The Elections Clause is the primary source of constitutional authority to regulate elections for the U.S. House of Representatives and U.S. Senate. The Clause directs and empowers states to determine the “Times, Places, and Manner” of congressional elections, subject to Congress’s authority to “make or alter” state regulations. It grants each level of government the authority to enact a complete code for such elections, including rules concerning public notices, voter registration, voter protection, fraud prevention, vote counting, and determination of election results. Whenever a state enacts a law relating to a congressional election, it is exercising power under the Elections Clause; states do not have any inherent authority to enact such measures.
Although the Elections Clause makes states primarily responsible for regulating congressional elections, it vests ultimate power in Congress. Congress may pass federal laws regulating congressional elections that automatically displace (“preempt”) any contrary state statutes, or enact its own regulations concerning those aspects of elections that states may not have addressed. The Framers of the Constitution were concerned that states might establish unfair election procedures or attempt to undermine the national government by refusing to hold elections for Congress. They empowered Congress to step in and regulate such elections as a self-defense mechanism.
On occasion, Congress has exercised its power to “make or alter” rules concerning congressional elections, and some of its laws lie at the very heart of the modern electoral process. It has established a single national Election Day for congressional elections, and mandated that states with multiple Representatives in the U.S. House divide themselves into congressional districts, rather than electing all of their Representatives at-large. Congress also has enacted statutes limiting the amount of money that people may contribute to candidates for Congress, requiring that people publicly disclose most election-related spending, mandating that voter registration forms be made available at various public offices, and requiring states to ensure the accuracy of their voter registration rolls.
The power of states and Congress to regulate congressional elections under the Elections Clause is subject to express and implicit limits. Fundamentally, neither entity can enact laws under the Elections Clause that violate other constitutional provisions. For example, the Constitution specifies that anyone who is eligible to vote for the larger house of a state legislature may vote for the U.S. House and U.S. Senate as well. The Elections Clause does not permit either the states or Congress to override those provisions by establishing additional qualifications for voting for Congress.
Likewise, the Fourteenth Amendment to the U.S. Constitution protects the fundamental right to vote, barring states from needlessly imposing substantial burdens on the right. When a law specifies that a person must satisfy certain requirements or follow certain procedures in order to vote, a court must determine whether it is a reasonable regulation of the electoral process under the Elections Clause, or instead undermines the right to vote. Laws requiring people to register to vote in advance of elections or mandating that they vote at their assigned polling places are exactly the types of restrictions that the Elections Clause permits.
The Constitution also specifies age, residency, and citizenship requirements to run for the House or Senate. Individuals who satisfy those requirements cannot be prohibited from running for office for failing to satisfy other qualifications. States can, however, impose reasonable ballot access restrictions that a candidate must fulfill in order to appear on the ballot, such as submitting a petition signed by a certain number of registered voters. The Supreme Court has aggressively enforced this restriction by invalidating various attempts to impose term limits on Members of Congress. In U.S. Term Limits, Inc. v. Thornton (1995), the Court held that the Elections Clause did not permit a state to refuse to print on the ballot the names of candidates for the U.S. House who already had served three terms there, or the names of candidates for the U.S. Senate who had already served two terms.
The Supreme Court has explained that the Elections Clause also imposes implicit restrictions on the power to regulate congressional elections. Neither Congress nor the states may attempt to dictate electoral outcomes, or favor or disfavor certain classes of candidates. In Cook v. Gralike (2001), the Court struck down a provision that required election officials to print a special warning on the ballot next to the name of any candidate for Congress who refused to support an amendment to the U.S Constitution that would impose term limits for Congress. The Court explained that the provision exceeded the state’s power under the Elections Clause because it was “plainly designed” to favor candidates who supported term limits, while placing others at a disadvantage.
