Congressional Power to Regulate
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 Congress may at any time make or alter such Regulations, except as to the Place of chusing Senators.
REGULATION BY CONGRESS
By its terms, Art. I, § 4, cl. 1 empowers both Congress and state legislatures to regulate the “times, places and manner of holding elections for Senators and Representatives.” Not until 1842, when it passed a law requiring the election of Representatives by districts,358 did Congress undertake to exercise this power. In subsequent years, Congress expanded on the requirements, successively adding contiguity, compactness, and substantial equality of population to the districting requirements.359 However, no challenge to the seating of Members-elect selected in violation of these requirements was ever successful,360 and Congress deleted the standards from the 1929 apportionment act.361
In 1866, Congress was more successful in legislating to remedy a situation under which deadlocks in state legislatures over the election of Senators were creating vacancies in the office. The act required the two houses of each legislature to meet in joint session on a specified day and to meet every day thereafter until a Senator was selected.362
The first comprehensive federal statute dealing with elections was adopted in 1870 as a means of enforcing the Fifteenth Amendment’s guarantee against racial discrimination in granting suffrage rights.363 Under the Enforcement Act of 1870, and subsequent laws, false registration, bribery, voting without legal right, making false returns of votes cast, interference in any manner with officers of election, and the neglect by any such officer of any duty required of him by state or federal law were made federal offenses.364 Provision was made for the appointment by federal judges of persons to attend at places of registration and at elections with authority to challenge any person proposing to register or vote unlawfully, to witness the counting of votes, and to identify by their signatures the registration of voters and election talley sheets.365 When the Democratic Party regained control of Congress, these pieces of Reconstruction legislation dealing specifically with elections were repealed,366 but other statutes prohibiting interference with civil rights generally were retained and these were used in later years. More recently, Congress has enacted, in 1957, 1960, 1964, 1965, 1968, 1970, 1975, 1980, and 1982, legislation to protect the right to vote in all elections, federal, state, and local, through the assignment of federal registrars and poll watchers, suspension of literacy and other tests, and the broad proscription of intimidation and reprisal, whether with or without state action.367
Another chapter was begun in 1907 when Congress passed the Tillman Act, prohibiting national banks and corporations from making contributions in federal elections.368 The Corrupt Practices Act, first enacted in 1910 and replaced by another law in 1925, extended federal regulation of campaign contributions and expenditures in federal elections,369 and other acts have similarly provided other regulations.370
As noted above, although § 2, cl. 1, of this Article vests in the states the responsibility, now limited, to establish voter qualifications for congressional elections, the Court has held that the right to vote for Members of Congress is derived from the Federal Constitution,371 and that Congress therefore may legislate under this section of the Article to protect the integrity of this right. Congress may protect the right of suffrage against both official and private abridgment.372 Where a primary election is an integral part of the procedure of choice, the right to vote in that primary election is subject to congressional protection.373 The right embraces, of course, the opportunity to cast a ballot and to have it counted honestly.374 Freedom from personal violence and intimidation may be secured.375 The integrity of the process may be safeguarded against a failure to count ballots lawfully cast376 or the dilution of their value by the stuffing of the ballot box with fraudulent ballots.377 But the bribery of voters, although within reach of congressional power under other clauses of the Constitution, has been held not to be an interference with the rights guaranteed by this section to other qualified voters.378
To accomplish the ends under this clause, Congress may adopt the statutes of the states and enforce them by its own sanctions.379 It may punish a state election officer for violating his duty under a state law governing congressional elections.380 It may, in short, use its power under this clause, combined with the Necessary and Proper Clause, to regulate the times, places, and manner of electing Members of Congress so as to fully safeguard the integrity of the process; it may not, however, under this clause, provide different qualifications for electors than those provided by the states.381
REGULATION BY THE STATE LEGISLATURE
By its terms, Article I, Section 4, Clause 1, also contemplates the times, places, and manner of holding elections being “prescribed in each State by the Legislature thereof,” subject to alteration by Congress (except as to the place of choosing Senators). However, the Court did not have occasion to address what constitutes regulation by a state “Legislature” for purposes of the Elections Clause until its 2015 decision in Arizona State Legislature v. Arizona Independent Redistricting Commission.382 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.383 The Commission had been established by a 2000 ballot initiative, which removed redistricting authority from the legislature and vested it in the AIRC.384 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.385
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.386 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.387 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.388 The Court also pointed to dictionary definitions from the time of the Framers;389 the Framers’ intent in adopting the Elections Clause;390 the “harmony” between the initiative process and the Constitution’s “conception of the people as the font of governmental power;”391 and the practical consequences of invalidating the Arizona initiative.392
State authority to regulate the times, places, and manner of holding congressional elections has been described by the Court as “embrac[ing] authority to provide a complete code for congressional elections . . . ; in short, to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental rights involved.”393 The Court has upheld a variety of state laws designed to ensure that elections— including federal elections—are fair and honest and orderly.394 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 candidates.395 Term limits, viewed as serving the dual purposes of “disadvantaging a particular class of candidates and evading the dictates of the Qualifications Clause,” crossed this line,396 as did ballot labels identifying candidates who disregarded voters’ instructions on term limits or declined to pledge support for them.397 “[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.”398
358 5 Stat. 491 (1842). The requirement was omitted in 1850, 9 Stat. 428, but was adopted again in 1862. 12 Stat. 572.
359 The 1872 Act, 17 Stat. 28, provided that districts should contain “as nearly as practicable” equal numbers of inhabitants, a provision thereafter retained. In 1901, 31 Stat. 733, a requirement that districts be composed of “compact territory” was added. These provisions were repeated in the next Act, 37 Stat. 13 (1911), there was no apportionment following the 1920 Census, and the permanent 1929 Act omitted the requirements. 46 Stat. 13. Cf. Wood v. Broom, 287 U.S. 1 (1932).
