The High Cost of Inaction
How SCOTUS and Congressional Dereliction on Election Integrity Threatens the Union
When Benjamin Franklin walked out of the Constitutional Convention in Philadelphia in 1787, he was asked by someone what kind of government we have. Franklin quickly replied with, “a republic if you can keep it.” He understood that this unique form of American government was experimental and may not last the trials that it would face in the coming years. The fragility of the new republic would depend upon holding together the bonds of trust between the states to form a more perfect union. For two decades a famous phrase had rung through the minds of patriots, made famous by John Dickenson in his pre-revolutionary war song, The Liberty Song, “united we stand, divided we fall.” Those words would be challenged on April 12, 1861, when Confederate forces fired on Fort Sumter, beginning the American Civil War. That war cost our nation over 620,000 soldiers’ lives. That was the price paid in blood to maintain the union. May we never see it again.
This article examines the historical significance of election integrity discussions, the arguments from the Constitutional Convention on executive structure and the Elections Clause, and how diverging state election processes—from mail-in voting practices to voter registration policies—are fueling distrust in the electoral system, once again hurling us towards the precipice of a divided union.
The Compromises the Secured the Union
At the Constitutional Convention, delegates debated extensively whether the executive branch should be led by a single leader or a council. James Wilson of Pennsylvania advocated strongly for a singular executive (president), arguing that a single president would ensure accountability and allow for decisive action, particularly during crises. Wilson believed that one leader could deliver the energy and clarity needed for effective governance, as opposed to a council that might diffuse responsibility and hinder action (Farrand, 1911).
However, many delegates feared that a single executive might resemble a monarchy and lead to authoritarianism. Edmund Randolph and George Mason of Virginia voiced concerns that a concentrated executive could amass excessive power and proposed a plural structure or council to serve as a check. They believed that dividing executive authority would guard against any one individual dominating the government.
The framers ultimately reached a compromise: they created a singular executive but included checks and balances to prevent abuses. The Electoral College system emerged from this compromise, granting states a direct role in electing the president to maintain state sovereignty within the federal executive framework. The Electoral College was designed to ensure that both large and small states were fairly represented in choosing the president, allaying fears that larger states might overwhelm smaller ones.
This compromise only worked because the framers believed the integrity of each state’s electoral process would be safeguarded, preventing any state from diminishing another’s electoral influence through manipulation. The Elections Clause in Article I, Section 4, supports this framework by allowing states to regulate the "Times, Places, and Manner" of elections while empowering Congress to intervene when necessary to ensure fair and uniform standards in federal elections.
Alexander Hamilton in Federalist No. 68 emphasized that the process must “afford a moral certainty” that the office would reflect the people's will, highlighting the importance of fair and transparent elections to the new government’s legitimacy (Hamilton, 1788). The Elections Clause further supports this goal by balancing state and federal oversight in election regulation, aiming to build a system resilient to manipulation and protect every state’s influence in choosing the president. Hamilton’s insistence on public trust underscores that without fair elections, the Union’s foundation is at risk—a concern that continues to resonate in current election debates. Furthermore, in Federalist No. 80, Hamilton emphasized the importance of having a central judicial authority with the power to resolve disputes between states which would otherwise escalate into conflict, undermining peace and stability. This was codified in Article III, Section 2 of the Constitution.
Both Congress’ inaction in providing uniformity to election laws and the Supreme Court’s dismissal of cases like Texas v. Pennsylvania, which declined to address claims of election irregularities among states, raises issues that echo these founding debates. The Supreme Court’s refusal to consider states’ concerns of election manipulation and Congress’ failure to address uniformity, weaken the constitutional balance meant to protect the role of each state in the electoral system.
Lack of Uniformity and Distrust in the Electoral System
Since the founding, states have exercised significant control over election practices. Today, however, states have adopted vastly different policies concerning early voting, mail-in ballots, ballot harvesting, voter ID laws, and electronic voting. This lack of uniformity has led to substantial distrust. For example, early voting dates vary widely; some states start weeks before Election Day, while others have stricter windows or limited early voting options. Mail-in voting practices have also become a major point of contention. While some states automatically send ballots to all registered voters, others require an application and specific qualifications. Ballot harvesting, where third parties collect and submit ballots, is legal in some states but heavily restricted or banned in others. These discrepancies lead to allegations that certain voting practices are susceptible to fraud, ultimately casting doubt on the election's overall fairness (Brennan Center for Justice, 2023). Below are some visual examples of just a few major differences between the states:
Figure 1 - Overview of ballot harvesting laws by state in the United States. Source: Ballotpedia.
Figure 2 - Overview of voter identification laws by state in the United States. Source: Ballotpedia.
Figure 3 - Policies on Ballot Drop Box Access Across the U.S. as Defined by State Guidelines." Source: Democracy Maps, Mapping American Policy Research. Accessed October 30, 2024.
