[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]


                     THE ELECTIONS CLAUSE: CONSTITUTIONAL 
                 INTERPRETATION AND CONGRESSIONAL EXERCISE

=======================================================================

                                HEARING

                               BEFORE THE

                           COMMITTEE ON HOUSE
                             ADMINISTRATION
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             JULY 12, 2021

                               __________

      Printed for the use of the Committee on House Administration
      

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                       Available on the Internet:
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                    U.S. GOVERNMENT PUBLISHING OFFICE                    
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                  Committee on House Administration

                  ZOE LOFGREN, California, Chairperson
JAMIE RASKIN, Maryland               RODNEY DAVIS, Illinois, Ranking 
G. K. BUTTERFIELD, North Carolina        Member
PETE AGUILAR, California             BARRY LOUDERMILK, Georgia
MARY GAY SCANLON, Pennsylvania       BRYAN STEIL, Wisconsin
TERESA LEGER FERNANDEZ, New Mexico
                                
                                CONTENTS

                              ----------                              

                             JULY 12, 2021

                                                                   Page
The Elections Clause: Constitutional Interpretation and 
  Congressional Exercise.........................................     1

                           OPENING STATEMENTS

Chairperson Zoe Lofgren..........................................     1
    Prepared statement of Chairperson Lofgren....................     5
Hon. Bryan Steil.................................................     8
    Prepared statement of Mr. Steil..............................    11

                               WITNESSES

Jack Rakove, Coe Professor of History and American Studies, 
  American University............................................    14
    Prepared statement of Prof. Rakove...........................    17
Hon. Michael G. Adams, Secretary of State, Commonwealth of 
  Kentucky.......................................................    66
    Prepared statement of Hon. Adams.............................    68
Daniel P. Tokaji, Fred W. and VI Miller Dean and Professor of 
  Law, University of Wisconsin School of Law.....................    59
    Prepared statement of Prof. Tokaji...........................    61
Franita Tolson, Professor of Law and Vice Dean for Faculty and 
  Academic Affairs, University of California Gould School of Law.    34
    Prepared statement of Prof. Tolson...........................    36

                        QUESTIONS FOR THE RECORD

Jack Rakove, Coe Professor of History and American Studies, 
  American University, responses.................................    85
Daniel P. Tokaji, Fred W. and VI Miller Dean and Professor of 
  Law, University of Wisconsin School of Law, responses..........    92
Franita Tolson, Professor of Law and Vice Dean for Faculty and 
  Academic Affairs, University of California Gould School of Law, 
  responses......................................................    97

                       SUBMISSIONS FOR THE RECORD

Avalon Project, Yale Law School, Federalist Paper No. 59 
  submission.....................................................   107
Avalon Project, Yale Law School, Federalist Paper No. 60, 
  submission.....................................................   109
Avalon Project, Yale Law School, Federalist Paper No. 61, 
  submission.....................................................   111
H.R. 6882, Constitutional Authority Statement, submission........   113
H.R. 3412, Constitutional Authority Statement, submission........   114
H.R. 7905, Constitutional Authority Statement, submission........   115
June 15, 2021, Prof. Jack Rakove, The Washington Post, The 
  framers would have been fine with sweeping national election 
  reforms, submission............................................   116
November 18, 2019, Prof. Franita Tolson, Yale Law Journal Forum, 
  The Elections Clause and the Underenforcement of Federal Law, 
  submission.....................................................   122
Brennan Center for Justice, Legal Analysis of Congress' 
  Constitutional Authority to Restore Voting Rights to People 
  with Criminal Histories, submission............................   136
Nicholas O. Stephanopoulos, The Sweep of the Electoral Power, 
  submission.....................................................   141
Suman Malempati, Emory Law Journal, The Elections Clause 
  Obligates Congress to Enact a Federal Plan to Secure U.S. 
  Elections Against Foreign Cyberattacks, submission.............   204
Eliza Sweren-Becker and Michael Waldman, The Meaning, History, 
  And Importance of the Elections Clause, submission.............   252
Franita Tolson, Articles: The Spectrum of Congressional Authority 
  over Elections, submission.....................................   322
Franita Tolson, Election Law ``Federalism'' And the Limits of the 
  Antidiscrimination Framework, submission.......................   399
Franita Tolson, Reinventing Sovereignty? : Federalism as a 
  Constraint on the Voting Rights Act, submission................   473
Franita Tolson, In Whom is the Right of Suffrage? : The 
  Reconstruction Acts as Sources of Constitutional Meaning, 
  submission.....................................................   538
Guy-Uriel E. Charles, Charles J. Olgetree Jr. Professor of Law, 
  Harvard Law School, submission.................................   552
Honorable Rodney Davis, Ranking Member, The Elections Clause, 
  submission.....................................................   562
November 5, 2020, Letter from Ranking Member Rodney Davis to 
  Arizona Secretary of State Katie Hobbs, submission.............   571
House Admin. Committee GOP Twitter Web App, submission...........   572

