Elections and Voting: Policy and Legal Issues for the 118th Congress

Elections and Voting: Policy and Legal Issues for the 118th Congress

Updated January 5, 2023
Elections and Voting: Policy and Legal Issues for the 118th
Congress
Traditionally, the federal government’s role in campaigns
of campaign finance (Citizens United v. FEC (2010)),
and elections primarily includes regulating campaign
congressional redistricting (Rucho v. Common Cause
finance, protecting voting rights, and supporting states in
(2019)), and voting rights (Shelby County v. Holder
election administration. Congress approved substantial
(2013)).
amendments to these policy areas between 2002 and 2009.
Recent Congresses also provided funding to support states
Policy Area Overview
and territories responding to election administration
Based on the constitutional provisions noted above,
challenges concerning election security and the COVID-19
Congress has enacted at least nine major statutes regulating
pandemic. This CRS In Focus provides brief background
aspects of federal elections. Federal statutes, and proposed
for Members of Congress and staff as they prepare for
amendments, generally fall into three broad areas:
legislative and oversight duties in the 118th Congress.
campaign finance, election administration, and voting
rights. Each addresses unique but potentially related topics.
Federal Role and Constitutional
Because policy issues are not necessarily mutually
Framework
exclusive, how to classify various bills could be a matter of
Although congressional and presidential elections have
debate.
national impact, they are primarily administered according
to state laws. Article I, Section 4, clause 1 of the
Campaign Finance
Constitution (Elections Clause) gives the states the initial
Congress most recently substantially amended campaign
and principal authority to administer the “Times, Places and
finance law in 2002, with the Bipartisan Campaign Reform
Manner” of congressional elections within their
Act (BCRA). BCRA amended the Federal Election
jurisdictions, as “prescribed in each State by the Legislature
Campaign Act (FECA; 52 U.S.C. §§ 30101-30146), which
thereof.” This decentralized authority results in states
contains most federal campaign finance statutory
varying significantly in how they administer the federal
provisions. Federal campaign finance policy is organized
voting process and elections. At the same time, the
around three major themes: (1) prohibitions on
Elections Clause provides Congress with the authority to
contributions or expenditures from certain sources (e.g.,
“override” such state laws. (Arizona State Legislature v.
foreign nationals); (2) limits on contributions from
Arizona Independent Redistricting Commission (2015)).
permissible sources; and (3) disclosure and disclaimer
Under that authority, Congress has enacted laws such as the
requirements designed to provide identifying information
Help America Vote Act (HAVA) and the National Voter
about financial transactions and attribution for campaign-
Registration Act (NVRA), which dictate how states must
related communications. FECA also established the Federal
administer certain aspects of the federal election process.
Election Commission (FEC). In a series of rulings, the
Congress has also enacted laws setting the time for
Supreme Court has invalidated several FECA provisions
elections to the Senate and House of Representatives. (2
under the Free Speech Clause of the First Amendment,
U.S.C. §§ 1, 7).
informing Congress as to the constitutional parameters of
campaign finance regulation. For example, most recently,
A parallel provision addressing presidential elections—
the Court invalidated a FECA provision establishing a limit
Article II, Section 1, clause 2 of the Constitution (Electors
on campaign contributions that can be used to repay
Clause)—provides that “[e]ach state shall appoint” electors
candidates for personal loans. (FEC v. Ted Cruz for Senate
for President and Vice President in the manner “as the
(2022)).
Legislature thereof may direct.” Further, Article II, Section
1, clause 4, provides Congress with the power to determine
Election Administration
when the states choose their electors, which Congress has
States are primarily responsible for election administration
set in statute. (3 U.S.C. § 1).
and voter registration. HAVA (52 U.S.C. §§ 20901-21145)
and the NVRA (52 U.S.C. §§ 20501-20511) address aspects
The Fifteenth Amendment provides that the right of citizens
of both issues. Enacted in 1993, the NVRA is noted
to vote “shall not be denied or abridged ... on account of
primarily for requiring states to offer voter-registration
race, color, or previous condition of servitude,” and
opportunities when eligible citizens apply for drivers
authorizes Congress to enact enforcement legislation.
licenses and during specified other interactions with state
agencies. The act also specifies “list maintenance”
Over the years, the Supreme Court has defined the scope of
requirements for updating state voter rolls.
Congress’s authority to regulate aspects of federal elections
and interpreted certain federal election-related statutes. For
HAVA, enacted in 2002, primarily addresses election
example, the Court has issued pivotal rulings in the context
administration issues. Among other requirements, HAVA
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Elections and Voting: Policy and Legal Issues for the 118th Congress
sets minimum standards for voting systems; requires
appropriations bill (H.R. 4502) contained funding for
provisional ballots subject to verification; and mandates
elections grants to states. Also during the first session, the
statewide voter registration databases. It authorized grants
Senate did not invoke cloture on the motion to proceed to
for states to upgrade election equipment after the 2000
