I have become a big fan of federalism. The American political system shares and divides power between our national government in Washington and our 50 state governments. 

Under the Tenth Amendment of the U.S. Constitution, powers that are not specifically delegated to the federal government are reserved to the states. Under this Amendment, Vermont and the other states have authority to manage fundamental issues such as education, health, and public safety. The federal government does have exclusive authority over some areas and states share some authority with the federal government as well. And the Supremacy Clause of the Constitution (Article VI, Clause 2) provides that federal laws take precedence over conflicting state laws.

These basic tenets of federalism and the intersection of these areas of authority are at issue in a bill that has already passed the Senate. The House Judiciary Committee will take it up soon.

Senate Bill 208 is an act relating to state standards for law enforcement identification.  It would require all local, state, and federal law enforcement officers to clearly identify themselves by name or badge number. It also prohibits masks or personal disguises for law enforcement, with exemptions for certain hazardous situations and deployments. 

In my view, Vermont has the authority under the Tenth Amendment to impose the requirements in this bill on not only state and local law enforcement, but also federal officers. Ensuring public safety has historically been and continues to be a function primarily left to the states. The federal government handles national security and interstate crimes, but the day-to-day responsibility for law enforcement falls to state, county, and municipal governments. 

Public safety is enhanced when we ensure transparency in law enforcement. With some limited exceptions, all law enforcement operating in Vermont should identify themselves. With such transparency, we can know if particular law enforcement officers are following the rule of law. The rule of law is a foundation of our democracy.

H.541, which originated in the House Judiciary Committee, grapples with the intersection of two other fundamental principles of our democracy: the right to vote without interference and the right to free political speech.  This bill focuses on election officials, voters, and activity around polling stations. Much of that activity will be political in nature and thus protected by the First Amendment. What was asked of the House Judiciary Committee was to craft a criminal statute, narrowly focused, which provides a way for the State to prosecute those who would interfere with State elections or voters while not infringing or chilling the protected First Amendment right to political speech. H.541 successfully strikes that careful balance.

H.541 provides that no one can intentionally or recklessly intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce others for the reason of obstructing their right to cast a vote or their right to choose who to vote for. It imposes possible criminal penalties for such interference. A leading constitutional scholar and the Deputy Solicitor General of the Vermont Attorney General’s office both testified before the Committee that the bill protects the right to vote in a manner that does not infringe on or chill free speech rights. The Vermont Secretary of State and town clerks also strongly supported the bill. H.541 passed the House on a unanimous voice vote and the Senate will take it up later in the session.

If you have any questions or input on these or other issues before the legislature, contact me at mlalonde@leg.state.vt.us.