The Role of Federal Oversight: Where it can go wrong
The National Voter Registration Act (NVRA) of 1993, while designed to enhance voter accessibility, has introduced significant vulnerabilities to election integrity. The NVRA mandates that states offer voter registration at motor vehicle departments and prohibits removing ineligible voters from rolls within 90 days of an election. This setup creates a 60-day window before elections during which potentially ineligible voters can be added without a way to remove them. Given that 19 states and the District of Columbia allow undocumented immigrants to obtain driver’s licenses, the NVRA facilitates an environment where the eligibility of voters can be challenging to verify, allowing the potential for non-citizen participation. Critics argue that the NVRA should be either repealed or heavily revised, especially considering the high volume of undocumented immigrants and issues related to border security (Brennan Center for Justice, 2023; Cuddihy, 2009).
The Help America Vote Act (HAVA) of 2002 aimed to modernize elections through electronic voting systems, hoping to streamline processes and reduce errors after the contested 2000 election. However, while HAVA reduced some ballot errors, it introduced new cybersecurity vulnerabilities, as electronic systems are susceptible to hacking, tampering, and malfunctions. These vulnerabilities are especially concerning as HAVA did not address foundational issues of election integrity, such as preventing ballot-stuffing and ensuring secure poll books.
Together, the NVRA and HAVA reveal how federal intervention, though well-intentioned, can inadvertently complicate state election processes, creating vulnerabilities and diminishing public trust. These types of problems have often made Congress reluctant to add laws regarding elections. However, if Congress keeps the focus of their election-related legislation within the intent of the elections clause, then the law of unintended consequences can be avoided. To understand the intent one must look at the early writings of Hamilton in Federalist No. 59, where he emphasizes the need for a national standard to ensure the integrity and fairness of elections and in Federalist No. 60 where he argues for the necessity of Congressional oversight to prevent states from manipulating elections for partisan gain.
The Supreme Court’s Dismissals: A Missed Opportunity for Unity
The Supreme Court’s dismissal of Texas v. Pennsylvania was based on jurisdictional grounds, with the Court asserting that Texas lacked standing under Article III since it did not suffer direct harm from other states’ election procedures. Justices Samuel Alito and Clarence Thomas dissented, arguing that the Court should exercise its original jurisdiction in cases involving disputes between states, as the Constitution provides. By refusing to hear the case, the Supreme Court missed an opportunity to address rising concerns over uniform election standards and the potential for inter-state electoral disputes. This decision undermines the purpose of the Elections Clause, which was intended to maintain a cohesive electoral process among states and threatens the unity of the Union. And to assert that Texas or any other state is not harmed by election manipulation in another state completely disregards the spirit of the electoral college in presidential elections by allowing one state to water down the vote of another, by thwarting the will of its own electorate. It most certainly harms the other states.
The Supreme Court also failed to act in New York v. Trump, which challenged the Trump administration’s directive to exclude undocumented immigrants from the apportionment count used for Congressional representation. This lawsuit emerged after a July 2020 presidential memorandum declared that undocumented immigrants should not be counted in the population totals for determining each state’s number of House representatives. The memorandum argued, "Current estimates suggest that one State is home to more than 2.2 million illegal aliens, constituting more than 6 percent of the State’s entire population. Including these illegal aliens in the population of the State for the purpose of apportionment could result in the allocation of two or three more congressional seats than would otherwise be allocated." (Trump White House Archives). A three-judge panel of the U.S. District Court for the Southern District of New York blocked the memorandum, ruling that the directive was unlawful. The case went to the U.S. Supreme Court, which ultimately dismissed the challenge in December 2020, stating it was premature to decide since the census had not yet been completed and the data delivered. The absurdity of counting illegal aliens for apportionment is akin to counting an invading army towards the same. SCOTUS failed in their oath to uphold and defend the constitution in this matter.
Figure 4 - Effect of Unauthorized Migration on State Electoral Power
To restore trust in the electoral system, the Supreme Court must be prepared to mediate state grievances about election laws, thereby reinforcing principles of fairness and transparency in each state’s processes. Some of the significant steps the courts could take to reduce conflicts between the states are the following:
1. Clarify the constitutional boundaries of election administration under the Elections Clause, which grants Congress, and the states shared authority over election regulations (Brennan Center for Justice, 2023). By defining these boundaries, the Court could help states understand permissible variations in election laws while preventing practices that might infringe upon the rights of other states and voters. This action would help ensure a baseline of uniformity and transparency in federal elections, addressing concerns that inconsistent practices could unfairly disadvantage other states or dilute the influence of their electoral decisions.
