John R. Lewis Voting Rights Advancement Act of 2021

Floor Speech

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Mr. JORDAN. Madam Speaker, I yield 3 minutes to the gentleman from Illinois (Mr. Rodney Davis), the ranking member of the House Administration Committee.

Mr. RODNEY DAVIS of Illinois. Madam Speaker, recently, another friend of ours and our colleague, Congressman Burgess Owens, who grew up in the Jim Crow South, testified before my committee, and I want to highlight two very important points he made: Not only is our country not facing a new era of Jim Crow voting laws, as many of my Democrat colleagues have falsely claimed, but it is incredibly offensive to lie to the American people to further a political agenda.

Our country has come a long way since the Jim Crow era, and it is in part because of the Voting Rights Act of 1965.

More Americans voted in the last two elections than in any midterm or Presidential election in our Nation's history. This includes historic turnouts among African Americans and other minority voters.

We should celebrate this progress, not ignore it.

Using Georgia as an example, since my friends on the other side of the aisle were so quick to condemn new election integrity laws in this State; in Georgia, which was once covered under the VRA's preclearance formula, African-American turnout in the last election was 64 percent, compared to 27 percent in 1965. And an amazing 95 percent of the total eligible voting-age population in Georgia is registered to vote.

That is incredible. It is easier to vote in Georgia than it is in Democrat-run States like New York and Delaware and even others.

Democrats on the Committee on House Administration held hearing after hearing on election issues where they produced zero evidence of voter suppression, likely due to the fact that voter discrimination and suppression remain against the law in this country.

Yet, the bill before us goes far beyond the original VRA and would subject every State to preclearance, an extraordinary measure established in 1965 to prevent Democratic-led Southern States, with a history of discrimination, from intimidating and preventing African Americans from voting.

If you vote for this legislation, you are voting for a Federal takeover of elections; you are removing the people elected at the State and local level to run elections from making decisions about how elections are run, including voter ID laws, and putting an unaccountable, unelected election czar at the DOJ, the Attorney General, in charge of all election decisions in this country.

Members of this body and the American people should be asking the simple question: If it is easier to vote today than at any time in our history and more Americans are voting than ever before, then why are Democrats going to such extreme measures to ensure a Federal takeover of elections?

I hope my colleagues and the American people will see this bill for what it is, a partisan power grab which circumvents the people to ensure a one-party rule.

I urge a ``no'' vote on the underlying legislation.

Madam Speaker, I include in the Record a report I released as ranking member of the House Administration Committee earlier this month titled ``The Elections Clause: States' Primary Constitutional Authority Over Elections.''

[From Representative Rodney Davis (IL-13), Ranking Member, House of Representatives, Committee on House Administration, Aug. 12, 2021] Report--The Elections Clause: States' Primary Constitutional Authority Over Elections Executive Summary

Republicans believe that every eligible voter who wants to vote must be able to do so, and all lawful votes must be counted according to state law. Through an examination of history, precedent, the Framers' words, debates concerning ratification, the Supreme Court, and the Constitution itself, this document explains the constitutional division of power envisioned by the Framers between the States and the federal government with respect to election administration. Article 1, Section 4 of the Constitution explains that the States have the primary authority over election administration, the ``times, places, and manner of holding elections''. Conversely, the Constitution grants the Congress a purely secondary role to alter or create election laws only in the extreme cases of invasion, legislative neglect, or obstinate refusal to pass election laws. As do other aspects of our federal system, this division of sovereignty continues to serve to protect one of Americans' most precious freedoms, the right to vote.

The Constitution reserves to the States the primary authority to set election legislation and administer elections--the ``times, places, and manner of holding of elections''--and Congress' power in this space is purely secondary to the States' power. Congress' power is to be employed only in the direst of circumstances. Despite Democrats' insistence that Congress' power over elections is unfettered and permits Congress to enact sweeping legislation like H.R. 1, it is simply not true. History, precedent, the Framers' words, debates concerning ratification, the Supreme Court, and the Constitution itself make this exceedingly clear.

