Elections Clause

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. 

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.   

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.