LegiStorm

Summary:

In the United States, states have primary responsibility for the administration of federal elections. The federal government, however, has significant authority to determine how these elections are run, and may direct states to implement such federal regulations as the federal government provides. This authority can extend to registration, voting, reporting of results, or even more fundamental aspects of the election process such as redistricting. This report focuses on Congress's constitutional authority to regulate how states administer elections. Congress's authority to regulate a particular type of election may vary depending on whether that election is for the Presidency, the House, the Senate, or for state and local positions. Further, there may be variations in what aspects of elections are amenable to regulation. Consequently, evaluating Congress's authority to establish election procedures requires an examination of a variety of different proposals and scenarios. Although the Constitution is silent on various aspects of the voting process, it seems to anticipate that states would be primarily responsible for establishing election procedures. Federal authority to regulate federal elections, however, is specifically provided for in the Constitution. There are two main provisions at issue—Article I, Section 4, cl. 1, which provides Congress the authority to set the "Times, Places and Manner" of congressional elections, and Article II, Section 1, cl. 4, which provides that Congress may designate the "Time" for the choosing of Presidential Electors. Congress's power is broadest in the case of House elections, which have historically always been decided by a system of popular voting. Congressional power over Senate elections, while almost as broad as it is for House elections, contains one textual exception—that Congress may not regulate "the Places of chusing Senators." On the other hand, the power of Congress to regulate presidential elections is not as clearly established as the power over House and Senate elections. As noted above, the text of the Constitution provides Congress only the limited power to designate the "Time" of the choosing of Presidential Electors. It does appear that Congress's regulatory authority over presidential elections is more extensive than might appear based on the text of Article II, Section 1, cl. 4. How much more extensive, however, remains unclear. There are also a variety of other constitutional provisions that provide Congress the power to regulate all elections. This includes Congress's authority under the Civil War Amendments—Thirteenth, Fourteenth, and Fifteenth—and the Nineteenth, Twenty-fourth, and the Twenty-sixth Amendments, which provide Congress the power to prevent various types of discrimination in access to voting. Further, to the extent that there are gaps in Congress's power to regulate federal, state, or local elections, Congress might use the Spending Clause to condition the receipt of federal monies upon compliance with federal requirements. This power would extend to nonfederal elections, over which Congress has little textual authority. It should be further noted that legislation in this area may require state agencies to implement federal election mandates. Such mandates, however, do not appear to run afoul of the "anti-commandeering" requirements of the Tenth Amendment, as the Constitution appears to contemplate that states will bear the burden of administering federal election regulations.