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“Mr. States Rights In A Political Pickle”: How The Constitution May Screw Rand Paul For 2016

Rand Paul has a little-discussed problem. Yes, he’s riding a wave. Yet another new poll brings happy tidings,  putting him at the top of the GOP heap in both Iowa and New Hampshire (although still well behind “undecided”). He keeps doing these clever things that titillate the Beltway sages, like coupling with Democratic Sen. Cory Booker (ooh, he’s black!) on sentencing reform. All this, you know. He’s a shrewdie, we have to give him that.

But here’s what you maybe don’t know. Paul is up for reelection in 2016. One assumes that he would want to hold on to his Senate seat. If he ran for president, he would hardly be the first person hoping to appear on a national ticket while simultaneously seeking reelection, although the other examples from the last 30 years have all been vice-presidential candidates: Paul Ryan in 2012, Joe Biden in 2008, Joe Lieberman in 2000, and… trivia question, who’s the fourth?

For those, it hadn’t been a problem. But it is for Paul, because under Kentucky law, he cannot run for two offices at the same time. The law has been on the books in the Bluegrass State for a long time. Paul quietly asked that it be changed, and the GOP-controlled state senate acquiesced this past session. But the Democrats have the majority in the lower house, and they let the bill expire without voting on it. I would reckon, unless the Kentucky state house’s Democratic majority is possessed of a shockingly benevolent character unlike every other legislative majority I’ve ever encountered, it won’t be rushing to pass it.

Paul has said that he’d just ignore the law.

We should stop and pause to appreciate that: Rand Paul, of all people, arguing that states don’t have the authority to dictate the rules for federal elections. Yes, Mr. States’ Rights insists that this is the province of the federal government!

It gets even better. The tradition that states set the rules of their elections and always have was not handed to us by a bunch of pinko mid-century judges, but lo and behold, by the Framers themselves. I give you Article I, Section 4  of the Constitution: “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.” So not only is Mr. States’ Rights backing the federal jackboot as long as it’s kicking on his behalf, but Mr. Tea Party Strict Constitutionalist is challenging the Constitution!

Here’s what the Supreme Court has had to say on the matter. There are two cases that are most relevant, U.S. Term Limits Inc. v. Thornton  and Cook v. Gralike. In those cases, the court held that Arkansas and Missouri’s respective term-limit laws added extra qualifications to seek office that weren’t found in Article I, Sections 2 and 3 of the Constitution (the sections that state the qualifications for candidates for the House of Representatives and the Senate). That is, the court protected candidates who had served X number of terms and were thus, under those states’ laws, prohibited from seeking office again. You can’t do that, said the court to states; you’re in essence adding an extra-constitutional “qualification” for office (that a candidate can’t have served more than three terms). Sen. Paul can argue that Kentucky’s law imposes an extra-constitutional qualification on him—that if he wants to run for president, the state has added the “qualification” that he not also run for Senate.

I’m no lawyer, but that sounds like a reach to me. A term-limits law is a clear imposition of an added qualification. But a law requiring that a person seek only one office at a time seems to me like a perfectly reasonable thing for a state to decide, under the word “manner” in the relevant constitutional passage, if it wants to. States have had these laws for a long time. Florida has one, too, and Marco Rubio—also up for reelection in 2016 and also considering a White House run—has defended it and said of running for the presidency: “I think, by and large, when you choose to do something as big as that, you’ve really got to be focused on that and not have an exit strategy.”

Paul said in June: “Can you really have equal application of federal law if someone like Paul Ryan or Joe Lieberman can run for two offices, but in Kentucky you would be disallowed? It seems like it might not be equal application of the law to do that. But that means involving a court, and I don’t think we’ve made a decision on that. I think the easier way is to clarify the law.” Touching. I doubt Paul worries too much about the “equal application of federal law” for pregnant women who live in states where they’ve found ways to shut down every federally legal abortion clinic. And of course, historically speaking, there are the black Kentuckians and Southerners generally who weren’t soaking up much equal application of federal law until the passage of the Civil Rights Act that Paul so famously told Rachel Maddow in 2010 he would have opposed.

