports to give Congress total control over voter qualification and registration.

Conclusion

10.  In Federalist No. 60 (1st, 4th, & next to last para), Hamilton discusses the concern that Art. I, Sec. 4, cl. 1, might be used by the federal government “in such a manner as to promote the election of some favorite class of men in exclusion of others” via regulation of the “places”, “time and manner” of elections.  Hamilton says this would never happen because:

“…qualifications…for those who may elect or be elected …forms no part of the power to be conferred upon the national government. Its authority 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, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature [Congress]”

But the federal government has been using Art. I, Sec. 4, cl. 1 to gobble up Art. I, Sec. 2, cl. 1 in order to mandate the extension of suffrage to Mexican and Muslim aliens, in order “to promote the election of some favorite class of men in exclusion of others”.  And who is this “favorite class of men” whom they want elected?  More statists.

Congress has no authority to make laws which “increase voter participation”.  Congress’ authority is expressly restricted to the “Times, Places, and Manner of holding Elections”, and Hamilton & Madison show us exactly what that means.

Hamilton says that if the federal government were to attempt such a thing, it would cause an immediate revolt of the great body of the people, headed and directed by the State governments”(2nd & last paras).  Do we have the courage to stand up and honor our Oaths to support The Constitution?  Are we willing to make the effort?

11. The People of the State of Arizona are well within their pre-existing, reserved, and retained rights, enshrined by Art. I, Sec. 2, cl. 1, to require applicants for voter registration to provide documentary proof of citizenship.  Qualification and registration of voters “forms no part of the power to be conferred upon the national government” (Federalist No. 60, next to last para).

Endnotes:

When I wrote this paper during November/December 2010, I used the pdf edition of the Court’s opinion at the Ninth Circuit’s website.  But that version of opinion was later removed from the Ninth Circuit’s site  – or it was relocated and I can’t find it.  There are differences between the original version of the opinion and the version which has been published here:   https://caselaw.findlaw.com/us-9th-circuit/1542559.html

2 The majority opinion sets forth the gist of the National Voter Registration Act:

“The NVRA is a comprehensive scheme enacting three significant changes to federal election registration procedures nationwide: (1) it creates a standard “Federal Form”…for registering federal voters; (2) it requires states to establish procedures to register voters for federal elections according to three prescribed methods; and (3) it regulates maintenance of voting lists. See 42 U.S.C. § 1973gg et seq. (p. 25)

…the NVRA requires states to make registration opportunities widely available, at the motor vehicle bureau, § 1973gg-3, by mail, § 1973gg-4, and at public assistance, disability service, and other designated state offices, § 1973gg-5 … the NVRA eases the burdens of completing registration forms. At the motor vehicle authority, for instance, voter registration must be included as part of the driver’s license application and the combined form cannot require duplicative information. § 1973gg-3(c)(2)(A). The NVRA also regulates the Federal Form to meet its goal of eliminating obstacles to voter registration. See§ 1973gg(b)(1)-(2). Thus, the NVRA forbids the EAC from including any identifying information beyond that “necessary to enable the appropriate State election official to assess the eligibility of the applicant and to administer voter registration and other parts of the election process.” § 1973gg-7(b)(1)…” (p. 30)

The federal government banned State literacy requirements for voting, claiming that they dis-proportionally disenfranchise black citizens.  But the Constitution doesn’t give the federal government authority to dictate what States must and must not do re voter eligibility & registration – other than that States may not deny or abridge the right of citizens to vote on account of race (15th Amdt.), sex (19th Amdt.), failure to pay the tax (24th Amdt.), or age for citizens of eighteen years or more (26th Amdt.).  If the federal government wants to force any State to allow illiterates to vote, it must get an Amendment ratified by three fourths of the states which says that the right of citizens to vote shall not be denied or abridged on account of  illiteracy. Likewise, if they want to force any State to allow illegal aliens to vote, they must get an Amendment ratified by three fourths of the states which says that illegal aliens may vote.

4 Voting in this Country has always been restricted to CitizensBut not all citizens qualified to vote.

5 On page 18, they misrepresent what Hamilton said about the “supremacy clause” (Art. VI, cl. 2).  Go here to see what Hamilton really said about it.

December 5, 2010;  revised April 1, 2014; July 27, 2018.

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December 5, 2010 Posted by | Arizona's Proposition 200, Elections Clause, Voter eligibility, Voter Qualifications | 23 Comments

   

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