 
 THE ELECTIONS CLAUSE: CONSTITUTIONAL INTERPRETATION AND CONGRESSIONAL 
                                EXERCISE

                              ----------                              


                         MONDAY, JULY 12, 2021

                          House of Representatives,
                         Committee on House Administration,
                                                    Washington, DC.
    The Committee met, pursuant to call, at 1:02 p.m., via 
Webex, Hon. Zoe Lofgren [Chairperson of the Committee] 
presiding.
    Present: Representatives Lofgren, Raskin, Butterfield, 
Aguilar, Scanlon, Leger Fernandez, Davis, Loudermilk, and 
Steil.
    Staff Present: Jamie Fleet, Majority Staff Director; Khalil 
Abboud, Deputy Democratic Staff Director; Brandon Jacobs, 
Legislative Clerk; Dan Taylor, Senior Counsel; Sean Wright, 
Senior Elections Counsel; Sarah Nasta, Elections Counsel; David 
Tucker, Parliamentarian; Natalie Young, Press Secretary; Kulani 
Julata, Elections Counsel; Peter Whippy, Communications 
Director; Caleb Hays, Republican General Counsel and Deputy 
Staff Director; Gineen Bresso, Republican Special Counsel; 
Rachel Collins, Republican Counsel; and Mike Cunnington, 
Republican Policy Advisor.
    The Chairperson. The Committee on House Administration will 
come to order.
    We have several Members present, and we will be joined by 
several others as this hearing proceeds.
    As we begin, I want to note we are holding this hearing in 
compliance with the regulations for remote committee 
proceedings pursuant to House Resolution 8.
    We ask Committee Members and witnesses to keep their 
microphones muted when they are not speaking to limit 
background noise, and members will need to unmute themselves 
when seeking recognition or when recognized for their five 
minutes. Witnesses will also need to unmute themselves when 
recognized for their five minutes or when answering a question.
    Members and witnesses, please keep your cameras on at all 
times, even if you need to step away for a moment. Please don't 
leave the meeting or turn your camera off.
    I would also like to remind Members that the regulations 
governing remote proceedings require that we cannot participate 
in more than one committee proceeding at the same time.
    At this time, the chair is authorized to declare a recess 
of the Committee at any point, and all Members will have five 
legislative days in which to revise and extend their remarks 
and have any written statements be made part of the record.
    And without objection, that is ordered.
    Our hearing today will examine the broad constitutional 
authority provided to Congress to regulate Federal elections 
under Article I, Section 4, Clause 1 of the U.S. Constitution, 
known as the Elections Clause.
    The clause reads as follows, quote: ``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 choosing Senators.''
    The text is clear. It prescribes a duty to States to make 
regulations for the time, place, and manner of congressional 
elections--but, critically, also provides Congress with the 
superseding power to make or alter such regulations at any 
time.
    During the Constitutional Convention and State ratification 
debates, the Framers fought for the inclusion of the Election 
Clause and the broad powers that it confers to Congress. For 
its supporters, the clause was necessary for self-preservation 
of the Federal Government in the face of potential State 
obstructions to congressional elections.
    In defense of the Elections Clause, Alexander Hamilton 
wrote in Federalist 59 that, quote: ``Its propriety rests upon 
the evidence of this plain proposition, that every government 
ought to contain in itself the means of its own preservation.''
    The Framers raised other concerns as well to defend the 
inclusion of the Elections Clause in the Constitution and the 
Federal oversight over congressional elections that it would 
authorize. They warned about the potential for State lawmakers 
to abuse their powers and pass election regulations that would 
lead to unequal representation, such as partisan 
gerrymandering. They also warned about other forms of voter 
suppression in Federal elections that would go unchecked unless 
Congress was empowered with the remedy of the Elections Clause 
to act.
    The Framers' warning rings true today. Since the Supreme 
Court's 2013 Shelby County v. Holder decision, State 
legislatures around the country have passed a wave of voter 
suppression efforts, including strict voter ID laws, improper 
voter purges, and increasingly limited opportunities to access 
the ballot.
    And this pattern has only further escalated since the 2020 
general election. Partisan gerrymandering by incumbent 
political parties--both parties--remains an ongoing obstacle to 
equal voting rights across various States.
    In our hearing today, we will hear more about what the 
Framers intended when they drafted and included the Elections 
Clause in our Constitution.
    Likewise, the Supreme Court has been consistent in 
construing the Elections Clause as providing, quote, 
``paramount,'' unquote, powers to Congress to enact Federal 
election regulations that preempt State regulations and has 
interpreted such powers be broad and expansive.
    For example, in Smiley v. Holm, in 1932, the Supreme Court 
said, ``These comprehensive words embrace authority to provide 
a complete code in congressional elections,'' which was not 
limited to just times and places, but to the ``numerous 
requirements as to procedure and safeguards which experience 
shows are necessary in order to enforce the fundamental right 
involved.''
    In another case, Arizona v. Inter Tribal Council of 
Arizona, in 2013, Justice Scalia, a renowned conservative 
Justice, wrote for the court that the National Voter 
Registration Act requirement that voters affirm their 
citizenship preempted Arizona's proof of citizenship 
requirement, relying on Smiley v. Holm and the understanding 
that the Elections Clause empowers Congress to preempt State 
regulations governing the times, places, and manner of holding 
congressional elections and that times, places, and manner are 
comprehensive words.
    The NVRA is only one example of Congress exercising its 
Elections Clause powers. Congress has long exercised its 
Elections Clause powers to enact legislation covering various 
types of Federal election regulations, from the Apportionment 
Act of 1842, which eliminated the general ticket system in 
favor of the congressional district, to modern examples, 
including the Federal Election Campaign Act of 1971 and the 
Uniformed and Overseas Citizens Absentee Voting Act of 1986, as 
well as the Help America Vote Act in 2002.
    Reliance on the Elections Clause as a source of 
congressional authority has long been supported on a bipartisan 
basis. Since the House began requiring bill sponsors to 
identify the constitutional authority for their proposed 
legislation in recent years, Members have cited the Elections 
Clause as the authority for their legislation more than 230 
times. That includes scores of measures introduced by 
Republican Members, many of which would have required States to 
take certain steps in how they conduct their elections or 
prohibited certain activities.
    In the last Congress, my colleague, Ranking Member Davis, 
introduced legislation to deny Federal election grants to 
States that permit third-party individuals or groups to return 
voters' completed ballots to election officials. In doing so, 
he cited, as the sole constitutional authority to his 
legislation, the Elections Clause of the Constitution.
    But this authority can be used to empower States and 
citizens to make voting easier, safer, and more secure while 
ensuring that suppressive tactics and plans may not be used to 
limit or deny access to the ballot box.
    For example, Congress has endeavored to enact new democracy 
reforms, including H.R. 1, the For the People Act, under its 
Elections Clause powers, as well as other constitutional 
provisions. H.R. 1 would help remedy ongoing voter suppression 
efforts across States, just as the Framers intended.
    Far from the Federal takeover of elections, as claimed by 
some critics, H.R. 1 typifies an appropriate exercise of 
congressional authority.
    This hearing provides a rare opportunity to explore the 
contours of the Elections Clause and the sweeping 
constitutional powers it provides Congress to enact 
transformational democracy legislation, like H.R. 1.
    I look forward to hearing from our witnesses today.
    I understand Mr. Davis is on assignment today, may be 
joining us later, but I believe Mr. Steil will be offering his 
opening statement.
    So, Mr. Steil, you are now recognized for five minutes.
    [The statement of The Chairperson follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Steil. Thank you very much, Madam Chairperson.
    Today's hearing is titled ``The Elections Clause: 
Constitutional Interpretation and Congressional Exercise.'' 
This is really a hearing that our Committee should have had 
before we had hearings on elections administration, before the 
drafting and introduction and passage of H.R. 1, and before the 
drafting and introduction of H.R. 4 last Congress.
    Article I, Section 4 of the Constitution clearly gives 
States the primary role in establishing--and I quote--``The 
Times, Places, and Manner of holding Elections for Senators and 
Representatives.'' Under the Constitution, Congress has a 
purely secondary role in this space.
    This is evident from the way it is written--the States are 
listed first, and Congress is listed second. Under H.R. 1 and 
H.R. 4, Congress is clearly outside these constitutional 
bounds.
    These bills prevent any State from establishing the time, 
place, and manner in which elections are held by establishing a 
nationalized election system run by bureaucrats in Washington, 
D.C.
    And while we are on the subject of H.R. 4, the Supreme 
Court ruled this month that States have the power to protect 
the integrity of their elections through thoughtful, considered 
legislation, making it easy to vote and hard to cheat.
    In the case against Arizona, the Court upheld the State's 
power to ban the use of third-party ballot harvesting. Justice 
Alito's opinion stated, quote, ``One strong and entirely 
legitimate State interest is the prevention of fraud. Fraud can 
affect the outcome in a close election, and fraudulent votes 
dilute the rights of citizens to cast ballots that carry 
appropriate weight. Fraud can also undermine public confidence 
in the fairness of elections and the perceived legitimacy of 
the announced outcome,'' end quote.
    Public confidence in our elections is something I, as 
Ranking Member on the Subcommittee on Elections, am focused on. 
Ranking Member of the Committee Rodney Davis is leading the way 
with his Faith in Elections Project.
    We have seen this issue in North Carolina. The results of a 
congressional race were tossed because of fraud resulting from 
ballot harvesting. California has had issues as well. We have 
seen it in Madison, Wisconsin.
    Despite the well-documented fraud cases with ballot 
harvesting, H.R. 1 legalizes this practice nationwide. And 
according to Democrats, prohibition of ballot harvesting by a 
State is by definition discrimination.
    Fortunately, the Supreme Court ruled this is not the case. 
Instead, the Court ruled that intent and the totality of a 
State's voting system matters.
    Justice Alito noted that merely implementing voting 
structures intended to bolster voter confidence, such as rules 
to increase ballot integrity, does not equal discrimination, 
which is what my Democratic colleagues continue to claim.
    Not only does the recent Supreme Court ruling invalidate my 
Democratic colleagues' claim, but this Committee's record has 
demonstrated this as well.
    During multiple hearings, my Democratic colleagues have 
claimed that voter ID is used to suppress votes. However, the 
data clearly disputes this. Contrary to the Democrats' claim 
that voter ID requirements lower voter turnout, States with 
voter ID laws saw record turnout in the 2020 election.
    I thought I would take this opportunity during a remote 
hearing to take everyone on the Committee to rural America.
    While I haven't found a Kinko's, the Vice President of the 
United States may be very interested to learn that I can 
confirm folks in rural Wisconsin and rural communities across 
the United States have running water, have electricity.
    I found this new invention that I don't think was there 
when then-Vice President Biden first ran for Senate, but is 
available now here in rural America, and it is called a camera 
phone. It is amazing. And it is a camera and a phone, and it 
can take a photo of an ID and can be submitted electronically. 
Shocking, I know.
    Now, it may not have come to San Francisco, so Vice 
President Kamala Harris may not be as familiar, but I would 
encourage everyone to check out these new camera phones that 
can be used to provide enhanced integrity in our elections for 
people voting by mail remotely in rural America.
    Additionally, the data used by Democratic witnesses is 
flawed.
    During a hearing earlier this year, Democratic witness Dr. 
Nazita Lajevardi stated that minority participation in the 2016 
election was less than the 2012 election and claimed this was 
due to voter suppression.
    However, she admitted that her analysis relied on self-
reported voter information from online surveys to reach her 
conclusion, not a scientific poll, and essentially reverse 
engineered her desired result.
    And further, during that Committee hearing I pointed out 
that her study did not control for the difference in candidacy 
between Barack Obama and the historically terrible candidacy of 
Hillary Clinton.
    While my Democratic colleagues invited many college 
professors to participate in these hearings on H.R. 1 or voter 
suppression, they invited no election officials who had 
administered elections.
    Republicans, on the other hand, have invited multiple 
election administrators, including our witness today, the 
Kentucky Secretary of State, Michael Adams--and I am 
appreciative of you joining us here--and together these 
individuals have decades of experience in election 
administration, and each one of them have or will testify about 
how bad H.R. 1 is for States.
    They have repeatedly stressed that mandates throughout H.R. 
1 will not work in their jurisdictions, they would be 
incredibly costly to implement, and they could even make 
elections less secure.
    In contrast, the only two election officials the majority 
invited had never administered elections prior to testifying.
    It is my hope that after a thorough review of the 
Committee's record and the recent Supreme Court decisions, 
Democrats will abandon their efforts to circumvent the 
Constitution and nationalize our elections.
    It is clear our election system works best when those 
closest to the people are setting the rules for administering 
the elections, not unelected bureaucrats in Washington--just as 
our Founding Fathers wrote in Article I, Section 4 of the 
Constitution.
    Madam Chairperson, I yield back. Thank you.
    [The statement of Mr. Steil follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    The Chairperson. The gentleman yields back.
    And all other Members are invited to submit opening 
statements for the record.
    We have a very distinguished panel to hear from today, and 
I would like to welcome each of them and thank them for 
participating.
    First, we have Professor Jack Rakove, who is the William 
Robertson Coe Professor of history and American studies and 
Professor of political science and law at Stanford University, 
where he has taught since 1980.
    He is a constitutional historian whose principal areas of 
research include the origins of the American Revolution and the 
Constitution, the political practice and theory of James 
Madison, and the role of historical knowledge in constitutional 
litigation.
    He is the author of six books, including ``Original 
Meanings: Politics and Ideas in the Making of the 
Constitution,'' which won the Pulitzer Prize in history.
    He is a member of the American Academy of Arts and 
Sciences, the American Philosophical Society, and a past 
president of the Society for the History of the Early American 
Republic.
    He obtained his Ph.D. in history from Harvard University 
and his bachelor's in history from Haverford College.
    Next we have Vice Dean Franita Tolson, who is Vice Dean for 
faculty at the USC Gould School of Law and is a nationally 
recognized expert in election law.
    Her scholarship and teaching focus on the areas of election 
law, constitutional law, legal history and employment 
litigation, political parties, the Elections Clause, the Voting 
Rights Act of 1965, and the 14th and 15th Amendments.
    Dean Tolson received her J.D. from the University of 
Chicago Law School and clerked for the Honorable Ann Claire 
Williams of the United States Court of Appeals for the Seventh 
Circuit and the Honorable Ruben Castillo of the United States 
District Court for the Northern District of Illinois.
    In 2019, her journal article titled ``The Elections Clause 
and the Underenforcement of Federal Law'' appeared in the Yale 
Law Journal forum, and which examined the broad powers 
conferred under the Elections Clause and the underutilization 
of such powers by Congress and the constitutionality of H.R. 1.
    This year, Dean Tolson's forthcoming book, ``In Congress We 
Trust?: Enforcing Voting Rights from the Founding to the Jim 
Crow Era,'' will be published by the Cambridge University 
Press.
    Dean Daniel Tokaji is the Dean of the University of 
Wisconsin Law School and is a leading authority in the field of 
election law. His scholarship addresses questions of voting 
rights, free speech, and democratic inclusion.
    He has published over fifty law review articles, book 
chapters, and papers on a broad scope of topics. Dean Tokaji is 
the author of ``Election Law in a Nutshell,'' second edition, 
and coauthor of ``Election Law: Cases and Materials,'' as well 
as ``The New Soft Money.''
    Previously, the Dean served as Associate Dean for faculty 
and was a professor of constitutional law at Ohio State's 
Moritz College of Law, and the dean received his J.D. from Yale 
Law School and clerked for the Honorable Stephen Reinhardt of 
the Ninth Circuit Court of Appeals.
    He is a former civil rights attorney and has worked on 
various free speech, racial justice, and voting rights cases.
    Last, but certainly not least, is Secretary of State 
Michael Adams. Secretary Adams is Kentucky's 86th Secretary of 
State, sworn into his term on January 6, 2020.
    Secretary Adams established a private practice in election 
law in 2007. He served as General Counsel to the Republican 
Governors Association and later expanded his practice, 
representing national political committees, national political 
figures, and statewide campaign efforts.
    In 2016, he was appointed to the Kentucky Board of 
Elections. Previously, he worked on Senator Mitch McConnell's 
2002 reelection, was Deputy General Counsel for Governor Ernie 
Fletcher, and was appointed counsel to the U.S. Deputy Attorney 
General in the Bush administration.
    Secretary Adams received his J.D. from Harvard Law School 
and clerked for Chief U.S. District Judge John Heyburn.
    Welcome to all of you.
    We will hear your verbal testimony for about five minutes. 
There is a clock on the screen which will help you keep track 
of the time. When your time is up, we do ask that you please 
summarize. Your entire statements will be made part of the 
written record.
    So let me turn first to Professor Rakove.
    It is great to see you, and we would certainly welcome your 
testimony.

