Slatery signs onto GOP AGs’ letter criticizing congressional voting bill

State Attorney General Herbert Slatery, right, speaks with Rep. Jerry Sexton (R-Bean Station) on the House floor in Nashville on Feb. 3, 2020. (Erik Schelzig, Tennessee Journal)

Tennessee Attorney General Herbert Slatery has signed on to a letter urging the defeat of a bill by congressional Democrats they say would “federalize state elections and impose burdensome costs and regulations on state and local officials.”

The letter is written by Indiana AG Todd Rokita and joined by 19 others including Slatery.

Here’s the full text (footnotes omitted):

Dear Madame Speaker, Minority Leader McCarthy, Majority Leader Schumer, and Minority Leader McConnell:

As the chief legal officers of our states, we write regarding H.R.1, the For the People Act of 2021 (the “Act”) and any companion Senate bill. As introduced, the Act betrays several Constitutional deficiencies and alarming mandates that, if passed, would federalize state elections and impose burdensome costs and regulations on state and local officials. Under both the Elections Clause of Article I of the Constitution and the Electors Clause of Article II, States have principal—and with presidential elections, exclusive— responsibility to safeguard the manner of holding elections. The Act would invert that constitutional structure, commandeer state resources, confuse and muddle elections procedures, and erode faith in our elections and systems of governance. Accordingly, Members of Congress may wish to consider the Act’s constitutional vulnerabilities as well as the policy critiques of state officials.

First, the Act regulates “election for Federal office,” defined to include “election for the office of President or Vice President.”1 The Act therefore implicates the Electors Clause, which expressly affords “Each State” the power to “appoint, in such Manner as the Legislature thereof may direct,” the state’s

allotment of presidential electors, and separately affords Congress only the more limited power to “determine the Time of chusing the Electors.” That exclusive division of power for setting the “manner” and “time” of choosing presidential electors differs markedly from the collocated powers of the Article I Elections Clause, which says that both States and Congress have the power to regulate the “time, place, and manner” of congressional elections. That distinction is not an accident of drafting. After extensive debate, the Constitution’s Framers deliberately excluded Congress from deciding how presidential electors would be chosen in order to avoid presidential dependence on Congress for position and authority. Accordingly, the Supreme Court, in upholding a Michigan statute apportioning presidential electors by district, observed that the Electors Clause “convey[s] the broadest power of determination” and “leaves it to the [state] legislature exclusively to define the method” of appointment of electors. McPherson v. Blacker, 146 U.S. 1, 27 (1892) (emphasis added). The exclusivity of state power to “define the method” of choosing presidential electors means that Congress may not force states to permit presidential voting by mail or curbside voting, for example.

Additionally, the Act’s regulation of congressional elections, including by mandating mail-in voting, requiring states to accept late ballots, overriding state voter identification (“ID”) laws, and mandating that states conduct redistricting through unelected commissions, also faces severe constitutional hurdles. As Chief Justice Roberts noted with respect to congressional elections, the Framers “assign[ed] the issue to the state legislatures, expressly checked and balanced by the Federal Congress.” Rucho v. Common Cause 139 S.Ct. 2484, 2496 (2019). Here, Congress is not acting as a check, but is instead overreaching by seizing the role of principal election regulator. And, under the proportionality doctrine announced in City of Boerne v. Flores, 521 U.S. 507, 532 (1997), no other power bestowed by the Constitution permits Congress to confer voting rights disproportionate to what the Constitution itself already protects, which the Act does by, for example, imposing rights to mail-in voting, curbside voting, etc. What is more, where the Act requires state officials to carry out new federal rights it violates the principle that the “Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.” Printz v. United States, 521 U.S. 898, 935 (1997).

Unfortunately, these constitutional deficiencies are only the beginning of the Act’s problems. As a matter of election administration policy, it is difficult to imagine a legislative proposal more threatening to election integrity and voter confidence.

Perhaps most egregious is the Act’s limitations on voter ID laws. Fairly considered, requiring government-issued photo identification at the polls represents nothing more than a best practice for election administration. Government-issued photo identification has been the global standard for documentary identification for decades. Nearly twenty years ago, in the Help America Vote Act, Congress required first-time voters who register by mail without proof of identification to present identification either to the county voter-registration office or at the polls. 42 U.S.C. § 15483(b). It thereby acknowledged the existence of voter fraud and the capacity of documentary identification to prevent it. 148 Cong. Rec. S10489 (Oct. 16, 2002) (statement of Sen. Bond) (“By passage of this legislation, Congress has made a statement that vote fraud exists in this country.”). Then, in 2005, a bipartisan commission headed by former President Jimmy Carter and Secretary of State James Baker recognized the existence of in-person voter fraud and endorsed a photo-identification requirement. In the wake of these endorsements, states began passing voter ID laws, and over a decade ago the Supreme Court upheld Indiana’s voter ID law—one of the most robust in the nation. See Crawford v. Marion County Election Board, 553 U.S. 181 (2008).

