H.R. 4563, the American Confidence in Elections Act (ACE Act): Legal Background

H.R. 4563, the American Confidence in Elections Act (ACE Act): Legal Background

July 21, 2023
H.R. 4563, the American Confidence in Elections Act (ACE
Act): Legal Background
On July 11, 2023, H.R. 4563, the American Confidence in
and “the Day on which they shall give their Votes; which
Elections Act (ACE Act), was introduced in the 118th
Day shall be the same throughout the United States.”
Congress. The ACE Act proposes to amend federal election
law primarily in the areas of election administration and
Federal Election Administration Law
campaign finance. On July 13, 2023, the Committee on
Federal law regulates federal election administration, which
House Administration, one of the committees of
includes procedures for voter registration and voter roll
jurisdiction, held a markup and ordered the bill to be
maintenance.
reported, as amended. This In Focus provides an overview
of the constitutional framework for federal election law and
Voter Registration
the legal background relating to two major areas of law that
For federal elections, the National Voter Registration Act of
the ACE Act proposes to amend: federal election
1993 (NVRA), also known as the “motor-voter law,”
administration law and federal campaign finance law. For a
requires states to provide for mail-in voter registration and
policy overview of the ACE Act, see CRS In Focus
to establish voter registration procedures for eligible
IF12451, H.R. 4563, the American Confidence in Elections
citizens at motor vehicle departments and at certain other
(ACE) Act, coordinated by Karen L. Shanton.
state agencies. As amended by the Help America Vote Act
of 2002 (HAVA), the NVRA requires the Election
Constitutional Framework
Assistance Commission (EAC) to create a nationally
Although federal elections have national impact, they are
uniform voter registration form—called the Federal Form—
primarily administered according to state laws. Article I,
for applicants to use to register by mail and at certain state
Section 4, clause 1, of the U.S. Constitution, known as the
and local offices. The NVRA specifies that the Federal
Elections Clause, authorizes to the states the initial and
Form can require identifying information from an applicant
principal authority to administer elections within their
only to assess eligibility and must include a statement
jurisdictions. Specifically, the Elections Clause provides:
specifying eligibility requirements, including citizenship, an
“The Times, Places and Manner of holding Elections for
attestation that the applicant meets each requirement, and
Senators and Representatives, shall be prescribed in each
the applicant’s signature under the penalty of perjury. The
State by the Legislature thereof; but the Congress may at
law allows states to create their own mail voter registration
any time by Law make or alter such Regulations, except as
forms for federal elections so long as those forms comport
to the Places of chusing Senators.” As a result of this
with NVRA requirements and states also accept the Federal
decentralized authority, states vary significantly in how
Form.
they administer the federal voting process and elections.
For example, states have enacted differing laws addressing
The Supreme Court held that the NVRA’s requirement that
early voting, absentee voting, deadlines for voter
states use the Federal Form for registering voters in federal
registration, voter identification (ID) laws, and standards
elections preempted a state law requiring documentary
for drawing congressional redistricting maps.
proof of citizenship for registering to vote. The Court also
determined that, although the NVRA precludes a state from
At the same time, the Elections Clause provides Congress
requiring an applicant using the Federal Form to provide
with the authority to “override” state laws regulating federal
additional proof of citizenship beyond what the form
elections. See Arizona State Legislature v. Arizona
requires, a state has the power to ask the EAC to include the
Independent Redistricting Commission, 576 U.S. 787
requirement in the form’s state-specific instructions. See
(2015). Under that authority, Congress has enacted laws
Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1
such as the National Voter Registration Act and the Help
(2013).
America Vote Act, discussed below, which dictate how
states must administer certain aspects of the federal election
The ACE Act would amend the NVRA to permit states to
process.
require applicants to provide proof of citizenship with both
the Federal Form and state-created forms.
A parallel constitutional provision addressing presidential
elections known as the Electors Clause—in Article II,
Voter Roll Maintenance
Section 1, clause 2—provides that “[e]ach state shall
As amended by HAVA, the NVRA contains both
appoint” electors for President and Vice President in the
requirements and restrictions relating to the removal of
manner “as the Legislature thereof may direct.” Further,
registrants from federal election voter rolls. The NVRA
Article II, Section 1, clause 4, provides Congress with the
prohibits states from removing individual registrants except
power to determine when the states choose their electors
under certain circumstances, including “by reason of” the
registrant’s change in residence. At the same time, the
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H.R. 4563, the American Confidence in Elections Act (ACE Act): Legal Background
NVRA requires states to “conduct a general program that
constitutionality of such contribution limits. See Buckley v.
makes a reasonable effort to remove” the names of voters
Valeo, 424 U.S. 1 (1976). In addition, FECA provides for
who have changed residence. In a provision that the
related restrictions, including the ban on contributions made
Supreme Court has called the “Failure-to-Vote Clause,” the