    STATEMENTS OF JACK RAKOVE, COE PROFESSOR OF HISTORY AND 
AMERICAN STUDIES, AMERICAN UNIVERSITY; THE HONORABLE MICHAEL G. 
ADAMS, SECRETARY OF STATE, COMMONWEALTH OF KENTUCKY; DANIEL P. 
   TOKAJI, FRED W. AND VI MILLER DEAN AND PROFESSOR OF LAW, 
 UNIVERSITY OF WISCONSIN LAW SCHOOL; FRANITA TOLSON, PROFESSOR 
    OF LAW AND VICE DEAN FOR FACULTY AND ACADEMIC AFFAIRS, 
          UNIVERSITY OF CALIFORNIA GOULD SCHOOL OF LAW

                    STATEMENT OF JACK RAKOVE

    Mr. Rakove. Thank you very much.
    First off, I would like to thank Chairperson Lofgren, 
Ranking Member Davis, and the other Members of this Committee 
for this opportunity to discuss the origins of the Times, 
Places and Manner Clause.
    It is also a special pleasure for me to appear before my 
former student, Congresswoman Scanlon, whose law school 
recommendation I wrote more years ago than she and I would like 
to remember.
    The principal concern of my written statement lies with the 
original intentions of the Framers of the Constitution in 
drafting the Times, Places and Manner Clause. There are four 
main conclusions that I wish to present.
    First, a reconstruction of the drafting of this clause 
indicates that we should indeed read it expansively. Not only 
does it give Congress broad authority to correct identifiable 
defects in the conduct of congressional elections within the 
States, it also empowers Congress to use its legislative power 
creatively, to draw upon lessons of experience to design an 
optimal manner of conducting Federal elections.
    In its original form, the clause first appeared at the 
midpoint of the Federal Convention where the Committee of 
Detail proposed it as a response to the problem of asking: What 
should happen should one or more States default on their 
obligation to provide for the election of Members of Congress?
    That could occur, for example, if the two houses of a State 
legislature simply failed to agree on an election law. But it 
could also occur when a State willfully tried to sabotage the 
national government.
    Knowing the prior history of the Articles of Confederation, 
when the States had often fallen short of fulfilling their 
Federal duties, the Framers of the Constitution had legitimate 
reasons to worry about allowing Federal elections to become 
wholly dependent on the voluntary compliance of the State 
legislatures.
    Second, this reading gains additional authority when we 
examine the most detailed speech on the clause, which James 
Madison gave on August 9, 1787, the one day the clause was 
actively debated.
    That debate occurred when two South Carolina delegates 
argued that there was no need for any congressional review or 
alteration of State regulation of Federal elections.
    Madison gave the principal refutation of this motion. 
Precisely because times, places, and manners were, Madison 
said, words of great latitude, he argued they would be subject 
to, quote, ``all the abuses that might be made of this 
discretionary power.''
    State legislatures, which had their own favorite measure to 
carry, could well mold the regulations to favor the candidates 
they wished to succeed. And if there were inequalities in the 
allocation of seats within the State legislatures, these may 
also be replicated in the design of congressional districts.
    All these potential sources of abuse, therefore, justified 
congressional oversight and revision. The other Framers 
evidently agreed, because the South Carolina motion was 
rejected without even a roll call.
    But in the third place, Madison's speech also identified 
the real problems that the Framers faced in designing a system 
of national political representation.
    Here is Madison's list of problems: whether the electors 
should vote by ballot or viva voce; should assemble at this 
place or that place; should be divided into districts or all 
meet at one place; should all vote for all the Representatives 
or all in a district vote for a number allotted to the 
district; these and many other points would depend on the 
legislatures and might materially affect the appointments.
    I believe it is important for members of this Committee to 
know that there was no precedent in Anglo-American history for 
the kind of representative system the Framers were designing. 
The American Colonies' and States' representative seats were 
routinely assigned to townships and counties when they were 
legally organized.
    That principle of community representation would never work 
in the extensive and expanding American Republic. Congressional 
districts, as the Framers conceived them, would be wholly 
arbitrary political entities. The State legislatures would have 
to be created de novo and would likely alter with every 
decennial census.
    As Madison makes clear, the manner of holding elections 
embraced everything from the actual method of voting to 
deciding exactly what kind of constituency was to be 
represented.
    Given the novelties of that concept, the clause effectively 
empowers Congress to examine how the system of political 
representation is working or not working in the clause's own 
language at any time.
    Fourth and finally, when Americans in the Revolutionary era 
thought about political representation, there was, however, one 
maxim that consistently guided their thinking. It was the idea 
first stated by John Adams in 1776, repeated by others 
afterwards, including at the Constitutional Convention, that a 
legislative assembly should be a mirror miniature portrait or 
transcript of the larger society.
    As Adams put it, it should be an equal representation, or, 
in other words, equal interest among the people should have 
equal interest in it.
    Of course, the Founders' conception of who constituted 
political society was hardly identifiable with ours but in 
their times, this was still a remarkably democratic vision of 
what a popular government should look like.
    Their idea of equal interest is not very different from the 
one-person, one-vote principle that has guided modern American 
thinking about representation since the 1960s. It implies that 
the true goal of democratic politics is equitable inclusion, 
not overt distortion or exclusion.
    The Times, Places and Manner Clause invites Congress to 
think boldly about how to attain that end, which is, in fact, 
part of the process of forming a more perfect Union.
    Thank you very much.
    [The statement of Mr. Rakove follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    The Chairperson. Thank you very much, Professor.
    Now I would like to call on Dean Tolson for her testimony.

