The Current Elections Clause, Article I Section 4, 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.
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.
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, except PACs for now, 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, called Gerrymandering.
It's now time to Change the Election Clause, and take Federal Elections: Presidential; House; and Senate, away from the States, and create a New Professional U.S. Election Assistance Commission (EAC) that will: Create Voting System Guidelines; Operate the Presidential, House, and Senate Elections; were the Members would be Certified, Professional Election Officials, and Poll Site Workers, who will: Run the Elections; Tally the Votes, Announce the Winners, and Certify the Vote.
NYC Wins When Everyone Can Vote! Michael H. Drucker
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