2. Recognize the importance of hearing cases where states allege that other states’ electoral practices impact federal election legitimacy. By affirming its original jurisdiction in inter-state disputes, the Court would encourage states to seek judicial resolution over legislative or executive measures that could deepen divisions. By taking on such cases, the Court would reinforce its role as a constitutional mediator, providing states with a legal avenue to resolve disputes over election integrity rather than allowing grievances to remain unresolved, potentially damaging public trust (Rossiter, 1961).
The Supreme Court’s proactive engagement is critical to preventing further erosion of trust among states in the Union. West Virginia’s recent House Concurrent Resolution 203, for instance, reflects the growing fear that without judicial intervention, states will be left to manage increasingly divergent election procedures that risk undermining each other’s choices (WV Legislature, 2024). Addressing these grievances would help secure trust in future elections, reinforcing the Court’s role in upholding the Constitution’s vision of a united, fair, and reliable electoral process. Without intervention, the divisions arising from varying election laws could deepen, compromising national stability at a time when unity is paramount (The Intermountain, 2024).
The Need for Congressional Action
To restore confidence in federal elections, Congress has both the constitutional authority and a historical precedent for passing laws to maintain electoral integrity and bring about uniformity. The Elections Clause in Article I, Section 4 of the Constitution grants Congress the power to regulate the “Times, Places, and Manner of holding Elections for Senators and Representatives,” a power that has been interpreted to extend to federal election procedures more broadly (U.S. Const. art. I, § 4). This authority allows Congress to establish standards ensuring elections are fair, transparent, and secure. Over time, Congress has exercised this power to protect electoral integrity through legislation like the Voting Rights Act of 1965, the Help America Vote Act of 2002, and the National Voter Registration Act of 1993, all aimed at providing consistent safeguards for federal elections.
Building on this constitutional foundation, Congress must now prioritize reforms to address current vulnerabilities and restore trust in elections. Key areas for reform include:
Stronger Voter ID and Citizenship Verification
To ensure that only eligible U.S. citizens participate in federal elections, Congress should implement national standards requiring voter identification with proof of citizenship. Alexander Hamilton, in Federalist No. 68, emphasized the importance of a voting system that reflects the will of the people and excludes ineligible participants to maintain election integrity (Hamilton, 1788). Clear standards for voter identification would build public confidence in the eligibility of all voters and reduce concerns over ineligible voting.
Unified Election Dates with Limited Early Voting
By setting uniform federal election dates and limiting early voting periods, Congress can reduce logistical complexities and minimize opportunities for fraud. A shorter, standardized voting window would streamline oversight and reinforce the integrity of election results. This measure aligns with historical standards aimed at reducing opportunities for interference and ensuring consistency across the states.
Limitations on Mass Mail-In Ballots
While mail-in voting is crucial for certain groups, including military personnel and voters with disabilities, Congress could restrict mass mail-in voting to verified needs. Enhanced security for absentee ballots can mitigate risks associated with fraud and ballot manipulation, ensuring that only eligible individuals receive mail-in ballots and that ballots are accurately counted.
Return to Paper Ballots and Hand Counting
Reinstating paper ballots and hand counting at precincts would add transparency and limit tampering, offering a verifiable paper trail to confirm election results. As Hamilton highlighted, election integrity is paramount for public confidence, and a return to hand-counted paper ballots would further safeguard this integrity by providing transparency and verifiable results.
Overhaul of the National Voter Registration Act (NVRA)
Revising or repealing sections of the NVRA to align voter roll maintenance deadlines with the last date for new registrations would prevent ineligible additions just before elections. This change would close gaps that allow unverified names to remain on voter rolls close to Election Day, enhancing overall accuracy and security.
Ban on Unmonitored Drop Boxes
Prohibiting unattended drop boxes, where ballots can be deposited without verification, would help curb risks of ballot-stuffing and other fraudulent activities. Congress can establish rules requiring secure monitoring for drop boxes at voting locations or ban them altogether to prevent abuse.
Harsher Penalties for Voter and Election Fraud
Enforcing stringent penalties for voter and election fraud would deter potential violators. By imposing severe consequences for fraud, Congress would reinforce the importance of election integrity and communicate that violations will not be tolerated.
Strengthening the Civil Rights Act of 1968
Expanding the Civil Rights Act to include severe penalties for destroying voting records would protect the integrity of election data. This expansion should cover both willful and negligent destruction, including digital records and system logs, ensuring that election data is preserved for audits and investigations.
Census Reform for Apportionment Accuracy
Amending the census to either exclude non-citizens from being counted or differentiate citizens from non-citizens in the count to exclude non-citizens from being counted towards apportionment would ensure federal representation accurately reflects the voting population. This approach aligns with Hamilton’s vision for a system that represents the will of the citizenry, particularly for federal elections.
These comprehensive reforms are essential for strengthening election security, protecting electoral integrity, and restoring public trust. With a constitutional mandate to regulate election procedures for federal offices, Congress has the power and responsibility to close vulnerabilities in the current system. Addressing these issues would help ensure the stability of the Union and reinforce the people’s confidence in their government.