                  STATEMENT OF FRANITA TOLSON

    Ms. Tolson. Thank you very much.
    To Chairperson Lofgren, Ranking Member Davis, and 
distinguished Members of the committee, I appreciate the 
opportunity to appear and speak about the scope of 
congressional power under the Elections Clause of Article I, 
Section 4, which is a vast source of power, but has, 
nonetheless, been significantly underutilized.
    Now, under the clause, States, as we know, can set 
procedural regulations for Federal elections; but, importantly, 
Congress can implement, quote, ``a complete code for Federal 
elections,'' end quote. And this code can supplement or, 
alternatively, displace the State regulatory regime, 
particularly if States have jeopardized the health and vitality 
of Federal elections in some way.
    Under the clause, Congress can make or alter State law. 
Congress can also commandeer State law, State officials, and 
State offices to implement Federal law. In certain 
circumstances, Congress can regulate voter qualification 
standards.
    By invoking a number of constitutional provisions that 
empower Congress to regulate the times, places, and manner of 
Federal elections, as well as regulate voter qualification 
standards, H.R. 1 stands on firm constitutional footing 
because, first, provisions similar to those in H.R. 1 have 
already been validated by Supreme Court case law and by prior 
congressional classes.
    And, second, Congress' authority to enact Federal voting 
rights legislation is substantially broader when it acts 
pursuant to the Elections Clause, as well as the 14th and 15th 
Amendments, than when proceeding under the latter two 
amendments alone.
    Despite the Elections Clause's untapped potential, it has 
not been a source of much Federal legislation, which 
contributes to this perception that H.R. 1 is unprecedented 
and, therefore, unconstitutional. It is not.
    For example, a 1932 Supreme Court decision held that voter 
registration for Federal elections is a manner regulation under 
the Elections Clause, a holding that the Court reaffirmed as 
recently as 2013. So H.R. 1's voter changes are not 
constitutionally problematic.
    In addition, Congress can commandeer State offices and 
State officials to implement Elections Clause legislation, as 
it has in statutes like the National Voter Registration Act, 
which creates voter registration agencies out of all offices in 
the State that provide either public assistance or State-funded 
programs. Courts have found these provisions to be 
constitutional, illustrating that those portions of H.R. 1 that 
impose additional obligations on State officials with respect 
to voter registration are also constitutionally sound.
    Moreover, the Supreme Court in a 2015 decision has upheld 
the use of independent commissions to draw congressional 
districts, thereby validating H.R. 1's use of these commissions 
for Federal elections.
    Given these precedents, these provisions of H.R. 1 are 
arguably constitutional. There will, nonetheless, be inevitable 
constitutional objections to provisions of H.R. 1 that touch on 
voter qualifications, which are usually within the State's 
domain, and in particular the fact that H.R. 1 reenfranchises 
those with felony convictions for purposes of voting in Federal 
elections.
    However, these concerns are also unfounded. Under the 
Elections Clause, there are limited circumstances in which 
Congress can reach voter qualifications, particularly in 
instances where State regulations discourage or unduly impact 
voter turnout in Federal elections.
    For example, the Uniformed and Overseas Citizens Absentee 
Voting Act, or UOCAVA, enacted solely pursuant to the Elections 
Clause, created a uniform Federal ballot specifically for use 
by military personnel and incorporated State voter 
qualification standards to determine which personnel were 
entitled to vote.
    Congress enacted UOCAVA to address an exigency that 
threatened the health and legitimacy of Federal elections; 
namely, the disenfranchisement of a category of military voters 
overlooked and insufficiently protected by State law.
    But when the Elections Clause is coupled with Congress' 
power under the 14th and 15th Amendments, both of which are 
also invoked as explicit authority for H.R. 1, then Congress' 
authority to reach voter qualifications is even more 
indisputable.
    H.R. 1 will prohibit States from barring individuals no 
longer in custody from exercising their fundamental right to 
vote in Federal elections as protected by the 14th and 15th 
Amendments. As it stands, millions of people--a category that 
is, unsurprisingly, disproportionately minority, given the 
racist status of these laws generally--are disenfranchised for 
hundreds of different felonies and misdemeanor offenses.
    As the Supreme Court has recognized, Congress has the power 
under the Elections Clause to, quote, ``protect the elections 
in which its existence depends,'' and, quote, ``to protect the 
citizen and the exercise of rights conferred by the 
Constitution of the United States essential to the healthy 
organization of the government itself,'' end quote. H.R. 1's 
felon disenfranchisement provisions serve this exact purpose.
    As these judicial and statutory precedents establish, most 
of H.R. 1's provisions do not approach the outer limit of 
Congress' power under the Elections Clause which empowers that 
body to, again, make or alter State law, to commandeer State 
law, State officials, and State offices, and, especially when 
coupled with Congress' power under the 14th and 15th 
Amendments, to regulate voter qualification standards.
    Thank you so much for the opportunity to discuss my 
research. I welcome any questions that you have.
    [The statement of Ms. Tolson follows:]
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    The Chairperson. Thank you very much, Dean.
    Now we will turn to the other dean, Dean Tokaji for your 
five minutes.

                 STATEMENT OF DANIEL P. TOKAJI

    Mr. Tokaji. Thank you, Madam Chairperson, and thank you, 
Ranking Member Davis, Representative Steil from my State, the 
great State of Wisconsin, and the other honorable members of 
this Committee.
    My name is Dan Tokaji, and I am the Dean at the University 
of Wisconsin Law School. My primary research is in the area of 
election law, and I have written on Congress' power under the 
Elections Clause before.
    In a word, one that the U.S. Supreme Court has used 
repeatedly for around 142 years, Congress' power over 
congressional elections under this clause is paramount. Under 
the unambiguous text of the Elections Clause and a long line of 
Supreme Court precedent, Congress has broad plenary authority 
over the time, place, and manner of conducting congressional 
elections.
    The most recent explication of this principle was Justice 
Scalia's opinion for seven Justices in Arizona v. Inter Tribal 
Council of Arizona, back in 2013, where he referred to the 
broad and comprehensive scope of Congress' Elections Clause 
power.
    In the remainder of my testimony, I will provide some 
background on what the Elections Clause means and how it has 
been construed by the Supreme Court.
    So, the Elections Clause, the text of which Madam 
Chairwoman read earlier, allows States to prescribe rules for 
the conduct of congressional elections, but only insofar as 
Congress declines to preempt State legislative choices, as the 
Court said in Foster v. Love.
    As Justice Scalia explained in Arizona v. ITCA, this grant 
of congressional power to Congress was insurance against the 
possibility that States would try to undermine the Union by 
either failing to have procedures for congressional elections 
or for having ones that were inadequate.
    As he put it, quoting the Federalist Papers, the State 
legislatures otherwise could at any moment annihilate it--that 
is, the Federal Government--by neglecting to provide for a 
choice of a person to administer its affairs.
    Congress has exercised its broad power to regulate Federal 
elections repeatedly, through the 1842 Apportionment Act, the 
post-Civil War Enforcement Acts of 1870 and 1871, and, more 
recently, through the National Voter Registration Act and the 
Help America Vote Act.
    I won't go through all the precedent that supports these 
and other laws in which Congress has previously exercised its 
Elections Clause power, but I will hit a few highlights.
    The first big case was Ex parte Siebold, in 1879, a case 
involving the Reconstruction-era Enforcement Acts, and in that 
case the Court said that Congress may exercise its power as it 
sees fit and that, quote, ``When exercised, the action of 
Congress so far as it extends and conflicts with the 
regulations of the State necessarily supersedes them.''
    In Smiley v. Holm, in 1932, the Court went on to say that 
Congress may provide a complete code for congressional 
elections if it wishes, which includes registration, 
supervision of voting, protection of voters, prevention of 
fraud and corrupt practices, counting of votes, duties of 
inspectors and canvassers, and making and publishing of 
election returns.
    Now, there was a time in the early 20th century where the 
Court said that the Elections Clause didn't reach primary 
elections, but that was reversed in the United States v. 
Classic case in 1941 where the Court clarified that indeed the 
Elections Clause does allow Congress to reach primaries as well 
as general elections.
    That power under the Elections Clause, of course, like any 
power, isn't unlimited. The Court in the U.S. Term Limits case 
says that the power doesn't include the power to dictate 
election outcomes, to favor or disfavor a class of candidates, 
or to evade important----
    Mr. Tokaji. Thank you.
    But Congress does, as the Court clarified in Arizona v. 
ITCA, have very broad power, and as Justice Scalia explained, 
this power is broader than under other clauses of the 
Constitution.
    There is good reason for treating Elections Clause 
legislation differently and more favorably from laws enacted 
under other congressional powers because Congress, in the 
Elections Clause area, Congress isn't acting in a place where 
the States had preexisting authority before the Constitution.
    Now, there is a question of where Congress' Elections 
Clause power ends and the Qualifications Clause power begins, 
which I am happy to address in my response. But the bottom line 
is that Supreme Court precedent confirms that the Elections 
Clause means what it says--that Congress has the broad power to 
make or alter the rules governing the time, place, and manner 
of conducting congressional elections.
    Thank you, Madam Chairperson.
    [The statement of Mr. Tokaji follows:]
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    The Chairperson. Thank you very much, Dean.
    Last we have Secretary of State Michael Adams.
    Thank you for joining us, Secretary Adams, and you are now 
recognized for five minutes.

