Article I, Section 4, Clause 1:

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

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:

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

Footnotes

1

U.S. Const. art. I, § 4, cl. 1.

2

Id. See Foster v. Love, 522 U.S. 67, 69 (1997) ( “[I]t 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.’” (quoting U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 832–33 (1995))).

3

Smiley v. Holm, 285 U.S. 355, 366 (1932).

4

Id. at 369.

5

Roudebush v. Hartke, 405 U.S. 15, 24–25 (1972).

6

United States v. Classic, 313 U.S. 299, 320 (1941).

7

U.S. Const. art. I, § 2, cl. 1; U.S. Const. amend. XVII. See Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 17 (2013) ( “Prescribing voting qualifications, therefore, ‘forms no part of the power to be conferred upon the national government’ by the Elections Clause, which is ‘expressly restricted to the regulation of the times, the places, and the manner of elections.’” (quoting The Federalist No. 60 (Alexander Hamilton))). See also Oregon v. Mitchell, 400 U.S. 112 (1970).

8

U.S. Const. art. I, § 2, cl. 2; U.S. Const. art. I, § 3, cl. 3. See United States Term Limits v. Thornton, 514 U.S. 779 (1995)

9

United States Term Limits v. Thornton, 514 U.S. 779, 808 (1995).

10

2 The Records of the Federal Convention 241 (Max Farrand ed., 1901).

11

The Federalist No. 59 (Alexander Hamilton). See also Rucho v. Common Cause, No. 18–422, slip op. at 9 (U.S. June 2019) (discussing Congress’s authority under the Commerce Clause).

12

Act of June 25, 1842, ch. 47, 5 Stat. 491. In 1870, Congress passed the first comprehensive federal statute to enforce the Fifteenth Amendment’s guarantee against racial discrimination in voting. The Enforcement Act of 1870, ch. 114, 16 Stat. 140.

13

Under the 1872 Act ( 17 Stat. 28), Congress provided for congressional districts to contain “as nearly as practicable” equal numbers of inhabitants. In 1901 ( 31 Stat. 733), Congress required districts to comprise “compact territory.”

14

Foster v. Love, 522 U.S. 67 (1997).

15

Id. at 69.

16

Id.

17

Rucho v. Common Clause, No. 18–422, slip op. at 30–34 (U.S. June 2019).

18

570 U.S. 1 (2013). Unlike the Arizona law, which required documentary evidence of citizenship, the federal form required only that an applicant wishing to vote in federal elections to swear under penalty of perjury that he or she was a citizen. Id. at 5.

19

Id. (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947); Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 347 (2001)).

20

United States v. Classic, 313 U.S. 299, 315–321 (1941). The authority of Newberry v. United States, 256 U.S. 232 (1921), to the contrary has been vitiated. Cf. United States v. Wurzbach, 280 U.S. 396 (1930).

21

United States v. Mosley, 238 U.S. 383 (1915); United States v. Saylor, 322 U.S. 385, 387 (1944).

22

Ex parte Yarbrough, 110 U.S. 651 (1884); United States v. Mosley, 238 U.S. 383 (1915)

23

United States v. Saylor, 322 U.S. 385 (1944)

24

Ex parte Siebold, 100 U.S. 371, 392 (1880) (holding that Congress’s power under the Elections Clause “is paramount, and may be exercised at any time, and to any extent which it deems expedient; and so far as it is exercised, and no farther, the regulations effected supersede those of the State which are inconsistent therewith.” ); Ex parte Clarke, 100 U.S. 399 (1880); United States v. Gale, 109 U.S. 65 (1883); In re Coy, 127 U.S. 731 (1888).

25

Ex parte Siebold, 100 U.S. 371, 396–97 (1880).

26

United States v. Bathgate, 246 U.S. 220, 225–26 (1918); United States v. Gradwell, 243 U.S. 476, 485 (1917) ( “[T]he policy of Congress for [a] great . . . part of our constitutional life has been . . . to leave the conduct of the election of its members to state laws, administered by state officers, and that whenever it has assumed to regulate such elections it has done so by positive and clear statutes.” ).

27

See, e.g., Husted v. A. Philip Randolph Inst., No. 16-960, slip op. at 25–26 (U.S. June 2018) ( “We have 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 [voter verification] return card.” ).