Order Code RL30747
CRS Report for Congress
Received through the CRS Web
Congressional Authority to Standardize National
Election Procedures
November 27, 2000
Kenneth R. Thomas
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress
Congressional Authority to Standardize National Election
Procedures
Summary
Recent events surrounding the Presidential election have led to increased scrutiny
of voting procedures in the United States. For instance, suggestions have been made
that it may be desirable to establish national standards for issues such as the
administration of voter registration, balloting, tabulating and reporting election
results. This report focuses on the constitutional authority and limitations that might
be relevant to attempts by Congress to standardize these and other election
procedures. A policy evaluation of these different options is, however, beyond the
scope of this report.
The Congress’ authority to regulate a particular election may vary depending on
whether that election is for the Presidency, the House, the Senate, or for state and
local positions. Further, there may be variation in whether a particular aspect of
elections, such as balloting procedures, is amenable to regulation. Consequently,
evaluating the authority to establish uniform election procedures would appear to
require an examination of a variety of different proposals and scenarios.
Although the Constitution is silent on various aspects of the voting process, the
Constitution seems to anticipate that states would be primarily responsible for
establishing election procedures. Federal authority to also regulate federal elections,
however, is specifically provided for in the Constitution. There are two main
provisions at issue – Article I, §4, cl. 1, which provides Congress the authority to set
the “Times, Places and Manner” of congressional elections, and Article II, §1, cl. 4,
which provides that Congress may designate the “Time” for the choosing of
Presidential Electors.
Congress’ power is at its most broad in the case of House elections, which have
historically always been decided by a system of popular voting. Congressional power
over Senate elections, while almost as broad as it is for House elections, contains one
exception - that Congress may not regulate “the Places of chusing Senators.” The
power of Congress to regulate Presidential elections, is not, however, as clearly
established as the power over House and Senate elections. As noted above, the text
of the Constitution provides the Congress only the limited power to designate the
“Time” of the choosing of Presidential Electors. The case law on this issue is,
however, ambiguous, and Congress’s regulatory authority over presidential elections
seems to be more extensive than might appear based on the text of Article II, §1, cl.
4.
The Constitution does not grant the Congress general legislative authority to
regulate the manner and procedures used for elections at the state and local level. The
Congress, however, does have authority under the Civil War Amendments, the 19th,
24th and the 26th Amendments to prevent discrimination in access to voting, and has
exercised that power extensively over state and local elections, as well as federal
elections. The Congress also has expansive authority to spend money for the general
welfare, and allocation of such grant monies could be conditioned on compliance by
state or local officials with national standards for election procedures.
Contents
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Relevant Constitutional Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
House Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Senate Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Presidential Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
State and Local Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Spending Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Congressional Authority to Standardize National
Election Procedures
Background
Recent events surrounding the Presidential election have led to increased scrutiny
of current voting procedures in the United States. For instance, suggestions have been
made that it may be desirable to establish national standards for the administration of
voter registration, balloting, tabulating or reporting election results. This report
focuses on the constitutional authority and limitations that might be relevant to
attempts by Congress to standardize these and other procedures. A policy evaluation
of these and other proposals, however, is beyond the scope of this report.
In evaluating any such proposals, an initial question to be asked is which
elections will be affected. Traditionally, all voting, whether federal, state or local,
occurs in local precinct polling places, and state or local authorities have a significant
role in regulating such voting. Congress, however, also has authority to regulate
elections, and that authority may vary depending on whether the election is for the
Presidency, the House, the Senate, or for state or local offices. Further, there may be
variation in whether a particular aspect of an election, such as balloting procedures,
is amenable to congressional regulation. Consequently, the authority for Congress to
establish standardized election procedures would appear to require an evaluation of
a variety of different proposals and scenarios.