                 STATEMENT OF MICHAEL G. ADAMS

    Mr. Adams. Thank you so much, Madam Chairperson and Members 
of the committee. Good afternoon. I am Michael Adams, 
Kentucky's Secretary of State. It is an honor to be with you 
today.
    I understand the topic of discussion is the Elections 
Clause of our Constitution. Any day that Congress spends 
considering the text and intent of our Constitution is a good 
day, and I wish you every success. My purpose here is to 
address policy concerns with Congress increasing Congress' role 
in elections for Congress.
    First, some background. I took office last year, and the 
elections I supervised as my State's chief election official 
all took place amid the pandemic. I asked our legislature for 
and received emergency powers, to be shared with our Democratic 
Governor, to permit us to implement temporary changes to our 
election system to ensure public safety, voter access, and 
election security. We expanded absentee voting, and we 
established early voting for the first time in Kentucky 
history.
    In the days before our June 2020 primary election, Kentucky 
was singled out in a national campaign of harassment and hate, 
with false accusations of voter suppression. Our phones were 
clogged with angry callers from Washington, D.C., California, 
and New York cursing at us, sometimes threatening violence. 
This was directed at us by celebrities on Twitter, including a 
certain Member of Congress who now chairs the Senate committee 
analogous to yours.
    When the dust settled, however, Kentucky had conducted the 
most successful election in America at that point in the 
pandemic--safe, orderly, and with high turnout. Kentuckians 
knew better how to run an election in Kentucky than did the 
national media or national politicians.
    The expanded voting reforms and enhanced security measures 
we implemented proved so successful and so popular that our 
legislature just made most of them permanent, with the votes in 
both chambers bipartisan and nearly unanimous.
    Kentucky is the national leader this year in election 
reform. But we are not alone. Bipartisan legislation expanding 
voting opportunities has passed in Louisiana and Vermont too.
    Why was Kentucky able to pass a bipartisan election reform 
measure, the most significant modernization of our system since 
1981, that made it both easier to vote and harder to cheat, 
that had widespread support across the political divide? Why 
did Louisiana and Vermont follow suit? Well, because you did 
not stop us. You allowed democracy to work.
    There are two lessons here.
    One, Kentucky knows best what is best for Kentucky, and I 
would urge you to let Kentucky be Kentucky, let Louisiana be 
Louisiana, and Vermont be Vermont, and respect the laboratories 
of democracy that lead to innovation in a decentralized 
election system.
    Vermont passed mail-in voting that reflects their political 
culture. In Kentucky, even with expanded absentee voting--and 
even in a pandemic--most voters last year, including most 
Democrats, voted in person. That reflects our political 
culture.
    The second lesson is that election policy should be made 
not by a caucus, not by a think tank, but by election 
administrators who work in a bipartisan fashion.
    Bipartisanship not only leads to a better product, with 
concerns on both sides accomplished, it also shows voters on 
both sides that the rules are not being rigged to favor one 
party over another.
    I understand the concern many of you have with State 
legislatures acting in a partisan fashion in passing election 
legislation, and I would encourage you to avoid doing the same 
thing yourselves. Do not be victims of a false narrative.
    I don't agree with every election law that has been offered 
by some Republican State legislators, but the reality on the 
ground is more complicated and far better than what you are 
hearing about here in this Beltway echo chamber.
    The desire to accuse red States, especially Southern ones, 
of voter suppression is so strong that media outlets covering 
Kentucky's achievement are rewriting their own coverage to fit 
that narrative.
    On April 8, CNN reported, ``Kentucky Governor Beshear signs 
into law bipartisan elections bill expanding voting access.''
    On June 30, CNN reported, ``Seventeen States have enacted 
28 laws making it harder to vote,'' and included Kentucky in 
their count.
    On April 8, The Washington Post reported, ``Democratic 
Governor in deep-red Kentucky signs bill to expand voting.''
    On June 2l, The Washington Post included Kentucky in their 
list of 17 States that allegedly were undermining democracy.
    The cognitive dissonance is so strong that these outlets 
don't even accept facts from their own reporting when it 
contradicts this narrative.
    Our politics has grown increasingly harsh, even dangerous, 
the more our big decisions are federalized rather than resolved 
at the State and local levels. I urge you to respect the 
diversity of our country and the majesty of our 50 different 
but well-functioning election systems.
    Thank you so much.
    [The statement of Mr. Adams follows:]
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    The Chairperson. Thank you, Mr. Secretary.
    We now come to the time when Members of the committee may 
ask questions for five minutes. I will turn first to 
Congressman Raskin, who is also a constitutional law professor.
    So, Mr. Raskin, you are recognized for five minutes.
    Mr. Raskin. Madam Chairperson, thank you so much for 
calling this important hearing, and thanks to all the witnesses 
for their testimony.
    Dean Tokaji, let me start with you.
    In American history, States have sometimes been in the 
forefront of expanding and defending the franchise. I know that 
New Jersey gave women the right to vote at the very beginning 
of the Republic. But at the same time, the States have often 
been in the forefront of disenfranchising people with, like, 
literacy tests, poll taxes, grandfather clauses, other attempts 
to disenfranchise.
    So what do you make of the claim we just heard from 
Secretary Adams that we should just trust the States and let 
Kentucky be Kentucky and let New York be New York and let every 
State be itself? Is that consistent with how we have respected 
voting rights over the last century, for example?
    Mr. Tokaji. Thank you so much for that question, 
Representative Raskin.
    There are two important principles here, and we have to 
recognize both of them.
    States are, of course, laboratories of democracy. It is a 
great thing about our federalist system that States can 
experiment, as they so often do and that includes experimenting 
with election reforms, like same-day registration. A number of 
States have experimented with and have proved quite successful 
in making it more convenient to vote and increasing turnout.
    On the other hand, there is a competing principle, which is 
that, in the end, Congress must have the authority to regulate 
congressional elections, and that includes regulating to 
protect the fundamental right to vote, as it has sometimes had 
to do.
    The first noteworthy example of this, or at least one of 
the first, are the Enforcement Acts, which Dean Tolson has 
written about in her scholarship and has addressed in her 
testimony.
    In the Reconstruction period it was absolutely vital for 
Congress to exercise its authority under the Elections Clause, 
as well as the 14th and 15th Amendments to the United States, 
in order to protect the voting rights of newly freed African 
Americans. And so, too, after the appalling disenfranchisement 
of African Americans that took place after Reconstruction and 
throughout most of the 20th century, it was, again, necessary 
for Congress to act, in part under its Elections Clause 
authority, to protect the right to vote.
    So, yes, we do want States to be laboratories of democracy. 
At the same time, Congress has to have the ability to protect 
the right to vote, particularly in Federal elections, as the 
Elections Clause allows.
    Mr. Raskin. Thank you for that.
    Dean Tolson and Professor Rakove, I want to go to the other 
point that was raised by Secretary Adams about election 
administrators. So I guess it is two parts.
    One, what do you make of the claim that we should really 
delegate this decision to election administrators, that they 
are a better judge of what America needs in terms of voting 
than, say, the representatives of the people in Congress, in 
the House and the Senate?
    I was struck by that, especially when the good witness said 
let Kentucky be Kentucky. There is no one more powerful than 
his U.S. Senator, Mitch McConnell, in all of Congress. I don't 
think he has got to worry about Kentucky's point of view being 
represented in Congress.
    But, in any event, I noticed there is an attack on election 
administrators going on. I mean, we saw that in 2020 when 
Donald Trump literally was calling election administrators and 
telling them to revise their vote totals. Most famously, of 
course, he called the Secretary of State in Georgia, Brad 
Raffensperger, and said, ``Just go find me 11,781 votes. That 
is all I am looking for.''
    And then, after that appalling attempt at election fraud 
was exposed to the whole world, rather than everybody 
apologizing for it, running from it, and trying to figure out 
what we could do to protect election administrators, now there 
is an effort to displace him and run somebody against him so 
they have a sufficiently sycophantic and subservient Secretary 
of State in Georgia. It is absolutely amazing to watch that.
    But what about the idea that these increasingly partisan 
election officials who are being targeted around the country 
should be deferred to in terms of the voting rights of the 
people?
    And, Dean Tolson, start with you, and then Professor 
Rakove.
    Ms. Tolson. Okay. Thank you so much for that question, 
Representative.
    I do think that I appreciate Secretary Adams' point, 
because the States are important laboratories, but sometimes 
they are actually laboratories that produce some of the most 
disenfranchising measures in our history.
    So if you look at the Mississippi Constitution of 1890, 
that is a Constitution where a State substantially 
disenfranchised most of the African Americans within the State, 
and other Southern governments followed suit, mimicking 
Mississippi's efforts. So, yes, the laboratory point is well 
taken, but at the same time, States sometimes use their 
laboratories for ill.
    I look at H.R. 1 as a list of best practices. So, it is a 
list of things that will further a national conception of 
democracy.
    To some extent, democracy cannot be a State-level 
conception. We must have some sense of who we are as a national 
democracy if we are going to hold ourselves out as a democracy. 
I think H.R. 1 furthers that goal while leaving election 
administrators sufficient discretion over the election 
apparatus within the State.
    Mr. Raskin. Madam Chairperson, my time is up. Would it be 
okay if Professor Rakove just addressed my question?
    The Chairperson. Sure.
    Mr. Rakove. I don't really have very much to add to the 
discussion beyond noting that in the founding years, the whole 
idea of having bureaucracy was itself also something of an 
innovation.
    I mean, I think the best way to think about this is from 
kind of a quasi-originalist perspective, simply to recognize 
that the fundamental conflict would have--or the fundamental 
tension would have been seen as one involving two levels of the 
legislatures. The idea that you would actually have anything 
like a Secretary of State at the State level responsible for 
administering elections, obviously extremely common today, 
would have been an anomaly in that period.
    So, the basic tension that Madison and others were worried 
about was the idea of the political motivations working really 
at the legislative level more than at the bureaucratic level.
    The Chairperson. The gentleman's time has expired.
    We will now turn to the gentleman from Georgia, Mr. 
Loudermilk for five minutes.
    Mr. Loudermilk. Well, thank you, Madam Chairperson. I 
appreciate everyone being a part of this hearing today.
    The first thing before we get into my questions, I think we 
need to separate the argument that we are having over the 
constitutionality of Congress' ability to set the times, place, 
and manner.
    There are really two issues that are being conflated in 
this argument.
    The first is the qualification of electors. And that is 
very specific within the Constitution, and our Founders and the 
courts have upheld that the Constitution establishes clearly 
