Article I, Section 4, Clause 1 — Elections Clause

ArtI.S4.C1.1 Historical Background on Elections Clause

The Elections Clause gives state legislatures authority over Senate and House elections but allows Congress to regulate such elections and thereby override state election laws.¹ The only exception to Congress’s authority over state elections—“the Places of chusing Senators”—became a nullity when the Seventeenth Amendment superseded Article I, Section 3, Clause 1, by providing for Senators to be elected by popular votes rather than selected by state legislatures.² How state and federal regulation of Senate and House elections interplay has been a topic of significant interest throughout the nation’s history.

During the Constitution’s ratification, the proposal to allow Congress to set aside state laws for electing Senators and Representatives was controversial.³ In his Commentaries on the Constitution of the United States, Justice Joseph Story summarized state concerns that were raised during the ratification process. He stated:

Congress might prescribe the times of election so unreasonably, as to prevent the

attendance of the electors; or the place at so inconvenient a distance from the body of

the electors, as to prevent a due exercise of the right of choice. And congress might

contrive the manner of holding elections, so as to exclude all but their own favourites

from office. They might modify the right of election as they please; they might regulate

the number of votes by the quantity of property, without involving any repugnancy to

the constitution.⁴

In contrast to state concern over the ability of Congress to legislate how states would hold congressional elections, Alexander Hamilton, in the Federalist No. 59, reasoned that unless Congress had authority to regulate Senate and House elections, state legislatures might “at any moment annihilate [the U.S. Government], by neglecting to provide for the choice of persons to administer its affairs.”⁵ Noting that the Elections Clause gave state legislatures primary power over Senate and House elections, Hamilton took the position that Congress would likely involve itself in congressional elections only if “extraordinary circumstances might render that interposition necessary to [the U.S. Government’s] safety.”⁶ Echoing Hamilton’s expectation that only “extraordinary circumstances” would involve Congress in regulating House and Senate elections, Justice Story reasoned that, as representatives of states and their people, Members of Congress would be reluctant to impose election laws on objecting states.⁷

ArtI.S4.C1.2 States and Elections Clause

By its terms, Article I, Section 4, Clause 1, referred to as the Elections Clause, contemplates that state legislatures will establish the times, places, and manner of holding elections for the House of Representatives and the Senate, subject to Congress making or altering such state regulations (except as to the place of choosing Senators).¹ The Supreme Court has interpreted the Elections Clause expansively, enabling states “to provide a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns.”² The Court has further recognized the states’ ability to establish sanctions for violating election laws³ as well as authority over recounts⁴ and primaries.⁵ The Elections Clause, however, does not govern voter qualifications, which under Article I, Section 2, Clause 1, and the Seventeenth Amendment must be the same as the “Qualifications requisite for Electors of the most numerous Branch of the State Legislatures.”⁶ Similarly, the authority of states to establish the “Times, Places and Manner of holding Elections for Senators and Representatives” does not include authority to impose additional qualification requirements to be a Member of the House of Representatives or a Senator, which are governed by the Constitution’s Qualification Clauses at Article I, Section 2, Clause 2 for Members of the House and at Article I, Section 3, Clause 3 for the Senate.⁷

State authority to regulate the times, places, and manner of holding congressional elections has been described by the Court as the ability “to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental rights involved.”⁸ The Court has upheld a variety of state laws designed to ensure that elections are fair and honest and orderly.⁹ But the Court distinguished state laws that go beyond “protection of the integrity and regularity of the election process,” and instead operate to disadvantage a particular class of candidates¹⁰ or negate the need for a general election.¹¹ The Court noted that the Elections Clause does not allow states to set term limits, which the Court viewed as “disadvantaging a particular class of candidates and evading the dictates of the Qualifications Clause,”¹² or ballot labels identifying candidates who disregarded voters’ instructions on term limits or declined to pledge support for them.¹³ In its 1995 decision in U.S. Term Limits v. Thornton, the Court explained: “[T]he Framers understood the Elections Clause as a grant of authority to issue procedural regulations, and not as a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints.”¹⁴

The Supreme Court has held that Article I, Section 4, Clause 1, provides for Congress, not the courts, to regulate how states exercise their authority over Senate and House elections,¹⁵ although courts may hear cases concerning claims of one-person, one-vote violations and racial gerrymandering.¹⁶ For example, in its 2019 Rucho v. Common Cause decision, the Court held that partisan gerrymandering claims—claims that one political party has gerrymandered congressional districts to the disadvantage of the other party—are not justiciable by courts because “the only provision in the Constitution [Article I, Section 4, Clause 1] that specifically addresses the matter assigns it to the political branches”¹⁷ and such claims present political questions—“outside the courts’ competence and therefore beyond the courts’ jurisdiction”—that are not for courts to decide.¹⁸ Although noting that the “districting plans at issue here are highly partisan, by any measure,”¹⁹ the Rucho Court observed that partisan gerrymandering claims raise particular problems for courts to adjudicate. First, the Court noted that the Framers had expected partisan interests to inform how states drew district lines.²⁰ Consequently, the Court reasoned that the problem is not whether partisan gerrymandering has occurred but when it has “gone too far.”²¹ Second, the Court observed that there is no obvious standard by which to assess whether a partisan gerrymander has gone too far.²² The Court stated: “The initial difficulty in settling on a ‘clear manageable and politically neutral’ test for fairness is that it is not even clear what fairness looks like in this context. There is a large measure of ‘unfairness’ in any winner-take-all system.”²³ The Court in Rucho further emphasized that it did not condone partisan gerrymanders but that Congress is constitutionally authorized to address the issue.²⁴ Likewise, in Husted v. A. Philip Randolph Institute, the Court upheld a state law providing for removing voters from voting roles based on indicators that they had moved, noting, among other things, that the state law was consistent with federal law and that the Court had “no authority to dismiss the considered judgment of Congress and the Ohio Legislature regarding the probative value of a registrant’s failure to send back a return card.”²⁵