One unusual feature of the Elections Clause is that it does not confer the power to regulate congressional elections on states as a whole, but rather the “Legislature” of each state. The Supreme Court has construed the term “Legislature” extremely broadly to include any entity or procedure that a state’s constitution permits to exercise lawmaking power. Thus, laws regulating congressional elections may be enacted not only by a state’s actual legislature, but also directly by a state’s voters through the initiative process or public referendum, in states that allow such procedures.
The Court also has held that a legislature may delegate its authority under the Elections Clause to other entities or officials. A few states have chosen to transfer power to draw congressional district lines from their respective legislatures to non-partisan or bipartisan “independent redistricting commissions.” These states believe that such commissions can make the electoral process more fair by preventing voters from being divided into congressional districts in ways that unduly protect existing officeholders (“gerrymandering”).
As this summary shows, congressional elections are conducted under a complicated mix of state and federal laws, reflecting the Elections Clause’s division of authority between state legislatures and Congress.
The power to make the rules governing the electoral process is perhaps the most important power conferred by the Constitution. By drawing congressional district boundaries differently, enhancing or weakening measures to protect the integrity of the electoral process, changing the standards concerning vote counting, or modifying any of dozens of other rules concerning elections, it often is possible to systematically help candidates from one political party over the other. The government officials empowered to determine the rules governing an election therefore can exert a tremendous influence over the election’s outcome!
The Framers of the Constitution sought to preserve the fairness of congressional elections by allowing state legislatures, and ultimately Congress, to regulate them. A majority of the modern Supreme Court, however, does not trust institutional state legislatures to oversee the electoral process. Both legislatures and Congress are comprised of partisan elected representatives who might be tempted to tweak the rules to aid their political allies, rather than promoting the public interest. Thus, in Arizona State Legislature v. Arizona Independent Redistricting Commission (“AIRC”) (2015), by a bare 5-4 majority, the Court decided to ignore the plain meaning of the Elections Clause. It held that the word “Legislature” does not mean what most people would assume; it does not refer to the body in each state comprised of elected officials that periodically convenes to debate and enact laws. Rather, the term refers to any lawmaking process authorized by a state’s constitution, including public referenda and initiatives, in which members of the public vote directly to enact a statute. Moreover, the Court held that a state law may transfer power to regulate congressional elections away from the legislature to other entities such as executive branch officials or independent commissions.
This essay is part of a discussion about the Elections Clause with Franita Tolson, Betty T. Ferguson Professor of Voting Rights, Florida State University College of Law. Read the full discussion here.
These holdings, while well-intentioned, are flatly wrong and directly contradict the plain meaning of the Elections Clause. The Constitution uses the term “Legislature” repeatedly. In every other place where the word appears in the Constitution, it clearly and unambiguously refers exclusively to a state’s institutional legislature, and not to other lawmaking processes such as public votes or referenda. Likewise, the term was used repeatedly throughout the debates over the Constitution to refer exclusively to an institutional legislature. And every single state constitution during the Founding Era that referred to a “Legislature” defined it as a distinct multimember body comprised of representatives.
The AIRC majority chose to ignore the meaning of the term and instead effectively re-wrote the Elections Clause to allow a state to exclude its institutional legislature from regulating congressional elections. Even if the Court were correct to doubt the ability of partisan legislatures to draw congressional districts or determine other election rules fairly, it cannot simply disregard the Constitution’s clear text under the guise of interpretation to reach a “better” result. The Elections Clause is the latest victim of “results-oriented jurisprudence,” which is a fancy label for mangling the Constitution’s meaning to achieve a “good” policy result, regardless of what the Constitution actually says.
