States and the 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.

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 Election 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 2, Clause 3.7

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 Inst., 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

1: U.S. Const. art. I, § 4, cl. 1. 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))).
2: Smiley v. Holm, 285 U.S. 355, 366 (1932)
3: Id. at 369.
4: Roudebush v. Hartke, 405 U.S. 15, 24, 25 (1972).
5: United States v. Classic, 313 U.S. 299, 320 (1941).
6: U.S. Const. art. I, § 2, cl. 1; U.S. Const. amend. XVII. See also 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))).
7: 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)
8: Smiley v. Holm, 285 U.S. 355, 366 (1932).
9: See, e.g., Storer v. Brown, 415 U.S. 724 (1974) (restrictions on independent candidacies requiring early commitment prior to party primaries); Roudebush v. Hartke, 405 U.S. 15, 25 (1972) (recount for Senatorial election); Munro v. Socialist Workers Party, 479 U.S. 189 (1986) (requirement that minor party candidate demonstrate substantial support—1% of votes cast in the primary election—before being placed on ballot for general election). The Court, however, has held that courts should not modify election rules if the election is imminent and “'[n]o bright line separates permissible election-related regulation from unconstitutional infringements.’” Purcell v. Gonzalez, 549 U.S. 1, 5 (2006) (per curiam) (quoting Timmons v. Twin Cities Area New Party, 520 U.S. 351, 359 (1997)). In Purcell v. Gonzalez, the Court observed that “the imminence of the election and the inadequate time to resolve the factual disputes” required the Court to “of necessity allow the election to proceed without an injunction suspending the voter identification rules.” Purcell, 549 U.S. at 5–6. See also Republican Nat’l Comm. v. Democratic Nat’l Comm., No. 19A1016, slip op. (U.S. Apr. 2020) (per curiam) (noting that “lower federal courts should ordinarily not alter the election rules on the eve of the election” ) (citing Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam); Frank v. Walker, 574 U.S. 929 (2014); Veasey v. Perry, 574 U.S. 951 (2014)).
10: U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 835 (1995)
11: Foster v. Love, 522 U.S. 67, 69 (1997) (explaining that the Elections Clause “is a default provision; it invests the State with responsibility for the mechanics of congressional elections, but only so far as Congress declines to preempt state legislative choices” ); see id. at 74 (holding that a Louisiana statute that deemed the winner of the primary to be the winner of the general election void and preempted by federal law which set the date of the election for federal offices).
12: U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 832 (1995) ( “Petitioners make the related argument that Amendment 73 merely regulates the “Manner” of elections and that the amendment is therefore a permissible exercise of state power under Article I, Section 4, Clause 1 (the Elections Clause) to regulate the “Times, Places and Manner” of elections. We cannot agree.” ).
13: Cook v. Gralike, 531 U.S. 510 (2001).
14: Thornton, 514 U.S. at 833–34. See also Burdick v. Takushi, 504 U.S. 428, 433 (1992) (states have an interest in “seeking to assure that elections are operated equitably and efficiently” ); Tashjian v. Republican Party of Conn., 479 U.S. 208, 217 (1986) ( “the power to regulate the time, place, and manner of elections does not justify, without more, the abridgment of fundamental rights.” ); Anderson v. Celebrezze, 460 U.S. 780, 788 n.9 (1983) (states may adopt “generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself.” ).
15: Rucho v. Common Cause, No. 18-422, slip op. (U.S. June 2019). See also Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1 (2013); Ex parte Siebold, 100 U.S. 371, 392 (1880) ( “The power of Congress . . . is paramount, and may be exercised at any time, and to any extent which it deems expedient.” ).
16: Shaw v. Reno, 509 U.S. 630 (1993); see also Wesberry v. Sanders, 376 U.S. 1 (1964); Wright v. Rockefeller, 376 U.S. 52 (1964); Baker v. Carr, 369 U.S. 186 (1962); Gomillion v. Lightfoot, 364 U.S. 339 (1960); Colegrove v. Green, 328 U.S. 549 (1946); Wood v. Broom, 287 U.S. 1 (1932).