Voter ID laws remain popular, with thirty-five states requiring some form of documentary personal identification at the polls. Yet the Act would dismantle meaningful voter ID laws by allowing a statement, as a substitute for prior-issued, document-backed identification, to “attest[] to the individual’s identity and
. . . that the individual is eligible to vote in the election.” This does little to ensure that voters are who they say they are. Worse, it vitiates the capacity of voter ID requirements to protect against improper interference with voting rights. Before the advent of voter ID laws, partisans stationed at polling places could challenge voters based only on suspicions about identity, a process that prompted concerns about voter intimidation. Robust voter ID laws, however, require all voters to present photo identification, i.e., objective, on-the-spot confirmation of the right to vote that immediately refutes bad-faith challenges based on vaguely articulated suspicions. Fair election laws treat all voters equally. By that standard, the Act is not a fair election law.

Adding to the threat of increased voter fraud, the Act would mandate nationwide automatic voter registration and Election Day voter registration. Such systems would provide too many opportunities for non-citizens and others ineligible to vote to register and cast fraudulent ballots before officials can take preventive action. States should determine appropriate methods for voter registration based on their own experiences with voting access and voter fraud.

Exacerbating these problems, the Act would also limit how states maintain voter registration rolls as a means of ensuring election integrity. Unsurprisingly, most citizens are not vigilant about keeping their state and local election boards apprised of changes to residency that may affect the validity of their voter registrations. Consequently, as citizens move about the country, their voter registrations become moribund and transform into seedbeds for voter fraud. As a fraud-prevention measure, states and localities routinely remove the registrations of citizens who (1) have not voted in many consecutive elections, and then (2) fail to respond to multiple efforts to verify current residency. Under the Act, however, States could not use a combination of voter inactivity and unresponsiveness to maintain voter lists but may instead remove illegitimate voter registrations only where officials obtain some other unspecified “objective and reliable evidence that the registrant is ineligible to vote.” Sec. 2502. This attack on reliable methods that states have been using to maintain voters lists without specifying any reasonable permissible alternatives belies any actual interest in preventing voter fraud. The objective, rather, seems to be to prevent meaningful voter list maintenance altogether.

Next, the Act’s mandate that states undertake congressional redistricting by way of so-called “independent” commissions is profoundly misguided. The aim of this provision—to neutralize “political” gerrymandering—proceeds from the incoherent supposition that drawing congressional districts is something other than a political act. As with any legislation, drawing boundary lines for congressional districts requires officials to balance legitimate competing considerations, and in so doing advance some political interests over others. Independent commissions do not somehow negate the need for interest balancing and tradeoffs—they merely avoid accountability for the enterprise. At least when legislatures draw boundary lines voters may punish egregious behavior at the next election; not so with government-by-commission, which trades accountability for mythical expertise and disinterest. The republican form of government inherently rejects the idea that elites have some unique capacity to discern and implement the best policies. The American tradition instead embraces political accountability as the best way to advance the public interest. With respect to political redistricting, no ideal, perfectly balanced congressional boundaries exist, so we should let the people decide, through their elected officials, where to place them.

Even more dismissive of robust political participation is the Act’s requirement that political speakers disclose their donor lists. All speech, whether attributed to an individual or not, facilitates robust political discourse by encouraging speech from a diverse array of viewpoints. The Act reflects an objective to name, shame, and blacklist those with differing or minority viewpoints. In other words, the goal is to censor those with whom the authors of the bill disagree. In the American tradition, the antidote for bad speech is more speech, not less. When people and organizations carry their chosen messages into the public arena, government should not cater to those who would intimidate or disrupt that same speech.

Despite recent calls for political unity, the Act takes a one-sided approach to governing and usurps states’ authority over elections. With confidence in elections at a record low, the country’s focus should be on building trust in the electoral process.6 Around the nation, the 2020 general elections generated mass confusion and distrust—problems that the Act would only exacerbate. Should the Act become law, we will seek legal remedies to protect the Constitution, the sovereignty of all states, our elections, and the rights of our citizens.

20 Responses to Slatery signs onto GOP AGs’ letter criticizing congressional voting bill

  • Avatar
    James White says:

    The state should just ignore any unconstitutional law like HR 1.
    Article VI … This Constitution, and the Laws of the United States which shall be made in Pursuance thereof….
    HR 1 is not made in pursuance of the constitution as HR 1 is not allowed by Congress according to Article I section 8, which tell congress what it ONLY can do.

    • Avatar
      Perry Aubric says:

      Fortunately, you have no qualifications whatsoever to make a judgment about constitutionality, and you have demonstrated repeatedly that you confuse something being unconstitutional with something James just doesn’t like. Rather than take your word for it, we can wait on the Congress to pass a law, the President to sign it, and the Supreme Court to decide about any challenges. None of them need James’ approval.

  • Avatar
    Cryan says:

    Why is this dragging on so much, Slatery? We know you’re going to primary Bill Lee. Are you waiting for the indictments before you announce?

    It’s getting old.

  • Avatar
    Karen Bracken says:

    The state has power over the federal government and any law that violates the constitution which HR1/S1 and HR 5 does do…is NULL and VOID. Wake up. Stop begging these communist dictators and use the 10th Amendment. You forget the federal government is at the bottom of the pyramid not the top. It is WE THE PEOPLE, the state, then the federal government and our Constitution avails them VERY limited authority which they have abused for years and the state has allowed it. Time for the people to say NO MORE.

