Historical Background on Elections Clause

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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.

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authority over state elections— “the Places of chusing Senators” —became a nullity when the Seventeenth Amendment superseded Article I, Section 3, Clause 1, by providing for Senators to be elected by popular votes rather than selected by state legislatures.2 How state and federal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

1: In 1842, Congress passed its first legislation to regulate House and Senate elections by establishing the district system for House elections. Act of June 25, 1842, ch. 47, § 2, 5 Stat. 491. Later legislation provided that Representatives “be elected by districts composed of a compact and contiguous territory and containing as nearly as practicable an equal number of inhabitants.” See, e.g., Act of Aug. 8, 1911, ch. 5, 37 Stat. 13.
2: U.S. Const. amend. XVII. Congress’s authority to regulate elections did not extend to where state legislatures would choose the Senators, because, at that time, the choice of senators belonged solely to the state legislatures. See also Joseph Story, Commentaries on the Constitution of the United States § 826 (1833) ( “The choice is to be made by the state legislature; and it would not be either necessary, or becoming in congress to prescribe the place, where it should sit.” ).
3: The Federalist No. 59 (Alexander Hamilton) ( “This provision has not only been declaimed against by those who condemn the Constitution in the gross, but it has been censured by those who have objected with less latitude and greater moderation; and, in one instance it has been thought exceptionable by a gentleman who has declared himself the advocate of every other part of the system.” ).
4: Joseph Story, Commentaries on the Constitution of the United States § 814 (1833).
5: The Federalist No. 59 (Alexander Hamilton).
6: Id.
7: See Joseph Story, Commentaries on the Constitution of the United States § 818 (1833) ( “Who are to pass the laws for regulating elections? The congress of the United States, composed of a senate chosen by the state legislatures, and of representatives chosen by the people of the states. Can it be imagined, that these persons will combine to defraud their constituents of their rights, or to overthrow the state authorities, or the state influence?” ).