The Framing Generation grappled with the failure of the Articles of Confederation, which provided for only a weak national government incapable of preserving the Union. Under the Articles, the States had exclusive authority over federal elections held within their territory; but, given the difficulties the national government had experienced with State cooperation (e.g., the failure of Rhode Island to send delegates to the Confederation Congress), the Federalists, including Alexander Hamilton, were concerned with the possibility that the States, in an effort to destroy the federal government, simply might not hold elections or that an emergency, such as an invasion or insurrection, might prevent the operation of a State's government, leaving the Congress without Members and the federal government unable to respond. Indeed, as counsel for the Democrat Members of our Committee so keenly observed:

For the Founders, particularly during the Federal Constitutional Convention, the primary concern was informing the discussions of federal elections in Article I was the risk of uncooperative states. For example, Alexander Hamilton noted that by providing states the authority to run congressional elections, under Article I, Section 4, ``risk[ed] `leaving the existence of the Union entirely at their mercy.' '' Following the failings of the Articles of Confederation, the Founders looked for processes that would insulate Congress from recalcitrant states. Indeed, ``[t]he dominant purpose of the Elections Clause, the historical record bears out, was to empower Congress to override state election rules, not to restrict the way States enact legislation[,]'' and that ``the Clause `was the Framers' insurance against the possibility that a State would refuse to provide for the election of representatives to the Federal Congress.' ''

Quite plainly, Alexander Hamilton, a leading Federalist and proponent of our Constitution, understood the Elections Clause as serving only as a sort of emergency fail-safe, not as a cudgel used to nationalize our elections process. Writing as Publius to the people of New York, Hamilton further expounds on the correct understanding of the Elections Clause: ``T[he] natural order of the subject leads us to consider, in this place, that provision of the Constitution which authorizes the national legislature to regulate, in the last resort, the election of its own members.''

When questioned at the States' constitutional ratifying conventions with respect to this provision, the Federalists confirmed this understanding of a constitutionally limited, secondary congressional power under Article 1, Section 4:

Maryland: ``[C]onvention delegate James McHenry added that the risk to the federal government [without a fail-safe provision] might not arise from state malice: An insurrection or rebellion might prevent a state legislature from administering an election.''

N. Carolina: ``An occasion may arise when the exercise of this ultimate power of Congress may be necessary . . . if a state should be involved in war, and its legislature could not assemble, (as was the case of South Carolina and occasionally of some other states, during the [Revolutionary] war).''

Pennsylvania: ``Sir, let it be remembered that this power can only operate in a case of necessity, after the factious or listless disposition of a particular state has rendered an interference essential to the salvation of the general government.''

John Jay made similar claims in New York. And, as constitutional scholar Robert Natelson, notes in his invaluable article, The Original Scope of the Congressional Power to Regulate Elections, Alexander Contee Hanson, a member of Congress whose pamphlet supporting the Constitution proved popular, stated flatly that Congress would exercise its times, places, and manner authority only in cases of invasion, legislative neglect or obstinate refusal to pass election laws [providing for the election of Members of Congress], or if a state crafted its election laws with a `sinister purpose' or to injure the general government.''

Cementing his point, Hanson goes further to decree, ``The exercise of this power must at all times be so very invidious, that congress will not venture upon it without some very cogent and substantial reason.'' In Floor debate during the 117th Congress concerning H.R. 1, the Democrats' intended nationalization of elections, Ranking Member Davis argued, as he has many other times, that:

According to Article 1, Section 4 of the Constitution, States have the primary role in establishing ``[t]he Times, Places and Manner of holding Elections for Senators and Representatives.'' Under the Constitution, Congress has a purely secondary role in this space and must restrain itself from acting improperly and unconstitutionally. Federal election legislation should never be the first step and must never impose burdensome, unfunded federal mandates on state and local elections officials. When Congress does speak, it must devote its efforts only to resolving highly significant and substantial deficiencies. State legislatures are the primary venues to correct most issues.

In fact, had the Democrats' view of the Elections Clause been accepted at the time of the Constitution's drafting-- that is, that it offers Congress unfettered power over federal elections--it is likely that the Constitution would not have been ratified or that an amendment to this language would have been required. Indeed, at least seven of the original 13 states--over half and enough to prevent the Constitution from being ratified--expressed specific concerns with the language of the Elections Clause. However, ``[l]eading Federalists . . .'' assured them, ``. . . that, even without amendment, the [Elections] Clause should be construed as limited to emergencies.''

Three states, New York, North Carolina, and Rhode Island, specifically made their ratification contingent on this understanding being made express:

New York: ``Under these impressions and declaring that the rights aforesaid cannot be abridged or violated, and the Explanations aforesaid are consistent with the said Constitution, And in confidence that the Amendments which have been proposed to the said Constitution will receive early and mature Consideration: We the said Delegates, in the Name and in [sic] the behalf of the People of the State of New York Do by these presents Assent to and Ratify the said Constitution. In full Confidence . . . that the Congress will not make or alter any Regulation in this State respecting the times places and manner of holding Elections for Senators or Representatives unless the Legislature of this State shall neglect or refuse to make laws or regulations for the purpose, or from any circumstance be incapable of making the same, and that in those cases such power will only be exercised until the Legislature of this State shall make provision in the Premises[.]''