    • Avatar
      Cryan says:

      Yesterday was March 4. Is Trump president now?

      I don’t want to hear anything about “derangement syndrome” until you fix your own Q-ANON house, Stuart I. Anderson.

    • Avatar
      MARLE says:

      You can’t keep asserting the 10 th Amendment when states constantly have their hands out for FEMA money, FBI help when a Nashville street is car bombed, Covid relief money for shuttered business (shuttered by the Nashville MAYOR, not the Feds). Make up your collective minds. Do you want to go it alone or not?

      • Avatar
        Cryan says:

        Stop. You’re making her head hurt. Just let her go back to the sweet embrace of Tucker Carlson.

      • Avatar
        Stuart I. Anderson says:

        MARLE, I’m all for “. . .go[ing] it alone. . . .” I cringe every time the state goes hat in hand asking for federal government for help. Of course, the fundamental problem lies in the fact that the spoiled American people refuse to pay for the government they have grown to expect. Tennessee is required to have a balanced budget, the federal government isn’t so it’s a stupid game that involves the state asking the federal government to pay for programs the cost of which should be borne by the state and the federal government either borrows the money or the fed simply fires up the printing presses.

        Of course, this will not end well. Again, those of you with children, nieces and nephews please wish them “good luck” for me.

  • Avatar
    Eddie White says:

    Well, it never hurts to ask. But, elections matter and the Democrats rule Washington. The letter will fall on deaf ears.

  • Avatar
    LeeAnn C says:

    Good. The letter is a promise of a lawsuit, so hopefully the Senate will stop this insanity.

    • Avatar
      Perry Aubric says:

      Another frivolous lawsuit by Tennessee’s Attorney General, another failure on his part, another needless expense for the taxpayers of this state.

    • Avatar
      Stuart I. Anderson says:

      The Senate is full of centrist/tepid conservative Republicans, a number of whom I’m happy to see retiring in 2022, but this HR1 leftist wish list will surely be too much for even them. Of course, the leftists don’t really need this bill all that much, with Republicans failure to wean themselves away from the Chamber long enough to close the borders sufficiently when they had the power to do so, and the demented Big Guy now opening the borders even more, eventually what is left of this Tower of Babel will be governed by the Democrats anyway. Hopefully conservatives can continue to tap the break every now and them so I won’t be around to see the results of yet another farseeing Democratic program that the Republicans, and indeed the American people, no longer have the intestinal fortitude to stop.

  • Avatar
    Cannoneer2 says:

    We are paying him 200K+ to play “Follow the Leader”? He should BE the leader. Write your OWN letter, Slatery!

  • Avatar
    Taxpayer #314 says:

    If the republicans would only stop trying to tamper with “Free and Fair Elections” in our country, we all could get on with a clear voting system that is consistent across the states and allows everyone who is registered and wants to vote to do so in a timely manner. All these 250 plus voter suppression attempts across the country in almost every state are just using those old republican dirty tricks to rig the voting. Republicans can NOT win a fair election, that is why they currently represent many millions less voters in the country and still have an equal amount of Senators. Dirty tricks by the Party of “NO!”

    • Avatar
      James White says:

      Park the Motor Voter Act
      Abolish HAVA & Go Back To Paper
      Increase Voting Transparency
      Push For In-Person Voting On Election Day With Voter IDs
      Repeal Laws Allowing For No-Excuse Absentee Balloting
      Reinstate Precincts
      Clean Up Voter Registration Lists
      Protect Evidence & Punish Fraud
      Require An Absolute Chain Of Custody For Ballots
      Repeal Laws That Allow For Unattended Drop Boxes For Ballots.
      Ballots Should Have Verifying Features
      Make It Easier To Recruit Election Clerks
      Don’t Allow Government Employees Or Political Hacks To Run The Polls
      Require Paper Voter Sign-In Sheets

      • Avatar
        Cryan says:

        Most of this is already in place. I vote in a precinct. I do a paper ballot. Voter registration lists are purged all the time. Etc.

      • Avatar
        Beatrice Shaw says:

        No ID for votes No fingerprints for votes. You don’t have to own property to vote. If you have been in this country legal or not for a year you should vote. Grow up, Tennessee!!

  • Avatar
    Taxpayer #314 says:

    When you go into a McDonalds for a burger and a drink the next time, take a look at the receipt they give you for your order and look at the information clearly printed on it. It gives you the date and time of your order, the name of the cashier who took your order, how long your order took to fulfill, the amount of money you payed, the change you received, the company number of the store, the address and phone number and the managers name. There is a receipt tracking number on the bottom if you come back later with a question or complaint. There is also a phone number printed there for you to call if you have any questions or concerns about the food, the establishment or the service.
    And you tell me that we can’t go to the polls across this country and get a receipt for our vote and feel comfortable that our vote actually counted and was counted and recorded correctly!! Our current various and numerous types of voting systems are ridiculous – it is ONLY by design that this happens. Every burger joint in the country would go out of business if they ran things like our state voting systems are being run.

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