The Court addressed what constitutes regulation by a state “Legislature” for purposes of the Elections Clause in its 2015 decision in Arizona State Legislature v. Arizona Independent Redistricting Commission.²⁶ There, the Court rejected the Arizona legislature’s challenge to the validity of the Arizona Independent Redistricting Commission (AIRC) and AIRC’s 2012 map of congressional districts.²⁷ The Commission had been established by a 2000 ballot initiative, which removed redistricting authority from the legislature and vested it in the AIRC.²⁸ The legislature asserted that this arrangement violated the Elections Clause because the Clause contemplates regulation by a state “Legislature” and “Legislature” means the state’s representative assembly.²⁹

The Court disagreed and held that Arizona’s use of an independent commission to establish congressional districts is permissible because the Elections Clause uses the word “Legislature” to describe “the power that makes laws,” a term that is broad enough to encompass the power provided by the Arizona constitution for the people to make laws through ballot initiatives.³⁰ In so finding, the Court noted that the word “Legislature” has been construed in various ways depending upon the constitutional provision in which it is used, and its meaning depends upon the function that the entity denominated as the “Legislature” is called upon to exercise in a specific context.³¹ Here, in the context of the Elections Clause, the Court found that the function of the “Legislature” was lawmaking and that this function could be performed by the people of Arizona via an initiative consistent with state law.³² The Court also pointed to dictionary definitions from the time of the Framers;³³ the Framers’ intent in adopting the Elections Clause;³⁴ the “harmony” between the initiative process and the Constitution’s “conception of the people as the font of governmental power;”³⁵ and the practical consequences of invalidating the Arizona initiative.³⁶

ArtI.S4.C1.3 Congress and Elections Clause

Known as the Elections Clause, Article I, Section 4, Clause 1 provides for Congress and state legislatures to regulate the “Times, Places and Manner of holding elections for Senators and Representatives.”¹ Under the Elections Clause, each state establishes how it will hold congressional elections, subject to Congress adopting or altering the state requirements (except as to the place of choosing Senators).² The Elections Clause’s “Times, Places and Manner” encompasses “a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns.”³ States and Congress may also establish sanctions for violating election laws⁴ and procedures for recounts⁵ and primaries.⁶ The Elections Clause however, does not permit states or Congress to set voter qualifications for congressional elections, which, under the Constitution, must be the same qualifications necessary to vote for the most numerous branch of the state legislature.⁷ Likewise, the Elections Clause does not allow states or Congress to change the qualifications to be a Member of the House of Representatives or the Senate, which are stipulated at Article I, Section 2, Clause 2 for the House and Article I, Section 3, Clause 3 for the Senate.⁸

By providing Congress power to preempt state election procedures, the Framers sought to prevent states from thwarting the Federal Government’s operation by using state law to manipulate or preclude elections for the House of Representatives.⁹ For example, during the Constitutional Convention Gouverneur Morris of Pennsylvania expressed concern that “the States might make false returns and then make no provision for new elections,”¹⁰ while Alexander Hamilton observed in the Federalist Papers that “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.”¹¹ Despite the Elections Clause providing Congress power to preempt state law governing elections, Congress did not exercise this power until 1842 when it passed a law requiring that Representatives be elected on a district basis.¹² Congress subsequently added contiguity, compactness, and substantial equality of population to districting requirements.¹³

In the Court’s 1997 decision, Foster v. Love, the Supreme Court affirmed a lower court decision that, under the Elections Clause, federal law preempted a Louisiana statute governing congressional elections.¹⁴ The Foster Court noted that while states can prescribe regulations governing the “Times, Places and Manner” of holding elections, “Congress may at any time by Law make or alter such Regulations.”¹⁵ The Court stated:

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. Thus, it is well settled that the Elections Clause

grants Congress ‘the power to override state regulations’ by establishing uniform rules

for federal elections, binding on the States. ‘The regulations made by Congress are

paramount to those made by the State legislature; and if they conflict therewith, the

latter so far as the conflict extends, ceases to be operative.’¹⁶

Under its Elections Clause authority, Congress has passed laws that govern how state election systems may operate.¹⁷ For example, in Arizona v. Inter Tribal Council of Arizona, the Court held that the National Voter Registration Act of 1993, which required states to use a specific federal form to register voters for federal elections, preempted an Arizona law that imposed an additional evidence-of-citizenship requirement.¹⁸ The Arizona Court further noted that state authority to regulate congressional elections is less than its general police powers because the Constitution provides expressly for state law governing elections to be preempted by federal law. The Court stated: “Unlike the States’ ‘historic police powers,’ the States’ role in regulating congressional elections—while weighty and worthy of respect—has always existed subject to the express qualification that ‘it terminates according to federal law.’”¹⁹

The Court has also held that where a primary election is an integral part of choosing a Member of Congress, the right to vote in that primary election is subject to congressional protection²⁰ and includes the opportunity to cast a ballot and to have it counted honestly.²¹ Congress may secure elections from personal violence and intimidation as well as from failures to count ballots lawfully cast²² or the stuffing of ballot boxes with fraudulent ballots.²³ Congress may also enforce election laws by imposing sanctions²⁴ or punish state election officers for violating legal duties relating to congressional elections.²⁵ But the Court has held that bribing voters, although within Congress’s power under other clauses of the Constitution, does not implicate the Elections Clause.²⁶ Finally, the Court has recognized that because the Elections Clause specifically vests Congress and the states with authority over the “Time, Places and Manner” of congressional elections, the Court’s authority over such matters is limited.²⁷