N. Carolina: ``That Congress shall not alter, modify, or interfere in the times, places, or manner of holding elections for senators and representatives, or either of them, except when the legislature of any state shall neglect, refuse or be disabled by invasion or rebellion, to prescribe the same.''

Rhode Island: ``Under these impressions, and declaring, that the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid, are consistent with the said constitution, and in confidence that the amendments hereafter mentioned, will receive an early and mature consideration, and conformably to the fifth article of said constitution, speedily become a part thereof; We the said delegates, in the name, and in [sic] the behalf of the People, of the State of Rhode-Island and Providence-Plantations, do by these Presents, assent to, and ratify the said Constitution. In full confidence . . . That the Congress will not make or alter any regulation in this State, respecting the times, places and manner of holding elections for senators and representatives, unless the legislature of this state shall neglect, or refuse to make laws or regulations for the purpose, or from any circumstance be incapable of making the same; and that [i]n those cases, such power will only be exercised, until the legislature of this State shall make provision in the Premises[.]

This clearly demonstrates that the Framers designed and the ratifying States understood the Elections Clause to serve solely as a protective backstop to ensure the preservation of the Federal Government, not as a font of limitless power for Congress to wrest control of federal elections from the States.

This understanding was also reinforced by debate during the first Congress that convened under the Constitution. ``During the first session of the First Congress . . . Representative Aedanus Burke unsuccessfully proposed a constitutional amendment to limit the Times, Places and Manner Clause to emergencies.'' But those on both sides of the Burke amendment debate already understood the Elections Clause to limit Federal elections power to emergencies.

For example, the recorded description of opponent Representative Goodhue's comments notes that he believed the Elections Clause as written was intended to prevent ``. . . the State Governments [from] oppos[ing] and thwart[ing] the general one to such a degree as finally to overturn it. Now, to guard against this evil, he wished the Federal Government to possess every power necessary to its existence.'' With any change to the original text therefore unnecessary to achieve Burke's desired goal, Mr. Goodhue voted against the proposed amendment.

Similarly, proponent Representative Smith of South Carolina also believed the original text of the Elections Clause already limited the Federal Government's power over federal elections to emergencies and so thought there would be no harm in supporting an amendment to make that language express. So, even the records of the First Congress reflect a recognition of the emergency nature of congressional power over federal elections.

Similarly, the Supreme Court has supported this understanding. In Smiley v. Holm, the Court held that Article 1, Section 4 of the Constitution reserved to the States the primary

``. . . authority to provide a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns; in short, to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved. And these requirements would be nugatory if they did not have appropriate sanctions in the definition of offenses and punishments. All this is comprised in the subject of ``times, places and manner of holding elections,'' and involves lawmaking in its essential features and most important aspect.''

This holding, of course, is consistent with the understanding of the Elections Clause since the framing of the Constitution. The Smiley Court also held that while Congress maintains the authority to ``. . . supplement these state regulations or [to] substitute its own[ ]'', such authority remains merely ``a general supervisory power over the whole subject.'' More recently, the Court noted in Arizona v. Inter-Tribal Council of Ariz., Inc. that ``[t]his grant of congressional power [that is, the fail-safe provision in the Elections Clause] was the Framers' insurance against the possibility that a State would refuse to provide for the election of representatives to the Federal Congress.'' The Court explained that the Elections Clause ``. . . imposes [upon the States] the duty . . . to prescribe the time, place, and manner of electing Representatives and Senators[.]'' And, while, as the Court noted, ``[t]he power of Congress over the `Times, Places and Manner' of congressional elections `is paramount, and may be exercised at any time, and to any extent which it deems expedient; and so far as it is exercised, and no farther, the regulations effected supersede those of the State which are inconsistent therewith[ ]'', the Inter-Tribal Court explained, quoting extensively from The Federalist no. 59, that it was clear that the congressional fail-safe included in the Elections Clause was intended for the sorts of governmental self- preservation discussed in this Report: ``[E]very government ought to contain in itself the means of its own preservation[.]''; ``[A]n exclusive power of regulating elections for the national government, in the hands of the State legislatures, would leave the existence of the Union entirely at their mercy. They could at any moment annihilate it by neglecting to provide for the choice of persons to administer its affairs.'' Conclusion

It is clear in every respect that the congressional fail- safe described in the Elections Clause vests purely secondary authority over federal elections in the federal legislative branch and that the primary authority rests with the States. Congressional authority is intended to be, and as a matter of constitutional fact is, limited to addressing the worst imaginable issues, such as invasion or other matters that might lead to a State not electing representatives to constitute the two Houses of Congress.'' Our authority has never extended to the day-to-day authority over the ``Times, Places and Manner of Election'' that the Constitution clearly reserves to the States. Unfortunately for Democrats, this clear restriction on congressional authority means that we do not have the power to implement the overwhelming majority--if not the entirety--of their biggest legislative priority, H.R. 1 and related legislation, which would purport to nationalize our elections and centralize their administration in Washington, D.C. Thankfully, the Framers had the foresight to write our Constitution so as to prevent those bad policies from going into effect and preserve the health of our republic.

