Galileo’s Recantation, Watercolor, 42" x 51", Richard J Van Wagoner, 1995, Courtesy of Angela Moore**
What possesses Mike Lee? What about H.R. 1 scares him?
In Senator Mike Lee’s interview on Fox, he announced his disagreement with “every word” of H.R. 1 (also known as the For the People Act), including the “buts,” “ands,” and “thes,” saying the law “is rotten to the core” and was “as if written in hell by the devil himself.” We can trust the judgment of the person who compared Trump to Captain Moroni in Book of Mormon lore. [Google it.] In his constitutional wisdom, Lee declares that laws relating to voter qualification, registration, access, timing, and districting are within the exclusive province of the states, no “ifs,” “ands” or “buts,” rendering H.R. 1 unconstitutional.
Lee’s views have nothing to do with serious constitutional analysis. They are informed by the political reality that leaders in the states Lee likes – the ones that allow a shrinking minority to maintain outsize control in the United States government – can legislate in ways that assure their continued control in perpetuity by, in practical reality, deciding who votes in their states – and, by implication, who doesn’t. It’s none of Congress’s business, according to Lee.
We know why Lee feels this way, because he said the quiet part out loud: “democracy isn’t the objective.”
First, let’s see how this works. Legislatures in certain states – red ones – devise schemes and pass laws to make voting more difficult for certain classes of citizens. The targeted classes are, of course, those who Republican-controlled legislatures have good reason to believe will not vote for them, their party, or their narrowing, deliberately undemocratic, racially divisive platforms.
I wonder who fall into those classes. Post-Reconstruction, such Jim Crow laws included poll taxes, literacy tests, property-ownership requirements, voter registrants’ ability to interpret certain documents, and others. You get the picture.
Where the red states succeed in controlling the electorate and sending Republican senators to Washington, those senators sit as gatekeepers for the judiciary: the senate must approve every federal judge who, someday, may be called upon to rule on the constitutionality of state laws designed to disenfranchise classes of people or congressional efforts to override such laws. With globs of dark money backing candidates who enact disenfranchisement laws at the local level – not to mention the up-ballot beneficiaries of those laws who run for the US senate and, frankly, candidates and nominees for the high court who require senate approval – the near impermeable circle is complete.
A shrinking faction that holds as core philosophy racial exclusion and white superiority hasn’t much to offer a broader, racially diverse, tolerant, and inclusive demographic. So, they are left with controlling who votes as both means and end. This is not cynical. This is carefully crafted Jim Crow 2.0 reality, The Second Great Disenfranchisement, as some have characterized. This is grounded in the Big Lie to use voter integrity as pretext to prevent millions of black, brown, and indigenous Americans from voting.
Second, Lee is correct that Congress has virtually no role in how states assess voter qualification or decide registration, access, timing, and districting – so long as we ignore the Constitution in dissecting his analysis. Under Article 1 Section 4, the Constitution gives state legislatures discretion for the time, place, and manner of holding elections for US representatives and senators but gave Congress the power to “make or alter” those laws. Moreover, the Reconstruction Thirteenth, Fourteenth, and Fifteenth Amendments gave Congress express oversight and transferred exclusive power to the Congress in certain contexts.
Lee knows, but maybe he forgot, the Thirteenth Amendment outlaws slavery in the United States and endows Congress with the power to enforce that provision.
Lee knows, but maybe he forgot, the Fourteenth Amendment granted citizenship and equal civil and legal rights – “privileges and immunities” – to emancipated slaves and African Americans, and constitutionally classifies them within “all persons born or naturalized in the United States. . . .” Lee also knows, but maybe he forgot, the rights, “privileges and immunities” guaranteed by the Fourteenth Amendment expressly apply to the states. Lee knows, but maybe he forgot, “[t]he Congress shall have the power to enforce, by appropriate legislation, the provisions of” the Fourteenth Amendment. [Parenthetically, Lee also knows from his Con. Law II class in law school, but he probably wants to forget, that under the Fourteenth Amendment “no person shall be a Senator . . . who having previously taken an oath, as a member of congress . . . shall have engaged in insurrection or rebellion against the [United States], or given aid or comfort to the enemies thereof.”]
Lee knows, but maybe he forgot, that under the Fifteenth Amendment “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” Lee also knows, but maybe he forgot, the Fifteenth Amendment endows Congress with the “power to enforce this provision by appropriate legislation.”
Lee can put as much lipstick on these pigs as he wants, but any – every – fair minded person knows exactly what’s going on. Lee knows these state laws, to which he gives his full-throated support, disproportionately affect black, brown, and indigenous classes. He knows it because . . . well . . . that’s the point. Congress is well within it constitutional authority and prerogative.
Third, Lee knows, but maybe he forgot, this isn’t the country’s first time crossing that bridge. The ugly history and strife that led to law enforcement’s unprovoked attack on peaceful marchers on the Emund Pettus Bridge in Selma, Alabama was finally enough to convince President Johnson and the Congress to pass the Voting Rights Act of 1965. Tracking closely the language of the Fifteenth Amendment, the Voting Rights Act prohibited race-based hurdles to voting. One of its most effective provisions, known as the preclearance requirement under Section 5, targeted geographic regions Congress believed to have the greatest potential for race-based interference in voting. Under that provision, certain qualifying states were prohibited from making any changes that affected voting until the Attorney General of the United States or a three-judge panel of the Federal District Court in Washington D.C., concluded the changes did not have a discriminatory purpose and would not have a discriminatory effect.
In this elegant passage, the United States Supreme Court upheld that law in 1966:
“Congress had found that case-by-case litigation was inadequate to combat wide-spread and persistent discrimination in voting, because of the inordinate amount of time and energy required to overcome the obstructionist tactics invariably encountered in these lawsuits. After enduring nearly a century of systemic resistance to the Fifteenth Amendment, Congress might well decide to shift the advantage of time and inertia from the perpetrators of the evil to its victims.”
Congress extended and amended certain provisions of the Voting Rights Act several times. In 2013, a conservative majority of the United States Supreme Court concluded that states with histories of voter discrimination were no longer subject to the preclearance requirement. Poof. Gone. No more voter discrimination in the United States.
Not just in the states with histories of racial animus but in red states throughout the country, we are seeing an avalanche of legislation intended to have a discriminatory effect on voting. Why? Because Republicans can’t win on the merits. To win, they must cheat.
Finally, what possesses Lee? What does he fear? To him it’s wildly unfair that the United States Congress is taking measures to prevent states from cheating in elections, from making voting more difficult for the protected classes of people state lawmakers think will not vote for them, from selecting the people who will vote for them to the exclusion of others.
Lee is afraid of free and fair elections.
Lee is afraid of voters.
If the current United States Supreme Court holds any election provisions of the For the People Act unconstitutional, we will know why.
Isn’t it time for Lee’s exorcism from the Senate?
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com. Rob’s second novel, a beautifully written suspense drama that takes place in Utah, Wyoming, and Norway, dropped on November17, 2020 fall. Available on Amazon, Barnes and Noble, Apple Bookstore and your favorite local bookshop, this novel, The Contortionists, which Rob himself narrates for the audio version, is a psychological page-turner about a missing child in a predominantly Mormon community. I have read the novel and listened to the audio version twice. It is a literary masterpiece. The Contortionists, however, is not for the faint of heart.
**Richard J Van Wagoner is my father. His list of honors, awards and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in a number of traveling shows domestically and internationally. My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father's work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father's art reproduced in https://medium.com/@richardvanwagoner and https://lastamendment.com are hers