Various proposals have been made regarding standardizing election procedures,
including:
! Establishing uniform procedures for registration of voters
! Standardizing mail-in and absentee balloting
! Establishing a uniform closing time for polls
! Establishing multiple day elections
! Standardizing the number and accessibility of polling stations
! Standardizing ballot design and technology
! Regulating supervision of voting
! Standardization of vote counting, compilation and publication of
results
! Allocating electoral votes within state based on popular votes
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Relevant Constitutional Provisions
The authority of Congress to legislate regarding these various issues in different
types of elections would appear to derive principally from two constitutional
provisions.
Article I, §4, cl. 1
The Times, Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the Legislature therof; but the
Congress may at any time by Law make or alter such Regulations, except as to the
Places of chusing Senators.
Article II, §1, cl. 4
The Congress may determine the Time of chusing the [Presidential] Electors, and
the Day on which they shall give their votes; which Day shall be the same
throughout the United States.
House Elections
Although the Constitution is silent on various aspects of the voting process, the
Constitution seems to anticipate that states would be primarily responsible for
establishing election procedures for congressional elections. Federal authority to
regulate congressional elections is specifically provided for in the Constitution. This
power is at its most broad in the case of House elections, which have historically
always been decided by a system of popular voting.1 As noted above, Article I, §4,
cl. 1 states that the Congress may determine “the Times, Places and Manner” for such
elections. The Supreme Court and lower courts have interpreted the above language
to mean that Congress has extensive power to regulate most elements of a
congressional election.
For instance, the Supreme Court has noted that the right to vote for Members
of Congress is derived from the Constitution and that Congress therefore may
legislate broadly under this provision to protect the integrity of this right.2 The Court
has stated that the authority to regulate the “times, places and manner” of federal
elections:
embrace[s] [the] authority 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
1 U.S. Const. Art. I, §2, cl. 1 states “[t]he House of Representatives shall be composed of
Members chosen every second Year by the People of the several States . . . .”
2 Smiley v. Holm, 285 U.S. 355 (1932) (Congress may delegate authority to draw member
districts to state legislatures, exclusive of governor’s veto). For a history of Congressional
regulation of federal elections, see Congressional Research Service, Constitution of the United
S t a t e s , A n a l y s i s a n d I n t e r p r e t a t i o n 1 1 9 ( 1 9 9 2 ) ( a v a i l a b l e a t
http://www.loc.gov/crs/conan/art01/42.htm).
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of votes, duties of inspectors and canvassers, and making and publication of
election returns; in short, to enact the numerous requirements as to procedure and
safeguards which experience shows are necessary in order to enforce the
fundamental right involved . . . . [Congress] has a general supervisory power over
the whole subject. 3
Consequently, it would appear that the Congress would have broad authority to
implement the various proposals listed above as regards House elections.
Senate Elections
Unlike House elections, Senate elections were, until ratification of the 17th
Amendment, decided not by popular vote, but by a vote of the state legislatures. This
helps explain why congressional power over Senate elections, while almost as broad
as it is for House elections, contains one exception – that Congress may not regulate
“the Places of chusing Senators.” As originally drafted, this language would have
limited the authority of the Congress to designate where state legislatures would meet
for such votes. This deference to the prerogatives of state legislatures would appear
to be obsolete now that all Senate elections are decided by popular vote. However,
nothing in the 17th Amendment explicitly repealed this restriction, and the meaning
of the clause could apply to congressional regulation of establishment of the sites for
popular voting.
Arguably, if Congress attempted to establish legislation regulating where states
must establish polling sites for Senate elections, such legislation might run afoul of
this provision. On the other hand, for practical purposes, most states, if subjected to
federal regulation for House elections establishing the location of polling place, would
be likely to follow such directions for Senate elections occurring at the same time, if
no other reason than administrative convenience.