Paul is going to be in a political pickle over this. Remember, a presidential candidate has never done this in modern history, just vice-presidential ones (trivia answer: Lloyd Bentsen in 1988). Vice president—who really cares. But president? Even if he prevailed in court, can a person really run for president of the United States while also seeking another office? Rubio sounds right here to me. This is the presidency. It just seems cheesy. Plain and simple, Paul should have to choose.

 

By: Michael Tomasky, The Daily Beast, July 18, 2014

July 19, 2014 Posted by | Constitution, Rand Paul, States Rights | , , , , , , | Leave a comment

“Plan B For Voting Rights”: It’s Time For Congress To Use It’s Authority Under The Election Clause

Voting-rights advocates generally don’t look to Justice Antonin Scalia for comfort. During oral arguments earlier this year in Shelby County v. Holder, the case in which the Supreme Court struck down a central part of the Voting Rights Act of 1965, Justice Scalia called the act a “perpetuation of racial entitlement.”

But a growing circle of legal scholars is focusing on a lower-profile ruling — issued one week before the Shelby County decision and written by Justice Scalia — that may point the way to a new approach to protecting voting rights.

The 7-to-2 decision, in Arizona v. Inter Tribal Council of Arizona, struck down an Arizona law requiring anyone who wanted to vote to provide proof of citizenship. It said the state could not impose a rule that was more restrictive than the federal “motor voter” law, which requires only a sworn statement of citizenship by the voter.

Congress passed the motor-voter law under its power to set the “times, places and manner” of federal elections as authorized by Article I, Section 4 of the Constitution, known as the elections clause. The clause is much less well known than, say, the equal protection clause of the 14th Amendment, and yet Congress’s power under it, Justice Scalia wrote, “is paramount, and may be exercised at any time, and to any extent which [Congress] deems expedient.”

“That sort of woke everybody up again,” said Samuel Issacharoff, a professor at New York University School of Law who has studied the elections clause’s possibilities.

The problem, Mr. Issacharoff said, is that voting laws based on intentional racial discrimination, which the Voting Rights Act has been so successful at blocking, are both rarer and harder to identify today. “A lot of the contemporary problems are not well handled through the 50-year-old mechanism of the Voting Rights Act,” he said.

The elections clause, by contrast, does not speak to racial discrimination at all, but addresses the administration of voting rules. Still, in light of the Supreme Court’s ruling in Shelby County, it could have an important role to play. Strong federal laws enacted under the clause could help ensure voting fairness to all voters, especially when a state law appears neutral but has serious partisan or racially discriminatory effects. For instance, a state’s voter ID law might put up hurdles for poor or young voters, who may be disproportionately minority and Democratic, or for elderly voters, who lean Republican.

The elections clause allows Congress to set rules only for federal elections, but those laws almost always guide state election practices, too. For instance, Congressional legislation could pre-empt voter ID laws like Arizona’s or changes to early-voting laws like those attempted in Florida last year.

The bottom line, said Daniel Tokaji, an election law professor at the Moritz College of Law at Ohio State, is that Congress has much more power to legislate under the clause than it has exercised. It could, for example, liberalize voter registration nationwide, which has been shown to lead to higher turnout.

“I think Congress would be foolish not to look at the elections clause,” Mr. Tokaji said. “If they could do it over again, they might have paid more attention to it back in 2006,” when the Voting Rights Act was reauthorized using data that the Supreme Court in the Shelby County case found to be outdated. (Mr. Tokaji argued in an amicus brief that the justices should rely on the elections clause to uphold the Voting Rights Act, but the court did not address the issue in its ruling.)

Given the apparent direction of the court, even the remaining parts of the Voting Rights Act could be vulnerable to constitutional challenges. That makes it all the more timely for Congress to turn to its expansive authority under the elections clause to protect the right to vote.

 

By: Jesse Wegman, The New York Times, August 31, 2013

September 1, 2013 Posted by | Congress, Voting Rights | , , , , , , , | Leave a comment

   

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