the qualification of electors.
    And this is a lot of the argument I am hearing, and a lot 
of the Court cases have upheld that, yes, the Federal Congress 
has the ability, through the Constitution, to establish who the 
electors can be, and the States do not have the ability to 
usurp that, because that is set in the Constitution. It has 
been upheld several times.
    The second aspect of the argument is the times, places, and 
manner, which our Founders said should be taken literally. The 
British system was very broad when it talked about time, 
places, and manner. It included electors in that system. Our 
Founders, through their debates in the Constitution and in the 
Federalist Papers, were very specific on the time, places, and 
manner.
    As it was brought up earlier, yes, Hamilton made the 
argument that every government ought to contain within itself 
the means of its own preservation.
    The reason for this was, during the ratification of the 
Constitution, the Anti-Federalists and those who were opposed 
to this provision believed that factions or parties, as we 
would call it today, could manipulate election laws so they 
could stay in office indefinitely. That was their argument.
    Hamilton, however, a quote that comes out of the Federalist 
that I haven't heard quoted here today, clarified that. After 
he said every government ought to have--ought to contain within 
itself the means of its own preservation, he argued that the 
provision was a reasonable compromise that gave Congress 
default or secondary powers that would be exercised--and here 
is the quote--``whenever extraordinary circumstances might 
render that interposition necessary to its safety.''
    So what Hamilton is saying is the States have the primary 
power, that Congress only has a secondary or default power. And 
his argument was in case of States setting times, places, and 
manners to where they would not fulfill the seats for Congress, 
that they could manipulate, they could hold Congress hostage 
per se if they didn't.
    And that was the secondary argument that they were making, 
and that is why Congress has that secondary power, not the 
primary.
    Yes, the Federal Government has a primary on qualification 
of electors, and this is getting convoluted in the argument 
here, and so I think we need to separate that. And the 
Republicans' argument here is not with the qualification of 
electors. Our argument is that, would the States provide or 
hold the primary responsibility for times, places, and manners?
    With that, Secretary Adams, as you know, according to 
Article I, Section 4, as we have been talking about through all 
of this, the time, places and manners, as I have laid out, that 
the States have the primary responsibility for setting that. 
But even still, many of my colleagues on this committee and 
others are pushing this Article I, which is a national takeover 
of elections, which would, in my opinion, circumvent the true 
intent of our Founders and our Constitution.
    My question is, how would this one-size-fits-all approach 
impact the election administration across the country? Let's 
say especially in Kentucky. Look at the provisions that would 
substantially--potentially substantially change how you hold 
elections in Kentucky.
    Mr. Adams. Well, thank you, Congressman.
    Let me give you a pretty riveting example. Back in 
December, as I was drafting my election reform measure for 
Kentucky, the biggest change of our system, modernization of 
our system since 1891, we made absentee voting easier, we 
expanded early voting, and so forth, I had a meeting with a 
high-level official in our State NAACP. And to my surprise, he 
told me, ``Secretary Adams, please don't expand mail-in 
voting.'' He said, ``My community doesn't want that.''
    And that really struck me, that you think of, for example, 
mail-in voting--which, by the way, I am not here to support or 
oppose. It is just, should that be implemented from outside of 
our State on our State because of what other States like?
    Look, if Utah wants it, that is great for them. I respect 
that. But in Kentucky, African Americans want to vote in 
person, Democrats want to vote in person, everybody does. That 
is our culture. We are just different. That is our tradition, 
and that is how people feel like they have a voice. And so I 
think we have to respect that. The best way to do that is to 
let each State do it their own way.
    Mr. Loudermilk. All right. Thank you.
    I see my time has expired, and I will submit my other 
questions for the record.
    Let me just say in response to your answer there, we know 
historically by far in-person voting is the most secure. That 
is why many people prefer to do that. Much more secure than 
mail-in voting. And traditionally that is where we have seen 
the largest amount of fraud.
    With that, Madam Chairperson, I yield back.
    The Chairperson. The gentleman yields back.
    The gentleman from North Carolina, Mr. Butterfield, is 
recognized for five minutes.
    Mr. Butterfield. Let me thank you very much, Madam 
Chairperson, for convening this very important hearing today.
    And certainly thank you to the witnesses for your 
testimony.
    And it is good to see all of my colleagues. I look forward 
to our return to Washington.
    Madam Chairperson, as a law student many, many years ago, 
as a lawyer, as a trial judge, supreme court justice, over the 
years I have had many occasions to read and re-read and study 
court opinions and law review articles all about the Elections 
Clause. I have come to the same conclusion every time I read it 
and read about it: The Elections Clause seems to me to be 
unambiguous.
    So, I want to begin today by asking each one of our 
witnesses the very same question. Should Congress choose to 
pass a regulation affecting Federal elections, do you agree or 
disagree that such regulation will preempt those passed by a 
State?
    Let me go to each one of the witnesses. I guess I can go in 
the same order that you testified.
    Mr. Rakove. I am just a working historian and I would be a 
little averse to offering these kinds of judgments. But, yes, I 
mean, the basic answer I would offer is yes. And I see no harm 
in it.
    Mr. Butterfield. Is it unambiguous in your world?
    Mr. Rakove. Say again?
    Mr. Butterfield. Is it unambiguous----
    Mr. Rakove Yes.
    Mr. Butterfield [continuing]. The Elections Clause?
    Mr. Rakove. Yes.
    Mr. Butterfield. All right.
    The next witness.
    Ms. Tolson. It is going to preempt contrary State laws, and 
it will create new law in some places. So for those States that 
already have independent commissions, for example, it wouldn't 
preempt those laws because it requires it for Federal 
elections. But in some cases, if there are State laws that 
conflict, then absolutely preempts.
    Mr. Butterfield. Sure.
    Mr. Tokaji. Representative Butterfield, I do agree. It is 
unambiguous that under the Elections Clause Congress has broad 
plenary power over the time, place, and manner of conducting 
congressional elections. And you don't have to take my word for 
it. That is what Justice Scalia wrote in the Arizona v. ITCA 
opinion reaffirming over almost a century and a half of 
precedent.
    Mr. Butterfield. Yes.
    Secretary Adams, before you respond, you noted in your 
testimony that you were testifying today primarily about 
policy; in other words, on whether Congress, whether we should 
pass election legislation.
    And for the sake of clarity, when it comes to the narrow 
and legal question of whether Congress can pass legislation--
and that is what my first question is about--would you agree 
that the Elections Clause gives us, Congress, broad and 
expansive authority to regulate congressional elections, 
putting aside the policy concerns?
    Mr. Adams. Well, I think that is kind of a subjective 
question with kind of a subjective answer. Clearly, there are 
certain things Congress could do that would go beyond its 
authority. There are guardrails in our constitutional system. 
We are a system of dual sovereignty, States and the Congress. 
We have seen that time and time again in Supreme Court 
decisions. For example, Congress can't require States to do 
Medicaid and they can't take away their----
    Mr. Butterfield. What about mail-in voting? What about 
mail-in voting? Do we have that authority?
    Mr. Adams. If I could finish my answer.
    There are limits on what Congress can tell the States to 
do, how much they can commandeer them, whether they can require 
them to do certain things in exchange for Federal funds.
    So if you are asking do I think that you have significant 
authority, I certainly think that you do, but it is not 
unlimited.
    Mr. Butterfield. Does that include mail-in voting?
    Mr. Adams. I can't tell you that I have researched this 
issue. Perhaps the other scholars have. I don't know that you 
do or don't----
    Mr. Butterfield. You mentioned a moment ago that African 
Americans in Kentucky want to vote in person. How did you 
arrive at that conclusion?
    Mr. Adams. Well, a couple of things. One, I was told that 
by a high-ranking official of the State NAACP, which----
    Mr. Butterfield. And I can assure you that poll after poll 
all across the country is contrary to that position. Minority 
groups and all groups want the ability to vote absentee as well 
as early voting.
    Let me just move on if I can. My time is running out, Madam 
Chairperson, let's see how much time. Twenty seconds. I don't 
have enough time, Chairperson Lofgren, for my final question, 
so I will yield back.
    Thank you.
    The Chairperson. The gentleman yields back.
    Mr. Steil is recognized for five minutes.
    Mr. Steil. Thank you very much, Madam Chairperson. My tour 
of the rural Wisconsin continues. I have not found a Kinko's, 
but I find more and more people that do have access to camera 
phones. It is also great to see Dean Tokaji from the University 
of Wisconsin Law School, my alma mater, as well as everybody 
else on today.
    I would like to direct my first question if I could to 
Secretary of State Michael Adams.
    Ballot access and methods of voting have been subject to 
several of our Election Subcommittee hearings. Some have 
suggested the importance of providing a mandatory vote by mail. 
Would that guarantee an increase in voter turnout in your 
analysis?
    Mr. Adams. Well, in Kentucky, no, I don't think that it 
would. In Kentucky, again, our culture is people want to vote 
in person. Before I took office, we were 98 percent vote in 
person, two percent absentee, and I have certainly worked hard 
to make voting as easy as possible. But I don't know that it 
would make much of a difference. I think people really want to 
vote in person. That is why, in Kentucky, for example, I just 
quadrupled the number of days people get to go vote in person. 
That is how we choose to vote.
    Mr. Steil. Can I dig in on that? It seems like there are--
political cultures are different in different States how people 
prefer to vote. For example, in Kentucky you may want to cast 
your ballots in one manner, which may be different than Utah or 
Wisconsin. Can you expound on your understanding on that point 
of how different political cultures exist in different States 
in the United States?
    Mr. Adams. Yes. And if I could make one overall point 
today, I am not here to criticize the components of H.R. 1. I 
don't agree with many of them, but that is not my argument so 
much. My argument is I don't want to see a Democratic or 
Republican national bill change the election rules. I think 
California and Colorado would be upset if the Republicans did 
that when they held power.
    So seats are different. Utah has a vote-by-mail system. 
They are more Republican than Kentucky is, and they seem to 
like that, and I don't question that at all. It is super for 
them, but I don't think in Kentucky we would take to that as 
equally. I think the best way to expand a franchise in 
Kentucky, what we saw last year is, even though we made 
absentee voting available to all people, they didn't want to 
vote absentee; they wanted to vote in person, and they still 
came to vote in person. So the easiest way and, actually, the 
most cost-efficient way to expand access to the ballot was to 
expand the number of days people could vote in person.
    Mr. Steil. And so knowing our States have different 
political cultures as well as very significant diversity in our 
geographic footprints, is the best level of government to make 
these decisions to encourage everyone to vote, make it easy to 
vote and hard to cheat? Is the best level of government to deal 
with that the State government or the national government?