versions of the For the People Act (S. 2093; see also S. 1);
presidential election and otherwise support election
the VRAA (S. 4); the Freedom to Vote Act (S. 2747); and
administration. HAVA also established the Election
the DISCLOSE Act (S. 4822). Early in the second session,
Assistance Commission (EAC). Congress also has
on January 13, 2022, the House approved the Freedom to
authorized grants separately to support state and territorial
Vote: John R. Lewis Act and sent it to the Senate in the
election administration.
form of an amendment between the houses on an unrelated
bill (H.R. 5746). On January 19, 2022, the Senate did not
Voting Rights
agree to a cloture motion on the text. The legislation
The Voting Rights Act of 1965 (VRA; 52 U.S.C. §§ 10101-
combines elements of some of the bills noted above and
10702) prohibits discrimination in all aspects of voting
addresses aspects of campaign finance, election
based on race, color, or membership in certain language
administration, and voting rights.
minority groups. Section 2 of the VRA applies nationwide
and has mostly been invoked in challenges to redistricting
Congressional Committee Roles
maps. For the first time, in Brnovich v. Democratic
Most congressional legislative and oversight activity on
National Committee (2021), the Supreme Court interpreted
campaign finance, elections, and voting issues occurs in
Section 2 in the context of state voting procedures and
four committees: two in the House and two in the Senate.
established “certain guideposts” for courts to evaluate such
The Committee on House Administration and the Senate
claims. In Shelby County v. Holder (2013), the Court
Rules and Administration Committee have primary
invalidated the VRA’s coverage formula, rendering the
jurisdiction over campaign finance and federal elections
preclearance requirements inoperable. Prior to the Shelby
issues. These committees also oversee the EAC and the
County ruling, certain jurisdictions were required under the
FEC. The House and Senate Judiciary Committees have
VRA to preclear all proposed changes to voting laws.
primary jurisdiction over constitutional and voting rights
issues, including oversight of the Department of Justice
Other federal statutes address voting protections for elderly
(DOJ), which enforces some aspects of federal elections
and disabled voters (Voting Accessibility for the Elderly
and voting statutes. Other committees also consider
and Handicapped Act; 52 U.S.C. §§ 20101-20107) and
elections issues within their jurisdictions (e.g., the House
uniformed services members and overseas citizens
Homeland Security Committee on election security).
(Uniformed and Overseas Citizens Absentee Voting Act; 52
Recent Congresses have appropriated EAC and FEC funds
U.S.C. §§ 20301-20311).
through Financial Services and General Government and
consolidated or omnibus appropriations measures. Recent
Latest Congressional Action
Congresses have provided DOJ funding through
The 117th Congress did not enact any “stand-alone” changes
Commerce, Justice, Science and consolidated or omnibus
to federal statutes regulating campaign finance, election
appropriations bills. Congress also oversees and
administration, or voting rights. In December 2022, the
appropriates funds to some other agencies that support
House and Senate included Electoral Count Act (ECA; 3
elections in addition to their primary duties on other issues
U.S.C. §§5-6, 15-18) amendments in the FY2023
(e.g., DHS).
Consolidated Appropriations Act (P.L. 117-328). The ECA
establishes procedures for a joint session of Congress to
Pending Supreme Court Cases
count and announce the presidential and vice-presidential
During its current term, the Supreme Court is considering
electoral votes. The enacted ECA amendments originated as
two potentially consequential election law cases. On
the Electoral Count Reform and Presidential Transition
October 4, 2022, the Court heard oral argument in Merrill
Improvement Act (S. 4573). The FY2023 appropriations
v. Milligan, a case that could affect standards that reviewing
law also included $75 million for grants supporting
courts apply in determining when a redistricting map
improved state and territorial election administration and
violates Section 2 of the VRA. On December 7, 2022, the
security. Congress appropriated the same amount in
Court heard oral argument in Moore v. Harper, where the
FY2022 (P.L. 117-103). Congress also extended certain
Court is evaluating the scope of a state court’s authority
grant eligibility to the Commonwealth of the Northern
under the Elections Clause to overturn laws enacted by a
Mariana Islands and the American Indian consortium (P.L.
state legislature that regulate congressional elections based
117-182) and directed the Department of Homeland
on state constitutional provisions. The Court’s decision in
Security (DHS) to undertake additional coordination
Moore could clarify under what circumstances state
regarding cybersecurity to state, local, tribal, and territorial
legislatures have the authority to establish laws that regulate
(SLTT) governments, as well as election officials (P.L.
federal elections—including congressional redistricting
117-150).
maps—without review by state courts.
The 117th Congress considered other policy changes that
R. Sam Garrett, Specialist in American National
did not become law. The House passed three bills related to
Government
campaign finance, elections, or voting rights: H.R. 1, the
L. Paige Whitaker, Legislative Attorney
For the People Act; H.R. 4, the John R. Lewis Voting
Rights Advancement Act (VRAA); and H.R. 5314, the
IF12291
Protecting Our Democracy Act. In addition, a House-passed
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Elections and Voting: Policy and Legal Issues for the 118th Congress

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