17: Rucho v. Common Cause, No. 18-422, slip op. at 29 (U.S. June 2019).
18: Id. at 7. The Court observed that “[a]mong the political question cases the Court has identified are those that lack ‘judicially discoverable and manageable standards for resolving [them].’” Id. (quoting Baker v. Carr, 369 U.S. 186 (1962)); see also id. ( “This Court’s authority to act . . . ‘is grounded in and limited by the necessity of resolving according to legal principles, a plaintiff’s particular claim of legal right.’ The question here is whether there is an ‘appropriate role for the Federal Judiciary’ in remedying the problem of partisan gerrymandering—whether such claims are claims of legal right, resolvable according to legal principles, or political questions that must find their resolution elsewhere.” (quoting Gill v. Whitford, No. 16-1161, slip op. at 8, 13 (U.S. June 2018))).
19: Id. at 2.
20: Id. at 12.
21: Id. at 13 (citing Vieth v. Jubelirer, 541 U.S 267, 296 (2004) (plurality opinion)). See also Hunt v. Cromartie, 526 U.S. 541, 555 (1999) ( “Our prior decisions have made clear that a jurisdiction may engage in constitutional political gerrymandering . . . .” ).
22: Id. see also Vieth v. Jubelirer, 541 U.S. 267 (2004); Davis v. Bandemer, 478 U.S. 109 (1986);Gaffney v. Cummings, 412 U.S. 735 (1973)). In Gill v. Whitford, the Court observed that “this Court is not responsible for vindicating generalized partisan preferences. The Court’s constitutionally prescribed role is to vindicate the individual rights of the people appearing before it.” Gill v. Whitford, No. 16-1161, slip op. at 21 (U.S. June 2018).
23: Rucho, slip op. at 17; see also Vieth, 541 U.S. at 291 ( “'Fairness’ does not seem to us a judicially manageable standard. . . . Some criterion more solid and more demonstrably met than [fairness] seems to us necessary to enable the state legislatures to discern the limits of their districting discretion, to meaningfully constrain the discretion of the courts, and to win public acceptance for the courts’ intrusion into a process that is the very foundation of democratic decisionmaking.” ).
24: Rucho, slip op. at 9 ( “Congress has regularly exercised its Elections Clause power, including to address partisan gerrymandering.” ).
25: Husted v. A. Philip Randolph Inst., No. 16-960, slip op. at 25, 26 (U.S. June 11, 2018).
26: No. 13-1314 (2015).
27: Id. at 2–3.
28: Id.
29: Id. at 2.
30: Id. at 18. The Court also found that the use of the commission was permissible under 2 U.S.C. § 2a (c), a statutory provision that the Court construed as safeguarding to “each state full authority to employ in the creation of congressional districts its own laws and regulations.” Id. at 19.
31: Id. at 18.
32: Id. See also Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 568 (1916) (holding that a state’s referendum system to override redistricting legislation “was contained within the legislative power,” rejecting the argument that the referendum was not part of the “Legislature” ).
33: Arizona, No. 13-1314, slip op. at 24 (noting that “dictionaries, even those in circulation during the founding era, capaciously define the word ‘legislature’” to include as “[t]he power that makes laws” and “the Authority of making laws” ).
34: Id. at 25 ( “The dominant purpose of the Elections Clause . . . was to empower Congress to override state election rules, not to restrict the way States enact legislation. . . . [T]he Clause ‘was the Framers’ insurance against the possibility that a State would refuse to provide for the election of representatives to the Federal Congress.’” ).
35: Id. at 30 ( “The Framers may not have imagined the modern initiative process in which the people of a State exercise legislative power coextensive with the authority of an institutional legislature. But the invention of the initiative was in full harmony with the Constitution’s conception of the people as the font of governmental power.” ).
36: Id. at 31, 33 (noting that it would be “perverse” to interpret the term “Legislature” to exclude the initiative, because the initiative is intended to check legislators’ ability to determine the boundaries of the districts in which they run, and that a contrary ruling would invalidate a number of other state provisions regarding initiatives and referendums).