20 Attorneys General Deem H.R. 1 Unconstitutional: It Sets ‘Alarming Mandates’

Indiana's attorney general Todd Rokita speaks after being sworn in during an inaugural ceremony at the Indiana State Museum, Monday, Jan. 11, 2021, in Indianapolis. (AP Photo/Darron Cummings)
AP Photo/Darron Cummings

Twenty attorneys general signed a letter addressed to House and Senate leaders pleading against H.R. 1, which the Democrat-led House passed on party lines late Wednesday evening, deeming it unconstitutional as it sets what they described as “alarming mandates,” leading to the federalization of state elections.

The House passed H.R. 1, of the “For the People Act of 2021,” Wednesday night, earning praise from Democrats across the board. Hours prior to its passage, 20 attorneys general, led by Indiana Attorney General Todd Rokita (R), sent a letter addressed to House Speaker Nancy Pelosi (D-CA), Minority Leader Kevin McCarthy (R-CA), Senate Majority Leader Chuck Schumer (D-NY), and Minority Leader Mitch McConnell (R-KY). H.R. 1 “betrays several Constitutional deficiencies and alarming mandates that, if passed, would federalize state elections and impose burdensome costs and regulations on state and local officials,” they wrote, detailing the Elections Clause of Article I of the Constitution and the Electors Clause of Article II, which gives states the primary role in conducting federal elections for House and Senate, and an even bigger role in presidential elections.

“The Act would invert that constitutional structure, commandeer state resources, confuse and muddle elections procedures, and erode faith in our elections and systems of governance,” the attorneys general wrote, asking lawmakers to consider the measure’s many “vulnerabilities.”

H.R. 1, they continued, “implicates the Electors Clause” by regulating the elections for president and vice president. The state leaders also highlighted the “severe constitutional hurdles” the measure faces due to its “regulation of congressional elections, including by mandating mail-in voting, requiring states to accept late ballots, overriding state voter identification (“ID”) laws, and mandating that states conduct redistricting through unelected commissions.”

The attorneys general identified the measure’s limitations on voter ID laws as, perhaps, the most “egregious” portion of the act, noting that a majority of states have some form of a voter ID law:

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

The state leaders also highlighted the potential issues with nationwide automatic voter registration, limitations on how states manage their voter rolls, and the call for states to “undertake congressional redistricting by way of so-called ‘independent’ commissions.”

Overall, the act “takes a one-sided approach to governing and usurps states’ authority over elections,” the letter read:

With confidence in elections at a record low, the country’s focus should be on building trust in the electoral process. Around the nation, the 2020 general elections generated mass confusion and distrust—problems that the Act would only exacerbate. Should the Act become law, we will seek legal remedies to protect the Constitution, the sovereignty of all states, our elections, and the rights of our citizens.

Signers include the attorney general from several states, including Indiana, Alabama, Arkansas, Florida, Georgia, Idaho, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, and West Virginia.

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