Echoes of the Past: Congressional and Judicial Inaction on State Grievances Then and Now
Leading up to the Civil War, both Congress and the Supreme Court failed to address major issues concerning slavery, state’s rights, and secession, which deepened sectional divides and undermined federal authority. Congress struggled to create lasting solutions to these conflicts; attempts like the Crittenden Compromise ultimately failed, leaving Southern states feeling increasingly empowered to act independently of the Union. Meanwhile, the Supreme Court’s decision in Dred Scott v. Sandford expanded the reach of slavery and denied African Americans citizenship, sparking outrage in the North (Farrand, 1911). Furthermore, the Court refrained from addressing the legality of secession, leaving states to interpret their rights independently, which led to the eventual formation of the Confederacy (Rossiter, 1961).
Today, similar patterns of inaction are evident as Congress and the Supreme Court delay responses to pressing state grievances. Issues surrounding election integrity, federal mandates, and state sovereignty remain unresolved, creating significant distrust among states. Just as 19th-century inaction escalated divisions, today’s perceived inaction risks intensifying polarization and weakening the trust between states and the federal government. These parallels highlight the urgent need for decisive federal action to address state concerns and maintain unity in the Union (Brennan Center for Justice, 2023; WV Legislature, 2024).
The Growing Divide: When States Are Left to Fend For Themselves, They Will
West Virginia’s House Concurrent Resolution 203, introduced in October 2024, is a powerful response to the growing sense among certain states that Congress and the U.S. Supreme Court are ignoring their rights and concerns. The resolution states that the West Virginia Legislature will refuse to recognize a presidential election if it believes the election was influenced by illegal or fraudulent practices, specifically citing issues such as foreign interference, domestic manipulation, and unverified voter registrations (WV Legislature, 2024). This action reflects a deeper, pervasive fear that inconsistencies in voting regulations and enforcement are undermining the legitimacy of national elections and threatening to fracture an already polarized nation (The Intermountain, 2024).
This resolution emerges in an era of intense political division, where the stakes of election integrity are seen as existential. By declining to act on cases like Texas v. Pennsylvania—where states questioned the integrity of other states’ election practices, the Supreme Court signaled to many that their grievances could be disregarded, even when they could threaten the Union itself. Congress, similarly, has not addressed these fundamental issues through legislation that would bring greater uniformity and transparency to election laws. Without uniformity, states like West Virginia remain skeptical of practices such as widespread mail-in voting, ballot harvesting, and lack of voter ID requirements in some states (Brennan Center for Justice, 2023; Ballotpedia, 2024). For states like West Virginia, this federal inaction represents a violation of their constitutional right to a fair and unified electoral process.
At a time when trust in federal institutions is already strained, the inaction of Congress and the Supreme Court risks escalating these tensions further, potentially driving states to take more extreme measures. The framers of the U.S. Constitution warned of the dangers of ignoring state concerns, designing a system intended to mediate conflicts between states and the federal government. However, as states like West Virginia contemplate disregarding presidential election results they view as constitutionally questionable, the nation witnesses the potential beginning of a rebellion against federal authority. If these grievances continue to be dismissed, more states may challenge federal election results, creating legal and political confrontations that could destabilize the Union (Rossiter, 1961; Cuddihy, 2009).
In this politically divided era, Congress and the Supreme Court have a duty to bridge these divides. History has shown that unresolved tensions between states and the federal government can lead to division and conflict. Without intervention, the deepening distrust in election processes could propel the country toward a constitutional crisis. Federal institutions must engage with states’ concerns about election integrity, fostering dialogue and reforms that honor the constitutional principles upon which the Union was built (Hamilton, 1788, Federalist No. 68).
Conclusion
History has shown that failure to address foundational grievances can have profound consequences for a nation's stability. The issues facing the United States today—over election integrity, state sovereignty, and the balance of federal and state power—echo those that led to devastating division in the past. The Supreme Court's dismissal of cases like Texas v. Pennsylvania, alongside Congress’s reluctance to create uniform election standards, threatens to further erode trust in our electoral system. Just as Congress and the Court's inaction on states’ rights and slavery hastened the country’s descent into civil conflict in the 19th century, today’s inaction risks intensifying polarization, leaving states questioning the legitimacy of federal authority and one another’s elections.
To ensure the future integrity and unity of the Union, Congress and the Supreme Court must heed the lessons of history. Legislative reforms that establish baseline standards in election laws, clear judicial decisions that protect state interests, and a commitment to transparency are critical. Without these actions, we risk repeating history, as divisions deepen, trust wanes, and states move closer to rejecting federal mandates they view as unjust. Only through decisive, proactive engagement can we safeguard the principles upon which the United States was founded and reaffirm the Union’s commitment to representing all Americans fairly and equally.
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