Presidential Elections
The power of Congress to regulate Presidential elections is not as clearly
established as the power over House and Senate elections. First, the text of the
Constitution provides a more limited power to Congress in these situations. Whereas
3 285 U.S. at 366. See Roudebush v. Hartke, 405 U.S. 15, 24-25 (1972) (state’s authority
to regulate recount of elections); United States v. Gradwell, 243 U.S. 476, 483 (1917) (full
authority over federal election process, from registration to certification of results); United
States v. Mosley, 238 U.S. 383, 386 (1915) (authority to enforce the right to cast ballot and
have ballot counted); In re Coy, 127 U.S. 731, 752 (1888) (authority to regulate conduct at
any election coinciding with federal contest); Ex parte Yarbrough, 110 U.S. 651, 662 (1884)
(authority to make additional laws for free, pure, and safe exercise of right to vote); Ex parte
Clarke, 100 U.S. 399, 404 (1879) (authority to punish state election officers for violation of
state duties vis-a-vis Congressional elections). See also United States v. Simms, 508 F.Supp.
1179, 1183-85 (W.D. La.1979) (criminalizing payments in reference to registration or voting
does not offend Tenth Amendment); Prigmore v. Renfro, 356 F.Supp. 427, 430 (N.D.
Ala.1972) (absentee ballot program upheld as applied to federal elections), aff'd, 410 U.S. 919
(1973); Fowler v. Adams, 315 F.Supp. 592, 594 (M.D. Fla.1970), appeal dismissed, 400
U.S. 986 (1971) (authority to exact 5 percent filing fee for Congressional elections).
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Article I, §4, cl. 1 allows regulation of the “time, place and manner” of congressional
elections, Article II, §1, cl. 4 provides only that Congress may determine the “time”
of choosing presidential electors. Further, despite modern state practice providing for
popular voting for electors, the appointment of presidential electors was historically
and remains today a power of the state legislatures.4 Consequently, principles of
federalism might incline the Supreme Court to find the appointment of presidential
electors less amenable to federal regulation.
The case law on this issue is ambiguous, although Congress’ regulatory authority
over presidential elections does seem to be more extensive than it might appear based
on the text of the Constitution. For instance, the Court has allowed congressional
regulation of political committees which seek to influence Presidential elections,
arguing that such legislation is justified by the need to preserve the integrity of such
elections. In Burroughs v. United States,5 the Supreme Court reasoned that:
[w]hile presidential electors are not officers or agents of the federal
government, they exercise federal functions under, and discharge duties in
virtue of authority conferred by, the Constitution of the United States. The
President is vested with the executive power of the nation. The importance
of his election and the vital character of its relationship to and effect upon the
welfare and safety of the whole people cannot be too strongly stated. To say
that Congress is without power to pass appropriate legislation to safeguard
such an election from the improper use of money to influence the result is to
deny to the nation in a vital particular the power of self protection. Congress,
undoubtedly, possesses that power, as it possesses every other power
essential to preserve the departments and institutions of the general
government from impairment or destruction, whether threatened by force or
by corruption.6
A question arises, however, whether Burroughs, which involves the
regulation of third parties to elections, can be distinguished from the regulation of
states directly regarding their administration of presidential elections. In Burroughs,
the Court distinguished the legislation under consideration (regulation of political
committees) from legislation more directly dealing with state appointment of
electors, noting that:
The congressional act under review seeks to preserve the purity of
presidential and vice presidential elections. Neither in purpose nor in effect
does it interfere with the power of a state to appoint electors or the manner
in which their appointment shall be made. It deals with political committees
organized for the purpose of influencing elections in two or more states, and
4 U.S. Const. Art. II, §1, cl. 2 provides that “Each State shall appoint, in such Manner as the
Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators
and Representatives to which the State may be entitled in the Congress: but no
Senator or Representative, or Person holding an Office of Trust or Profit under the United
States, shall be appointed an Elector.”
5 290 U.S. 534 (1934). See also Buckley v. Valeo, 424 U.S. 1, 67, 91 (1976)(upholding
regulation of campaign financing by the Federal Election Campaign Act of 1971).
6 290 U.S. at 544-545.
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with branches or subsidiaries of national committees, and excludes from its
operation state or local committees. Its operation, therefore, is confined to
situations which, if not beyond the power of the state to deal with at all, are
beyond its power to deal with adequately. It in no sense invades any
exclusive state power.7
Under this language, procedures within the province of states, such as the
allocation of electors by a state, would appear to fall outside of the doctrine
established in Burroughs. Although the Court was not asked to evaluate whether
Congress had the power to establish the manner in which the presidential electors
were appointed, the language above would appear to indicate that the Court in
Burroughs had not intended its decision to extend Congress’ authority to regulate
presidential elections so that it was coextensive with the power to regulate
congressional elections.
