When Congress Can Control Election Machinery

Article I, Section 4, Clause 1 states as follows:

The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but Congress may at any time by Law make or alter such regulations, except as to the Places of chusing Senators.

The Elections Clause is quite clear that the federal government can overrule what the states do with respect to holding elections for United States Senators and Representatives. It was understandably the intent of the Framers to give the ultimate veto power to federal authorities. After all, the Founders of this country created a United States of America and elections for Senators and Representatives to the federal Congress, should be “prescribed” by the Congress.

The Elections Clause was specifically endorsed and promulgated by the Founders of this country.

The setting of election procedures is to some extent a shared responsibility.  Congress was concerned, however, about the states engaging in a frolic of their own.  Congress wanted to make sure that its representatives were ultimately controlled, when it came to how they were elected, by Congress itself.

What the Founders were concerned about were states coming up with different rules for Senators and Representatives which might be inconsistent or which might result in a Balkanization of our national government.

It was believed by the authors of the Constitution that Congress should have the power to control elections of its own members so that there would be consistency, rather than predictability in results.

In essence, Congress was given the power to preempt state election procedures. The concern of the new national government was that the states might manipulate or preclude elections for one or another of the bodies of the new Republic.

Specifically at the Constitutional Convention, Governor Morris, of our own beloved Pennsylvania, expressed the angst that, “the States might make false returns and then make no provision for new elections.” It sounds a little bit like Donald Trump’s complaints about the election process.

Alexander Hamilton was author of the Federalist Papers which were instrumental in getting the states to adopt the new Constitution.  He wrote in his typically persuasive terms: “Nothing can be more evident than that an exclusive power of regulating elections for the national government, in the hands of the State Legislatures, would leave the existence of the Union entirely at their mercy.”

In 1842, Congress acted for the first time under the Election Clause. It passed a law requiring the Representatives be elected on a district basis. We take that for granted today, but it was not always the case. Congress wanted to be sure that the election of the lower house, the body that could tax, was uniform throughout the rapidly growing country. It seemed most fair that there be separate districts within the states established in a way that would provide consistency and predictability to the nation.

Congress subsequently added contiguity, compactness, and substantial and equality of population to district and requirements. For a long time, the United States Supreme Court considered the rules of Congress to be a “political thicket.” Finally, in the leading decision of Baker vs. Carr, the United States Supreme Court determined that the districts had to be relatively equal in population and that the courts could enforce that requirement.

Foster vs. Love in 1997 was a United States Supreme Court case affirming a lower court decision based upon the Elections Clause. That ruling held that federal law preempted a Louisiana statute governing congressional elections.  The opinion once again made clear that Congress could, “at any time by Law make or alter such Regulations.”

The Foster decision from the Supreme Court ruled as follows:

The [Elections] Clause is a default provision; it invests the States with responsibility for the mechanics of congressional elections but only so far as Congress declines to pre-empt state legislative choices.

The Elections Clause was said to permit Congress to “override” state enactments by establishing “uniform rules for federal elections, binding on the States.”

The United States Supreme Court in Young vs. Fordice, relied upon the federalization of elections for congressional representatives and senators to protect to the rights of minorities.  The court, in its 1997 decision, examined the National Voter Registration Act of 1993 which required states to use certain federal forms to register voters for federal elections.  The case ruled that forms to register voters for federal elections preempted an Arizona law that imposed an additional evidence-of-citizenship requirement.  Without question, ruled the Court, state law concerning election of federal officials is subject to federal oversight.

Interestingly, the Court also ruled that even in a primary election, since it is an integral method of choosing a Member of Congress, the right to vote in that primary election is subject to Congressional protection.  This includes the opportunity to cast a ballot and to have it counted honestly, said the Court.

Corrupt elections have been a problem in the United States since 1742, even before the United States was formed. There was a time when votes were bought with whiskey. Corruption in many of the big cities such as Chicago, New York, and New Orleans subjected this country to candidates whom the people did not want any part of.  See, Deliver the Vote: A History of Election Fraud, An American Political Tradition, 1742-2004, by Tracey Campbell. It has been believed by the courts that Congress would and should act to ensure free and fair elections and to prevent violence and intimidation from occurring at the polling booth.

Unfortunately, Congress did not act sufficiently to enforce the laws during reconstruction when African Americans, newly freed, were disenfranchised and subjected to a form of re-enslavement.  The stuffing of ballot boxes and fraudulent elections has always been considered to be a Congressional imperative to prevent.

However, the Elections Clause is not without limit.  While it does specify what the states may do and the regulatory control of Congress, the court cannot always be the ultimate arbiter of the dispute between the states and the federal government.

The question now comes down to what Donald Trump is asking in the way of “federalization” and whether it is consistent with the Elections Clause.  The President does not seem to be focused specifically on Congressional protection concerning the election of its own members, but rather whether states are conducting elections appropriately.

The President uses loose language frequently. What he means by “federalization” of elections is unclear. However, there is no doubt that Congress has the right, and perhaps the obligation, to ensure that the states engage in election of federal officials in a way which is consistent, fair, counts every vote, and restricts those votes to those really eligible to vote in United States federal elections.

If Congress can come up with a Bill that meets those goals, it will pass muster in the United States Supreme Court.