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Mr. JORDAN. Madam Speaker, I yield myself such time as I may consume.

Thousands of Americans are stranded in Afghanistan, fearing for their lives, and Democrats are focused on passing legislation to make sure States can't require a photo ID to vote.

Thousands of Americans are stranded in Afghanistan, while hundreds of thousands of illegal immigrants cross our southern border every single month. March was the largest month on record for illegal crossings until April; April was the largest month of illegal crossings until May; May was the largest month until June; and June was the largest month until July; and Democrats are focused on passing legislation which says: States who want to go back to the election law they had just a year ago before the virus, you can't do that unless you come get permission from the Department of Justice.

As Mr. Davis said, in 1965, Congress passed the Voting Rights Act, a good piece of legislation that did things that needed to be done, put things in place that needed to be put in place. But we are a long way from that and so much better.

In 2013, in the Shelby County v. Holder Supreme Court decision, the Court said there is no need to continue preclearance requirements. Here's a quote from the Chief Justice: ``The conditions that originally justified'' these measures ``no longer characterize voting in the covered jurisdictions,'' Justice Roberts stated. African-American turnout today exceeds White voter turnout in five of the six originally covered States. During the past election, voter turnout was higher across all racial groups as compared to prior presidential elections.

The United States of America is the greatest country in the history of the world. There is no question that our country has done more to advance the cause of liberty and democracy than any other Nation. But, unfortunately, it seems the Democrats do not want to acknowledge all of that amazing progress that has been made and where we are at today.

H.R. 4 would subject States and localities to the whims of partisan bureaucrats within President Biden's Department of Justice. They get to decide--not States, as our Constitution says--no, no, no, you have to go get permission from the big Federal Government, do what they say, when it comes to your election laws, even if, as I said before, you just want to go back to where you were a year before COVID.

Republican States that Democrats always want to target actually do better than Democrat States, like President Biden's home State of Delaware. But for some reason, you don't hear Democrats raising alarms about Delaware, and you don't see the Biden administration bringing lawsuits against Delaware.

Democrats want to focus on this manufactured crisis, because they have no plans to deal with the real crises that are facing our country: inflation; crime; the border; and, of course, what is going on in Afghanistan as we speak.

Don't be fooled. Today, it is easier to vote than ever in our country. We need to applaud the strides this Nation has taken. We need to embrace the greatness of our country. This bill is not about expanding voting rights; it is about Democrats consolidating their political power. That is why they are focused on this. At a time when there are so many critical issues and crises facing our Nation, they are focused on consolidating their power and, I think, taking it away from the States.

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Mr. JORDAN. Madam Speaker, I yield 2 minutes to the gentleman from California (Mr. Issa).

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Mr. JORDAN. Madam Speaker, I would just remind the gentleman that Democrats have objected to the electors for every Republican President this century--every single one.

I yield 2 minutes to the distinguished gentleman from Wisconsin (Mr. Steil).

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Mr. JORDAN. Madam Speaker, I yield 2 minutes to the distinguished gentleman from Louisiana (Mr. Johnson).

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Mr. JORDAN. Madam Speaker, I yield 2 minutes to the distinguished gentleman from California (Mr. McClintock).

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Mr. JORDAN. Madam Speaker, was it a big lie when the Democrats for 4 years questioned the 2016 election, when in October of 2020 Secretary Clinton said the election was stolen from her in 2016? Was that the big lie that the previous speaker was talking about?

I yield 2 minutes to the distinguished gentleman from Oregon (Mr. Bentz).

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Mr. JORDAN. Madam Speaker, I yield 2 minutes to the gentleman from Texas (Mr. Gohmert).

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Mr. JORDAN. Madam Speaker, I yield 1 minute to the gentleman from Georgia (Mr. Carter).

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Mr. JORDAN. Madam Speaker, the Speaker of the United States House of Representatives just applauded Texas legislators for not showing up to work, for not doing their job. I mean, the things we see today, it is truly amazing to me.

Madam Speaker, I yield the balance of my time to the gentleman from Louisiana (Mr. Johnson).

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