360 The first challenge was made in 1843. The committee appointed to inquire into the matter divided, the majority resolving that Congress had no power to bind the States in regard to their manner of districting, the minority contending to the contrary. H. Rep. No. 60, 28th Congress, 1st sess. (1843). The basis of the majority view was that while Article I, § 4 might give Congress the power to create the districts itself, the clause did not authorize Congress to tell the state legislatures how to do it if the legislatures were left the task of drawing the lines. L. Schmeckebier, Congressional Apportionment 135–138 (1941). This argument would not appear to be maintainable in light of the language in Ex parte Siebold, 100 U.S. 371, 383–86 (1880).
361 46 Stat. 13 (1929). In 1967, Congress restored the single-member district requirement. 81 Stat. 581, 2 U.S.C. § 2c.
362 14 Stat. 243 (1866). Still another such regulation was the congressional specification of a common day for the election of Representatives in all the states. 17 Stat. 28 (1872), 2 U.S.C. § 7.
363 Article I, § 4, and the Fifteenth Amendment have had quite different applications. The Court insisted that under the latter, while Congress could legislate to protect the suffrage in all elections, it could do so only against state interference based on race, color, or previous condition of servitude, James v. Bowman, 190 U.S. 127 (1903); United States v. Reese, 92 U.S. 214 (1876), whereas under the former it could also legislate against private interference for whatever motive, but only in federal elections. Ex parte Siebold, 100 U.S. 371 (1880); Ex parte Yarbrough, 110 U.S. 651 (1884).
364 The Enforcement Act of May 31, 1870, 16 Stat. 140; The Force Act of February 28, 1871, 16 Stat. 433; The Ku Klux Klan Act of April 20, 1871, 17 Stat. 13. The text of these and other laws and the history of the enactments and subsequent developments are set out in R. Carr, Federal Protection Of Civil Rights: Quest For A Sword (1947).
365 The constitutionality of sections pertaining to federal elections was sustained in Ex parte Siebold, 100 U.S. 371 (1880), and Ex parte Yarbrough, 110 U.S. 651 (1884). The legislation pertaining to all elections was struck down as going beyond Congress’s power to enforce the Fifteenth Amendment. United States v. Reese, 92 U.S. 214 (1876).
366 28 Stat. 144 (1894).
367 Pub. L. 85–315, Part IV, § 131, 71 Stat. 634, 637 (1957); Pub. L. 86–449, Title III, § 301, Title VI, 601, 74 Stat. 86, 88, 90 (1960); Pub. L. 88–352, Title I, § 101, 78 Stat. 241 (1964); Pub. L. 89–110, 79 Stat. 437 (1965); Pub. L. 90–284, Title I, § 101, 82 Stat. 73 (1968); Pub. L. 91–285, 84 Stat. 314 (1970); Pub. L. 94–73, 89 Stat. 400 (1975); Pub. L. 97–205, 96 Stat. 131 (1982). Most of these statutes are codified in 42 U.S.C. §§ 1971 et seq. The penal statutes are in 18 U.S.C. §§ 241–245.
368 Act of January 26, 1907, 34 Stat. 864, repealed by Pub. L. 94–283, Title II, § 201(a), 90 Stat. 496 (1976). Current law on the subject is codified at 2 U.S.C. § 441b.
369 Act of February 28, 1925, 43 Stat. 1070, 2 U.S.C. §§ 241–256. Comprehensive regulation is now provided by the Federal Election Campaign Act of 1971, 86 Stat. 3, and the Federal Election Campaign Act Amendments of 1974, 88 Stat. 1263, as amended, 90 Stat. 475, found in titles 2, 5, 18, and 26 of the U.S. Code. See Buckley v. Valeo, 424 U.S. 1 (1976).
370 E.g., the Hatch Act, relating principally to federal employees and state and local governmental employees engaged in programs at least partially financed with federal funds, 5 U.S.C. §§ 7324–7327.
371 United States v. Classic, 313 U.S. 299, 314–15 (1941), and cases cited.
372 313 U.S. at 315; Buckley v. Valeo, 424 U.S. 1, 13 n.16 (1976).
373 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).
374 United States v. Mosley, 238 U.S. 383 (1915); United States v. Saylor, 322 U.S. 385, 387 (1944).
375 Ex parte Yarbrough, 110 U.S. 651 (1884).
376 United States v. Mosley, 238 U.S. 383 (1915).
377 United States v. Saylor, 322 U.S. 385 (1944).
378 United States v. Bathgate, 246 U.S. 220 (1918); United States v. Gradwell, 243 U.S. 476 (1917).
379 Ex parte Siebold, 100 U.S. 371 (1880); 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).
380 Ex parte Siebold, 100 U.S. 371 (1880).
381 In Oregon v. Mitchell, 400 U.S. 112 (1970), however, Justice Black grounded his vote to uphold the age reduction in federal elections and the presidential voting residency provision sections of the Voting Rights Act Amendments of 1970 on this clause. Id. at 119–35. Four Justices specifically rejected this construction, id. at 209– 12, 288–92, and the other four implicitly rejected it by relying on totally different sections of the Constitution in coming to the same conclusions as did Justice Black.
382 576 U.S. ___, No. 13–1314, slip op. (2015).
383 Id. at 2–3.
385 Id. at 2.
386 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.
387 Id. at 18.
389 Id. 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”).
390 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.’”).
391 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.”).
392 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).
393 Smiley v. Holm, 285 U.S. 355, 366 (1932).
394 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); and 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).
395 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 835 (1995).
396 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).
397 Cook v. Gralike, 531 U.S. 510 (2001).
398 Thornton, 514 U.S. at 833–34.