    Mr. Adams. Well, I think you just look at the record. Look 
at what we have accomplished in Kentucky compared to, 
respectfully, what the national government has with regard to 
election administration. I am really proud of what our State's 
achieved, and we can only do that because you all didn't take 
over the system. You allowed us to actually have breathing 
space for Democrats and Republicans to come together around the 
table and pass something with almost unanimous votes. That is 
something that was idealized by a Republican secretary of state 
and signed into law by Democratic Governor.
    Mr. Steil. So, you are a Secretary of State. You are also 
an elections attorney. Could you walk us through your 
interpretation of the Elections Clause? Just dive in a little 
further in your testimony.
    Mr. Adams. Yes. Look, I would be first to admit I have 
never researched that issue in a scholarly fashion. I have 
never had it pop up in a case I have had for any client of 
mine. So, I don't have a whole lot to add in terms of the 
history or the text of that. I think it speaks for itself.
    Mr. Steil. I appreciate your testimony here today.
    And, with that, Madam Chairperson, from rural America, I 
yield back.
    The Chairperson. The gentleman yields back.
    Representative Scanlon is now recognized for five minutes.
    Ms. Scanlon. Thank you so much. Is this coming through 
okay? I am traveling myself.
    The Chairperson. She is in rural Pennsylvania. So, yes, you 
are coming through.
    Ms. Scanlon. Okay. Thank you, Chairperson Lofgren.
    And I have been anxious to have this discussion about 
Article I, Section 4 and, of course, I am pleased to see my 
former professor, Professor Rakove, who, as he said, we knew 
each other way back in the day, longer than I care to admit, 
but it is great to have him on this hearing today because, of 
course, he is a preeminent national authority on the original 
meanings of the Constitution. In fact, he authored a book that 
won a Pulitzer Prize with that title, ``Original Meanings.'' So 
I guess I would like to direct my first question to him about 
the clause that we are talking about here Article I, Section 4. 
We have heard an awful lot about time, place, and manner, but 
the second half of that clause is what gives Congress the power 
to do something different than the State legislatures choose to 
do.
    Can you talk about the drafting of such a clause and what 
the second part of it, giving Congress the power, means with 
respect to the authority that is given to States in the first 
part?
    Mr. Rakove. To talk briefly about the drafting, the clause 
did not originate in the larger body of the Convention. It came 
out of the work of the Committee of Detail, which, you know, 
met between July 26 and August 6, 1787, when the Committee took 
the general resolutions the Constitution had at the Convention 
adopted at that point and turned them into the working text of 
the Constitution.
    So the idea of speaking more specifically about the conduct 
of elections originated in Committee; it was only discussed on 
the single day of August 9. And it was discussed primarily, not 
solely, but primarily because the two South Carolina delegates 
said the clause was superfluous; we should just trust the 
States to do what they did.
    It is worth noting in South Carolina was kind of a peculiar 
State or distinctive State in the sense that they had a long 
tradition of the colonial, the State legislature dominating the 
politics of its State. Once they made this proposal, four or 
five other delegates spoke, and they spoke pretty robustly in 
opposition to it.
    I think the important point I want to stress and it is--I 
think it does involve thinking historically about change over 
time as much as legally about decisions and enactments, is to 
realize that, you know, this was a deeply experimental process. 
There was no example of designing the kind of national 
political system that the Framers were creating.
    In my written statement, I talk a bit about the British 
practice, which is, you know, two knights for every shire or 
county and then give Parliamentary representation done on a 
corporate basis, but there is no idea of having expanding 
electorate of the kind that Americans were bound to have. And 
there was a lot of genuine uncertainty in the very beginning 
about, you know, were we going to represent the States, you 
know, as aggregate constituencies? Pennsylvania voted--in 
Pennsylvania in 1789, you vote for the entire State delegation. 
Would you do it by districts with voters in individual 
districts? Vote for Representatives from each district in the 
State? These were all the possibilities.
    So I think the important thing to stress, you know, 
Congresswoman Scanlon, is that there was a strong prospective 
dimension and indeed a kind of experimental dimension to the 
clause, the idea that you would learn more about how the 
national political system would work on the basis of 
experience. That experience would also include the question of 
whether issues of discrimination as we think about them now but 
for which there were--there was an 18th century way to think 
about this, that you have an equal interest in society should 
be equally represented in the legislature. In some ways, that 
is a very modern notion as well.
    So I think thinking about the second half or the latter 
part of the clause in these terms I think would be really 
helpful. It is not just about protecting the States; it is 
about, aren't--there better models of national representation 
broadly defined that Congress would want to accept.
    Ms. Scanlon. Well, I mean, coming from Pennsylvania, where 
over the past decade we have had a number of different voter ID 
laws, gerrymandering, et cetera, with a Republican legislature 
where the house majority leader was recorded saying that many 
of these provisions were implemented in order for his party to 
retain power, that seems to be like the very type of conduct 
that the Framers were rightly skeptical of. And as we are 
hearing about, you know, States having certain cultures of 
voting, we also know that certain communities have cultures of 
voting. Take, for example, the Black community that has a 
tradition of voting on Sunday after church, and we have 
recently seen some State legislatures try to undermine that 
tradition of voting.
    So I guess just finally I was interested in what you wrote 
about Madison and the skepticism of the types of activities 
they were afraid that State legislatures might undertake, 
including closing polling places or preferring certain voters 
over other types of voters. I don't know if we can get an 
answer to that, but I will yield back because I see my time has 
expired.
    The Chairperson. The gentlelady's time has expired.
    I recognize the gentlelady from New Mexico for her five 
minutes. Unmute, though.
    Ms. Leger Fernandez. There we go. Thank you, Chairperson 
Lofgren, and our witnesses for their important discussion on 
the constitutionality of Federal voting laws.
    Professor Rakove, you discussed how the Founders so 
eloquently described the need to protect the ability of voters 
to elect a Representative for assembly that in John Adams words 
was a miniature, an exact portrait of the people at large of 
the country. You discussed how that representation might not be 
what it is today, but today it is supposed to be every citizen 
whether they be Native American, Black, Latino, whatever, 
right, that they need to be able to elect Representatives that 
reflect them, and our concern is that that is not happening, 
that the restrictions in terms that are being enacted really 
are targeted so that certain communities cannot--cannot--
succeed in getting that beautiful portrait of themselves in 
Congress.
    Can you explain how the Elections Clause and its history 
apply to these present-day concerns? Aren't they in some ways 
the concern is similar, correct?
    Mr. Rakove. Well, certainly. In some ways, I would just 
assume to defer to my two colleagues who have written so much 
about the periods of discrimination, the practice of voting. 
The phrase we heard earlier was ``laboratory''--the States 
viewed as laboratories of democracy, but you could say equally, 
well, the States have often served as laboratories of 
discrimination. I mean, that is the whole history of the Jim 
Crow era restrictions on a Black electorate once it was created 
during the time of Reconstruction. The question all of us are 
actively considering today, particularly in the aftermath of 
the Shelby County decision, is whether we are seeing, you know, 
not--obviously not a full-scale revival on the basis of what 
happened, you know, in the 1890s and after 1900, but whether 
the kinds of laws being enacted at the State level will that 
have kind of discriminatory effect.
    Congress, as you all know, went to great lengths in its 
periodic reenactments of the Voting Rights Act to adduce the 
data that the Court now seems fairly anxious to deny. But I 
think the question, just quickly on the history side, I mean, 
the question of a mirror, it was something that both the 
Federalists and anti-Federalists actively debated. If you want 
to hear the other side of the question, there is a fascinating 
passage from a guy named Melancton Smith from New York, also 
known as the Federal Farmer, tried to imagine what an ideal 
Congress should look like. And his idea was actually it would 
be good if it had a kind of what we would call a middle class 
quality, that it is easy for the great to associate. It is easy 
for people of wealth to kind of get together and decide what 
they are going to do, and they are going to intimidate these 
other characters like these Representatives. It is very 
important now in the 18th century--actually, every Member of 
Congress today should know this, but the ambition of being 
reelected was not the dominant motive in 18th century politics. 
The mean term of service in the House of Representatives down 
to about 1890 was three years, meaning that most Members served 
one term or two.
    So, the whole idea that our politics would be driven, 
including the whole gerrymandering process or, as I said in my 
written statement, the idea that, in the United States, voters 
don't choose Representatives, Representatives choose their 
voters; that idea would have been kind of hard to grasp or 
accept in the late 18th or 19th century because, by and large, 
it was thought that most Representatives would be amateurs. 
They would come, and they would go. They would rotate in 
office. So, you know, the striking thing to me, though, is--and 
I think Madison is a good example of this. I mean, how much of 
what we are debating about today was actively in a certain 
sense anticipated by Madison, including, to be honest, the 
distrust of State legislatures. I mean, the whole animus behind 
the Federalist movement was the belief that State legislatures 
could not be relied upon to do their Federal duty, that they 
were, indeed, subject to kind of partisan concerns, and 
Madison's hope--and maybe he is wrong about this--was the idea 
that, in fact, if you had large electoral districts, you might 
get less partisan politics.
    Ms. Leger Fernandez. Thank you, Professor.
    I wanted to get to at least one other question, and it 
strikes me that, unlike rural Wisconsin, where we heard earlier 
today that everyone has good access to basic infrastructure, I 
represent a rural district, and many of the rural areas I 
represent don't have such infrastructure. And in high poverty 
areas of my rural district, especially in Tribal areas, access 
to fancy phones is actually hard.
    In response to State laws that were hindering Native 
Americans' access to the ballot, H.R. 1 has important 
provisions for Native Americans voting. It also includes 
provisions to ensure that States receive HAVA funds so that we 
have fair and equitable ratings.
    Professor Tolson, what is your response to those who 
suggest that these and other provisions in H.R. 1 are 
unconstitutional?
    Ms. Tolson. They are not, you know, and part of it is that, 
you know, the text mean what it says. And this is something 
that has come out over the course of this hearing. The text is, 
although States are mentioned first, that is because States get 
a first crack at setting the times, place, and manner of 
Federal elections. It is not because States are the primary 
focus of the Elections Clause.
    In fact, if you look at the history as recounted by 
Professor Rakove, brilliantly I might add, you know, consider 
the fact that there was one consideration on the table for the 
general veto of all State laws by the national government 