Surprisingly, however, three United States Courts of Appeal, relying on
Burroughs, reached precisely the opposite result. In upholding the validity of
congressional regulation of registration procedures for federal elections under the
National Voter Registration Act of 1993 (Motor Voter Act),8 three federal circuits
appeared to find that the Congress had the same authority to regulate presidential
elections as it did House and Senate elections.9 However, of the three opinions, two
made only passing references to the issue, and only the Seventh Circuit discussed
it at any length. In ACORN v. Edgar, Chief Judge Posner of the Seventh Circuit
wrote that:
Article I, §4 [providing authority over congressional elections]. . . makes no
reference to the election of the President, which is by the electoral college
rather than by the voters at the general election; general elections for
President were not contemplated in 1787. . . . But these turn out not to be [a]
serious omission[] so far as teasing out the modern meaning of Article I, §4
is concerned. Article II provides [congressional authority over the Time of
choosing Electors.] Article II, §1 . . . has been interpreted to grant Congress
power over Presidential elections coextensive with that which Article I ,§4
grants it over congressional elections. Burroughs v. United States, 290 U.S.
534 (1995).10
It should be noted that the federal registration standards developed under
Motor Voter could probably have been decided under Congress’ power over
congressional elections, so that the reasoning of these cases would not appear
essential to their holdings. These broad holdings, however, do stand as some of the
few modern interpretations of Article II, §1, cl. 4 and Burroughs.11 Those cases’
7 290 U.S. 543-544.
8 42 U.S.C. §§1973gg et seq.
9 ACORN v. Edgar, 56 F.3d 791 (7th Cir. 1995); Voting Rights Coalition v. Reno, 60 F.3d
1411, 1414 (9th Cir. 1995); ACORN v. Miller, 129 F.3d 833, 836 n.1 (1997).
10 56 F.3d at 793.
11 Further support for this position is seen in Oregon v. Mitchell, where Justice Black wrote
(continued...)
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interpretations, however, would appear to be at odds with the limiting language of
Burroughs quoted previously.12
Resolution of this issue may ultimately be important to any determination of
whether proposals to standardize election procedures could be specifically applied
to presidential elections. Where congressional and presidential election procedures
are likely to overlap, such as requirements for absentee balloting, uniform closing
times, multiple day elections, number and accessability of polling stations, etc.,
regulation of congressional elections may be for practical purposes sufficient.
However, where the issue at hand is unique to presidential elections, e.g. allocation
of electors based on popular vote, the resolution of this issue may become essential.
State and Local Elections
Congress does not have general legislative authority to regulate the manner
and procedures used for elections at the state and local level. The Congress,
however, does have extensive authority under the Civil War Amendments,13 the 19th
Amendment,14 the 24th Amendment,15 and the 26th Amendment16 to prevent
discrimination in access to voting, and it has exercised that power extensively over
state and local, as well as federal, elections.17 Thus, to the extent that national ballot
standards could be established as a means to avoid disenfranchisement, regulation
of state and local elections could be established.
11 (...continued)
“. . . it is the prerogative of Congress to oversee the conduct of presidential and
vice-presidential elections and to set the qualifications for voters for electors for those offices.
It cannot be seriously contended that Congress has less power over the conduct of presidential
elections than it has over congressional elections.” 400 U.S. 112, 124 (1970)(upholding
federal statute lowering minimum age for voters). Although Justice Black wrote the opinion
of the Court, no other Justice joined this portion of his opinion, as the other Justices instead
focused on Congress’ power under the 14th Amendment.
12 In fact, a careful reading of Burroughs reveals that the opinion is not even an
interpretation of Article II, §1 at all (as presumed in the ACORN case and by Justice Black
in Oregon v. Mitchell), but rather an interpretation (albeit uncited) of Article I, §8, cl. 18, the
Necessary and Proper Clause. See quoted text accompanying note 6.