In any event, allowing independent commissions to draw congressional district lines may not be much of an improvement over institutional state legislatures. In a legislature, everyone’s partisan incentives and biases are open and overt. So-called independent commissions operate under a veneer of non-partisanship, which often means only that the participants’ partisan preferences remain hidden, far less susceptible to public scrutiny. Most people with enough knowledge about, and interest in, redistricting to work with redistricting commissions are highly likely to have some sort of partisan preferences. Moreover, redistricting is not a science that can be conducted according to abstract principles. Deciding where to divide towns, what communities of interest must be maintained together, and which characteristics of a population are most salient in crafting districts are fundamentally political questions for which objective “right” answers do not exist. Different people reasonably can hold differing political views on these issues. There is no objective standard by which the work of a purportedly nonpartisan commission can be deemed any fairer than a map drawn by a legislature. The nature of the task unavoidably requires repeated exercises of subjective political judgment. An elected partisan legislature is quite likely a far more suitable entity for making such quintessentially partisan decisions than a supposedly technocratic bureaucracy.
The Elections Clause gives the states and the federal government concurrent jurisdiction over congressional elections, granting states the power to set the “Times, Places, and Manner” of these elections, and delegating to Congress the authority to “alter” state regulations or “make” its own. From the Founding until the mid-nineteenth century, Congress used its “make or alter” authority sparingly, leading the regulation of federal elections to become, over time, a government function traditionally left to the states. In the last century-and-a-half, however, Congress became more aggressive in exercising its authority under the Clause, imposing substantive requirements that states must follow in structuring federal elections. These requirements have included, for example, laying down minimum criteria for the states to follow regarding compactness, contiguity, and single member districting for U.S. House elections; instituting uniform voter registration standards for federal elections through the National Voter Registration Act; and modernizing state voting systems through the Help America Vote Act. Despite the breadth of federal power, Congress rarely invokes the Clause in order to nationalize election administration. Instead, Congress assumes that state law is presumptively valid and will govern the nuts and bolts of federal elections.
The U.S. Supreme Court has recognized that the Elections Clause is unique in how it structures the relationship between the states and the federal government, and these differences extend beyond the Clause’s focus on federal elections. Under the Supremacy Clause, for example, states retain authority over numerous policy areas provided that there is no conflict with federal law. In contrast, the Elections Clause does not require a conflict between state and federal law, and Congress can displace state law at will. In Arizona v. Inter Tribal Council of Arizona (2013), the Supreme Court described Congress’s power to regulate federal elections as “paramount,” noting that it “may be exercised at any time, and to any extent which [Congress] deems expedient.” By giving Congress the ability to veto state regulations or construct its own laws, the Framers created a safeguard against the states’ potential abuse of their authority to regulate federal elections. One such example is Foster v. Love (1997), where the Supreme Court invalidated a Louisiana law that decreed the majority winner of the primary to be the winner of the U.S. House or Senate seat, negating the need for a general election. The Court noted that the Elections Clause “invests the States with responsibility for the mechanics of congressional elections, . . . but only so far as Congress declines to pre-empt state legislative choices . . . ." Federal law, which sets Election Day for House and Senate races, preempted the Louisiana law because the state law determined the winners from the results of the primary election, which was held on a date different from the federally mandated Election Day.
This essay is part of a discussion about the Elections Clause with Michael T. Morley, Assistant Professor of Law, Barry University School of Law. Read the full discussion here.
With few exceptions, however, states retain substantial authority under the Clause to structure federal elections in a manner that is consistent with state law. In Arizona State Legislature v. Arizona Independent Redistricting Commission (“AIRC”) (2015), the Supreme Court emphasized this aspect of state power, reading the term “legislature” in the Clause broadly enough to encompass the ballot initiative process that Arizona’s residents used to delegate the legislature’s redistricting authority to an independent redistricting commission. By making the term “legislature” dependent upon the lawmaking procedures recognized by state law instead of fixed within the text of the Elections Clause, the state, through its legislature and its citizens, retains a default role in determining how and through which body it wants to implement the “Times, Places and Manner” of federal elections. As the constitutional text and history show, the Elections Clause provides a unique organizational structure that gives the states broad power to construct federal elections, but it ultimately delegates final policymaking authority to Congress.
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