versus a more limited veto in the context of the Elections 
Clause. I think the fact that the general veto was rejected and 
they accepted the limited veto in the context of the Elections 
Clause really does illustrate the distrust that the national 
government had with respect to State legislatures over this 
issue. In short, the Elections Clause provides broad authority 
for all of H.R. 1.
    And let me just make one other point. There has been a lot 
of talk about political culture, but making voting harder is 
not a political culture, right? Partisan gerrymandering is not 
a political culture, right? So we can respect the ability of 
States to set time, place, and manner as a first instance, but 
where States are abusing that authority, Congress has power to 
step in.
    Ms. Leger Fernandez. Thank you so much.
    My time has expired.
    The Chairperson. The gentlelady's time has expired.
    I see the Ranking Member, Mr. Davis, has joined us.
    Mr. Davis, you are now recognized for five minutes.
    Mr. Davis. Well, thank you, Madam Chairperson. It is great 
to see the witnesses. Sorry I haven't been able to be on the 
entire time, but we have been keeping tabs on the testimony. Of 
course, we are keeping an eye on Mr. Steil. I don't want a coup 
d'etat on the minority side, but it is great to see everybody. 
I can't wait to see you all in person again.
    I want to start my questions with my good friend Mr. Adams. 
Mr. Secretary, I do want to say thank you for coming here 
today. It was great to see you a few weeks ago in Washington. 
As the chief election official for the State of Kentucky, do 
you believe the Federal Government should mandate how States 
and jurisdictions administer elections?
    Mr. Adams. Well, I certainly don't have a problem with the 
Voting Rights Act and some basic provisions, HAVA, the NVRA. 
There is some good stuff that Congress has done in the past. 
What I don't want to have is a micromanagement of our election 
systems because States are just simply different. That is my 
first argument.
    My second argument is, with respect to Congress, I think we 
do a better job at the State level of finding space across the 
aisle to actually work with each other and get things done. It 
is a less toxic atmosphere than what you have in Washington.
    Mr. Davis. Well, I mean, it is pretty easy to get a less 
toxic atmosphere anywhere compared to Washington, D.C. But, you 
know, if you look at the last two election cycles, Mr. 
Secretary, we saw record midterm turnout in 2018 and record 
Presidential year turnout in 2020, and the Democrats on this 
Committee have not been able to produce a single voter whose 
vote was suppressed? Of course, even Stacey Abrams has 
testified before this Committee that voter turnout really 
doesn't matter. So can you explain that one to me?
    Mr. Adams. I am sorry. What was the last part of your 
question?
    Mr. Davis. I said even Stacey Abrams testified before this 
Committee that voter turnout, that it doesn't really matter. So 
I am at a loss. Can you explain how that makes sense when we 
have had record turnout, have not been able to see--this 
Committee has not been able to put forth a single voter whose 
vote was suppressed, and their leading voice on voter 
suppression, Ms. Abrams, said that voter turnout doesn't 
matter. I think it does. Do you?
    Mr. Adams. Well, sure, I think it does. I am really proud 
that in our election last year, in the midst of a pandemic, we 
had the highest turnout we ever had; over two million voters 
voted. And I am proud of it. I took some hits from my side of 
the aisle for some decisions I made to make voting easier, but 
we did it in a way that protected the security of our 
elections, its integrity, and we made voting easier. We 
expanded early voting. We found that about seven out of ten 
voters even in a pandemic preferred to vote in person instead 
of by absentee.
    Again, I don't have a problem with absentee voting, but I 
think we should permit the States to respect the wishes of 
their constituencies and come up with a model that works for 
them.
    Mr. Davis. Well, did any of these changes you made, like 
voter ID, impact voter turnout?
    Mr. Adams. Well, interestingly, the first laws that I got 
passed was the photo ID to vote law. That was an issue that I 
ran on, and there were Chicken Little concerns about the sky 
falling and so forth, but we didn't find that that 
disenfranchised anybody. We had, again, record turnout 
notwithstanding that.
    Now to be clear, our voter ID law was very humanely 
drafted. We bent over backwards to sit down with interest 
groups on both sides to make sure that we didn't have anything 
in there that would unduly prevent anyone from voting. So, we 
were very humane in how we did it.
    But the fact is we implemented in a pandemic even and we 
still managed to ensure people got to vote, but we verified who 
they were first.
    Mr. Davis. Well, you guys had to work with local election 
officials on these reforms prior to enactment, and I know you 
offered vote by mail in 2020. Can you tell us briefly how did 
you work with the local election officials to get these reforms 
that many of my colleagues on this Committee may think are 
impossible to implement and how did your vote-by-mail process 
impact in-person voting in Kentucky in 2020?
    Mr. Adams. Well, I think it is important that election 
administrators be at the table, at the center of the table in 
devising election rules. These things shouldn't be written up 
by a caucus or a think tank; they should be done with election 
administrators at the table who are less ideological on these 
things or more practical. We have to engage in the customer 
service business and that is helping people vote.
    So, in our State, we found that democratic county clerks, 
urban county clerks didn't like relying on mail-based voting as 
the primary method. They found that their constituents 
preferred voting in person where possible. Obviously, if you 
have an age or disability and you need to vote absentee, we 
respect that. We allow for that. It is actually a right in our 
State constitution, but all of that said, we found that the way 
that most Democrats wanted to vote, most Republicans wanted to 
vote was in person. So the question was, how do we achieve 
that? And to do so, we expanded early voting for the first time 
in our history.
    Mr. Davis. Well, thank you very much to all the witnesses. 
I ran out of time talking to you, Mr. Secretary, so I didn't 
get a chance to ask questions of the others. I appreciate the 
opportunity, Madam Chairperson. I am going to have to jump off, 
so thanks, again, everyone.
    The Chairperson. The Ranking Member yields back.
    And I now recognize myself for a few questions.
    Dean Tokaji, it has been alleged that, if Congress 
exercises its jurisdiction in the Elections Clause, it would 
constitute constitutional problems of anticommandeering, and 
specifically I am interested in the redistricting provisions 
and whether the court has really addressed this issue per se, 
for example, in the Rucho v. Common Cause case.
    Can you address that?
    Mr. Tokaji. Yes. Thank you for that question.
    And, in fact, in the Rucho decision, which Committee 
members will recall, rejected a constitutional challenge to 
partisan gerrymandering. The courts reaffirmed Congress' broad 
power to regulate congressional elections, specifically 
including redistricting. The Court referenced favorably the 
Apportionment Act of 1842, which was the first exercise of 
Congress' power over the process of drawing congressional 
districts and the congressional representation process, and 
went on to explain that Congress specifically does have the 
power to make laws regarding congressional districting.
    So there wasn't really much question about Congress' power 
to regulate congressional reapportionment or redistricting 
before Rucho, but if there ever was, Rucho definitively 
resolves that. There is simply no doubt that Congress, under 
the Elections Clause, has the ultimate in power over the rules 
regarding congressional districting.
    The Chairperson. Well, let me ask you, Professor Rakove, 
why were the Framers concerned, in particular, about State 
lawmakers drawing district lines?
    Mr. Rakove. I think the best answer really involves 
reconstructing the political adversary of the 1780s. 
Essentially, it is a function of the fact that the first--our 
first system of American Federalism under the Articles of 
Confederation allowed Congress to recommend to the States what 
needed to be done for national purposes. Congress would pass 
requisitions, resolutions, recommendations. It is basically a 
system of Federalism based upon the voluntary compliance of the 
States with, you know, decisions made by the Continental 
Congress. It was the criticism of what Madison would call the 
vices of that system, its recurring tendencies to break down, 
that, in fact, represent a fundamental decision that for the 
national government to work, it had to be competent to enact, 
execute, and adjudicate its own laws.
    Now elections represented, you know, kind of more 
complicated--because you are trying to elect both local, State, 
and Federal officials, but I think my general argument that 
general failure of the States to fulfill their Federal duties 
was the entire pretext for setting up a bicameral national 
legislature that would act legally. There is interesting 
comparison which I think Congresswoman Fernandez made, between, 
you know, the time, place, and manner clause and the ability of 
Congress by law to override, and you know, Madison's idea of 
giving Congress, you know, a negative on State laws, when, in 
effect, you know, the Article I, Section 4, is in its own way a 
version of Madison's negative on State laws. And, I think, the 
point I was trying to make is it has both negative and positive 
connotations; that is to say, you may see, you know, 
distortions being committed at the State level, you know, 
including kind of pre-Baker v. Carr issues of malapportionment 
on the one hand, or you may come up with better ideas how 
Representatives would be elected, which is what happened in 
1842.
    The Chairperson. Let me ask you this: Madison, as you noted 
in your testimony, warned at the Constitutional Convention that 
States might try to manipulate election laws for partisan gain. 
Do you see any parallels between that worry at that time and 
current events?
    Mr. Rakove. Just randomly, yeah, obviously, I do. I mean, 
as you know, Congresswoman, I am, first and foremost, an 18th 
century guy, but I do read the newspapers fairly regularly. So, 
yeah, there is this whole slew of legislation out there whose 
consequences we are waiting to see.
    If you ran--I will speak for Madison, since I spent almost 
every day thinking about him--if you ran this by Madison, he 
would not be surprised to see this. It is consistent with his 
analysis of what was wrong with State politics or worse, 
specifically, why you are more likely to get the wrong kind of 
factuals at the State level than hopefully you would at the 
national level. It fits within a Madisonian aegis of rubric 
very neatly.
    The Chairperson. I thank you very much. My time is expired 
and the time of all Members has expired. I would just like to 
note as we close that I, very rarely, had concern about local 
election officials. Our concern has been with partisan 
legislative bodies that are enacting legislation that governs 
those actions.
    Before we conclude, with unanimous consent, we will add the 
following items to the record: Federalist Papers Nos. 59, 60, 
and 61; the Constitutional Authority Statement for H.R. 6882, 
of the 116th Congress; the Constitutional Authority Statement 
for H.R. 3412, in the 116th Congress; the Constitutional 
Authority Statement for H.R. 7905, from the 116th Congress; 
several Law Review articles discussing the breadth and scope of 
the Elections Clause.
    And hearing no objection, those materials will be made part 
of the record.
    The Chairperson. As has been noted, Members may have 
additional questions for each of our witnesses. If so, we will 
submit them to you in writing, and we request that you would 
answer them if you are able to. The record will be open to 
receive the answers to those questions.
    I want to thank this panel for outstanding testimony today. 
Very enlightening, very smart, a real contribution to our 
understanding of the Constitution, and we thank you.
    And, without objection, then, the Committee on House 
Administration will stand adjourned.
    [Whereupon, at 2:29 p.m., the Committee was adjourned.]
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