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Monday, September 20, 2021

Professor Franita Tolson testifies before Congress on elections issues

By Diane Krieger

This summer, Professor Franita Tolson testified twice before Congress on elections issues.

In early July, USC Gould election law expert Professor Franita Tolson got a call from the U.S. House Committee on House Administration. Days later, she was testifying on the Elections Clause of Article I, Section 4 of the Constitution.

Tolson, vice dean for faculty and academic affairs at USC Gould, was once again back on the witness list for a July 27 hearing of the U.S. House Committee on the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties. The representatives wanted to pick her brain on congressional authority to enact practice-based coverage, which would codify federal oversight of any changes to certain kinds of election rules.

An earlier invitation to testify had come in 2019. Then, as now, two bills focused on voting rights, access and protections were being advanced in the House — H.R. 1, introduced by Congressman John Sarbanes; and H.R. 4, introduced by Congresswoman Terri Sewell.

The former (also known as the For the People Act) would expand voting rights, stiffen campaign finance laws, re-enfranchise people with felony convictions, ban partisan gerrymandering and create new ethics rules for elected officials.

The latter (also known as the John Lewis Voting Rights Advancement Act) would fix the Voting Rights Act of 1965, key portions of which were struck down in the 2013 Supreme Court decision, Shelby County v. Holder.

Neither bill had cleared the partisan-divided Senate in 2019. And with the filibuster rule in place, Tolson doesn’t expect H.R. 1 or H.R. 4 to make it through this year, either.

“But we have to try,” she says. “These issues are in flux. Our democracy hasn’t reached its full potential. Congress is essentially staking out its position and saying to the Court: ‘This is how we are interpreting our powers. These are the problems as we see them.’ I think that dialogue is important, even if the law doesn't pass.”

One thing that jumped out at the hearings is that members of Congress themselves don’t fully appreciate the power they wield under Article 1.

“You can’t really blame them for not knowing,” she says. “While the academic literature is rich in assessments of how courts regulate democracy and how the Supreme Court, specifically, approaches election law, legal scholars have paid little attention to how Congress can regulate elections.”

Tolson is painstakingly filling that gap. For the past five years, she has been cataloguing historical examples of what she calls “under-enforced constitutional provisions.” The end-product is her forthcoming book, In Congress We Trust? Enforcing Voting Rights from the Founding to the Jim Crow Era (Cambridge University Press). The 300-page volume is set for release in late 2022, just in time for the mid-terms.

In the meantime, Tolson has teamed up with election law scholar Ned Foley of Ohio State University Moritz School of Law to discuss timely matters related to voting rights and the Constitution on their podcast, “Free & Fair with Franita and Foley.”

Watch July 27 Testimony: "The Need to Enhance the Voting Rights Act: Practice-Based Coverage"