National Review: Rand Paul Does Respect the Constitution (In the News)

By Bradley A. Smith

It is true that the Supreme Court has held, in Richardson v. Ramirez, that states may disenfranchise felons. In recognition of that decision, and the principles of federalism, Senator Paul proposes only to set standards for federal elections — that is, Congress and the presidency — and not state elections. The authority for Congress to set voting standards in federal elections arguably comes from Article I, Section 4, of the Constitution, which provides that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

Roger argues that this congressional power does not extend to determining who is eligible to vote, as opposed to how, where, and when voting should take place. This is certainly a reasonable argument, buttressed by language in the Supreme Court’s decision last term in Arizona v. Inter-Tribal Council of Arizona, a case dealing with Arizona’s request for a waiver from certain federal registration requirements under the Help America Vote Act. In Inter-Tribal, the court wrote, “Arizona is correct that the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them.”

Case closed? Not quite. Inter-Tribal notwithstanding, the Supreme Court has never overruled Oregon v. Mitchell, a 1970 case in which the Court upheld Congress’s power to legislatively overrule state laws and grant the right to vote in federal elections to 18 to 21 year olds (Not long after, the Constitution was specifically amended to grant the vote to 18 year olds.) But Mitchell is a fractured decision, with no single theory uniting the five-justice majority.

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