by one person through a conduit, the ban on converting
NVRA provides that such state programs cannot result in
campaign contributions for personal use, and the treatment
removing a voter’s name from the rolls for an individual’s
of communications a donor makes in coordination with a
“failure to vote,” unless the person has either not notified
candidate or party as contributions.
the registrar or responded to a notice sent by the registrar
and has not voted in two or more consecutive general
Source Restrictions
federal elections. In interpreting this provision, the Court
FECA contains several bans—known as source
has held that a state process using voter inactivity to initiate
restrictions—on who may make campaign contributions.
a process to remove registrants from its voter rolls did not
Source restrictions include the ban on corporate and union
violate the NVRA’s Failure-to-Vote Clause, because the
campaign contributions that are made directly from treasury
registrant’s failure to vote was not the sole determinant for
funds. FECA requires corporations and unions seeking to
removal. See Husted v. A. Philip Randolph Institute, 138 S.
make contributions to establish political action committees
Ct. 1833 (2018).
(PACs). The Supreme Court has upheld the ban on
corporate and union contributions directly from treasury
The ACE Act would require the EAC’s Standards Board
funds. See FEC v. Beaumont, 539 U.S. 146 (2003). In
and Local Leadership Council to issue “voluntary
contrast, the Court has held that a ban on corporate and
considerations” for states regarding aspects of federal
labor union independent spending is unconstitutional. See
election administration, including voter registration list
Citizens United v. FEC, 558 U.S. 310 (2010). FECA source
maintenance.
restrictions also include the ban on federal contractor
contributions and the ban on foreign national contributions
Federal Campaign Finance Law
and expenditures in federal, state, and local elections.
The Federal Election Campaign Act (FECA) primarily
regulates federal election campaigns in three ways:
Disclaimer and Disclosure Requirements
contribution limits, source restrictions, and disclosure and
FECA establishes disclaimer and disclosure requirements.
disclaimer requirements.
FECA’s disclaimer requirements mandate that statements of
attribution appear directly on campaign-related
Many provisions of FECA have been challenged in court
communications. FECA’s disclosure requirements mandate
under the First Amendment with mixed results. According
that political committees register with the FEC and comply
to the Supreme Court, limits on campaign contributions—
with periodic reporting requirements. In addition, the law
which involve giving money to an entity—and limits on
requires other entities—such as labor unions and
expenditures—which involve spending money directly for
corporations, including incorporated organizations that are
electoral advocacy—implicate rights of political expression
tax-exempt under Section 501(c)(4) of the Internal Revenue
and association under the First Amendment. The Court,
Code—that make independent expenditures or
however, has afforded different degrees of First
electioneering communications to disclose certain
Amendment protection and levels of scrutiny to
information.
contributions and expenditures. Contribution limits are
The Supreme Court has generally affirmed the
subject to a more lenient standard of review than
constitutionality of FECA’s disclosure and disclaimer
expenditure limits, the Court has held, because they impose
requirements. In contrast to the standard of “strict scrutiny”
only a marginal restriction on speech and will be upheld if
applied to expenditure limits, the Supreme Court has
the government can demonstrate that they are a closely
applied the somewhat less rigorous “exacting scrutiny”
drawn means of achieving a sufficiently important
standard to disclaimer and disclosure requirements. It
governmental interest. In contrast, the Court has determined
requires the government to show that its action is
that because they impose a substantial restraint on speech
substantially related to a sufficiently important interest.
and association, expenditure limits are subject to “strict
Applying “exacting scrutiny” to FECA’s disclaimer and
scrutiny,” requiring that they be narrowly tailored to serve a
disclosure laws, the Court has identified three government
compelling governmental interest. See Buckley v. Valeo,
interests justifying these requirements: (1) providing voters
424 U.S. 1 (1976). The Court’s two most recent major
with information, (2) deterring quid pro quo candidate
campaign finance decisions have held that only quid pro
corruption and avoiding its appearance, and (3) facilitating
quo corruption or its appearance constitute a sufficiently
the enforcement of campaign finance law. See Buckley v.
important governmental interest to justify limits on
Valeo, 424 U.S. 1 (1976); Citizens United v. FEC, 558 U.S.
contributions and expenditures. See McCutcheon v. FEC,
310 (2010).
572 U.S. 185 (2014); FEC v. Ted Cruz for Senate, 142 S.
Ct. 1638 (2022).
Among other things, the ACE Act would amend FECA to
index certain contribution limits for inflation, repeal limits
Contribution Limits
on coordinated party expenditures, and extend the ban on
Contribution limits refer to how much a donor can
foreign national contributions and expenditures to state and
contribute and how contributions can be made. FECA
local ballot initiatives.
establishes specific contribution limits on how much money
a donor may contribute to a candidate, party, and political
L. Paige Whitaker, Legislative Attorney
committee. The Supreme Court has generally upheld the
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H.R. 4563, the American Confidence in Elections Act (ACE Act): Legal Background

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