13 U.S. Const., Amend. XIII (prohibiting slavery), Amend. XIV (due process and equal
protection) and Amend. XV (voting rights).
14 “The rights of citizens to vote shall not be denied . . . on account of sex.”
15 “The rights of citizens to vote . . . shall not be denied . . . by reason of failure to pay a poll
tax . . . .”
16 “The right of citizens . . . to vote shall not be denied . . . on account of age.”
17 See, e.g., Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (codified as
amended at 42 U.S.C. §§ 1971, 1973-1973bb-1 (1992)). For background on the Voting
Rights Act, see Whitaker, L. Paige, The Voting Rights Act of 1965: A Legal Overview (CRS
Report 91-736A).
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Such power does, however, have limits. For instance, the Fourteenth
Amendment provides that states shall not deprive citizens of "life, liberty or
property" without due process of law nor deprive them of equal protection of the
laws, and section 5 of that Amendment provides that the Congress has the power
to legislate to enforce its provisions. Thus, in Katzenbach v. Morgan,18 the Court
held that §5 of the Fourteenth Amendment authorized Congress not just to enforce
the provisions of the Fourteenth Amendment as defined by the courts, but to help
define its scope. In Katzenbach, the Court upheld a portion of the Voting Rights
Act of 1965 which barred the application of English literacy requirements to
persons who had reached sixth grade in a Puerto Rican school taught in Spanish.
In Flores v. City of Boerne,19 however, the Court limited the reach of this
authority. In Flores, the Court struck down the Religious Freedom Restoration Act
(RFRA)20 as beyond the authority of Congress under §5 of the Fourteenth
Amendment. RFRA, passed in response to the 1990 Supreme Court case of Oregon
v. Smith,21 was an attempt by the Congress to reinstate the compelling
governmental interest test which had been used to challenge the application of
generally applicable laws to religious institutions.
The Flores case arose when the City of Boerne denied a church a building
permit to expand, because the church was in a designated historical district. The
church challenged this action, asserting that the city had not demonstrated a
compelling interest in applying its zoning legislation to the church as required by
RFRA. In striking down RFRA, the Supreme Court held that there must be a
"congruence and proportionality" between the injury to be remedied and the law
adopted to that end. RFRA focused on no one area of alleged harm to religion, but
rather broadly inhibited the application of all types of state and local regulations to
religious institutions. Since the Court found no pattern of the use of neutral laws
of general applicability to disguise religious bigotry and animus against religion, it
found RFRA to be an over broad response to a relatively nonexistent problem.
Similarly, it might be difficult to justify an overall regulation of state and local
elections based on the Fourteenth Amendment, absent a strong showing of systemic
disenfranchisement of voters. Rather, Flores would seem to dictate that the
Congress would need to establish narrow proposals showing that particular voting
procedures threatened constitutional rights, and that the legislation was a congruent
and proportional response to such threat.
18 384 U.S. 641 (1966).
19 521 U.S. 507 (1997).
20 42 U.S.C. §2000bb et seq.
21 494 U.S. 872 (1990)(neutral generally applicable laws may be applied to religious practices
even if the law is not supported by a compelling governmental interest).
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Spending Power
The Congress has expansive authority to spend money for the general
welfare, which would encompass making monies available to state and local
governments to modify their election procedures.22 Further, the allocation of such
grant monies could be conditioned on compliance by state or local officials with
national standards for election procedures.23 Such grant conditions need not be
limited by the authority of Congress discussed above to directly legislate on the
issue, but could address election procedures regardless of whether they were for the
House, Senate, Presidency, state or local elections.24
22 U.S. Const., Art. I, §8, cl. 1. provides that “The Congress shall have Power To lay and
collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common
Defence and general Welfare of the United States. . . .”
23 South Dakota v. Dole, 483 U.S. 203 (1987)(Congress may condition grants to states based
on criteria related to the underlying grant scheme).
24 483 U.S. at 208-09.