Sec. 101. Findings relating to election administration

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A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

It is the sense of Congress that constitutional scholar Robert Natelson has done invaluable work with respect to the history and understanding of the Elections Clause. Congress finds the following: The Constitution reserves to the States the primary authority to set election legislation and administer elections—the times, places, and manner of holding of elections —and Congress’ power in this space is purely secondary to the States’ power and is to be employed only in the direst of circumstances.

History, precedent, the Framers’ words, debates concerning ratification, the Supreme Court, and the Constitution itself make it exceedingly clear that Congress’ power over elections is not unfettered. The Framing Generation grappled with the failure of the Articles of Confederation, which provided for only a weak national government incapable of preserving the Union. Under the Articles, the States had exclusive authority over Federal elections held within their territory; but, given the difficulties the national government had experienced with State cooperation (e.g., the failure of Rhode Island to send delegates to the Confederation Congress), the Federalists, including Alexander Hamilton, were concerned with the possibility that the States, in an effort to destroy the Federal Government, simply might not hold elections or that an emergency, such as an invasion or insurrection, might prevent the operation of a State’s government, leaving the Congress without Members and the Federal Government unable to respond.

Quite plainly, Alexander Hamilton, a leading Federalist and proponent of our Constitution, understood the Elections Clause as serving only as a sort of emergency fail-safe, not as a cudgel used to nationalize our elections process. Writing as Publius to the people of New York, Hamilton further expounds on the correct understanding of the Elections Clause: T[he] natural order of the subject leads us to consider, in this place, that provision of the Constitution which authorizes the national legislature to regulate, in the last resort, the election of its own members. .

Alexander Hamilton (writing as Publius), Federalist no. 59, Concerning the Power of Congress to Regulate the Election of Members, N.Y. PACKET (Fri., Feb. 22, 1788). When questioned at the States’ constitutional ratifying conventions with respect to this provision, the Federalists confirmed this understanding of a constitutionally limited, secondary congressional power under Article 1, Section 4. ( [C]onvention delegate James McHenry added that the risk to the federal government [without a fail-safe provision] might not arise from state malice:

An insurrection or rebellion might prevent a state legislature from administering an election. ); ( An occasion may arise when the exercise of this ultimate power of Congress may be necessary . . . if a state should be involved in war, and its legislature could not assemble, (as was the case of South Carolina and occasionally of some other states, during the [Revolutionary] war). ); ( Sir, let it be remembered that this power can only operate in a case of necessity, after the factious or listless disposition of a particular state has rendered an interference essential to the salvation of the general government. ).

See Robert G. Natelson, The Original Scope of the Congressional Power to Regulate Elections, 13 U. PA. J. CONST. L. 1, 12–13 (Nov. 2010). John Jay made similar claims in New York. And, as constitutional scholar Robert Natelson notes in his invaluable article, The Original Scope of the Congressional Power to Regulate Elections, Alexander Contee Hanson, a member of Congress whose pamphlet supporting the Constitution proved popular, stated flatly that Congress would exercise its times, places, and manner authority only in cases of invasion, legislative neglect or obstinate refusal to pass election laws [providing for the election of Members of Congress], or if a state crafted its election laws with a Cementing his point, Hanson goes further to decree, sinister purpose or to injure the general government.

The exercise of this power must at all times be so very invidious, that congress will not venture upon it without some very cogent and substantial reason. . Alexander Contee Hanson (writing as Astrides), Remarks on the Proposed Plan: 31 January, reprinted in John P. Kaminski, Gaspare J. Saladino, and Richard Leffler (eds.), 3 Commentaries on the Constitution, public and private 18 December 1787 to 31 January 1788 522–26 (1984). In fact, had the alternate view of the Elections Clause been accepted at the time of the Constitution’s drafting—that is, that it offers Congress unfettered power over Federal elections— it is likely that the Constitution would not have been ratified or that an amendment to this language would have been required.

Indeed, at least seven of the original 13 States—over half and enough to prevent the Constitution from being ratified—expressed specific concerns with the language of the Elections Clause. See 1 Annals of Cong. 799 (1789), Joseph Gales (ed.) (1834). However, [l]eading Federalists … assured them … that, even without amendment, the [Elections] Clause should be construed as limited to emergencies . Three States, New York, North Carolina, and Rhode Island, specifically made their ratification contingent on this understanding being made express.

Ratification of the Constitution by the State of New York (July 26, 1788) ( Under these impressions and declaring that the rights aforesaid cannot be abridged or violated, and the Explanations aforesaid are consistent with the said Constitution, And in confidence that the Amendments which have been proposed to the said Constitution will receive early and mature Consideration: We the said Delegates, in the Name and in [sic] the behalf of the People of the State of New York Do by these presents Assent to and Ratify the said Constitution.

In full Confidence . . . that the Congress will not make or alter any Regulation in this State respecting the times places and manner of holding Elections for Senators or Representatives unless the Legislature of this State shall neglect or refuse to make laws or regulations for the purpose, or from any circumstance be incapable of making the same, and that in those cases such power will only be exercised until the Legislature of this State shall make provision in the Premises );

Ratification of the Constitution by the State of North Carolina (Nov. 21, 1789) ( That Congress shall not alter, modify, or interfere in the times, places, or manner of holding elections for senators and representatives, or either of them, except when the legislature of any state shall neglect, refuse or be disabled by invasion or rebellion, to prescribe the same. ); Ratification of the Constitution by the State of Rhode Island (May 29, 1790) ( Under these impressions, and declaring, that the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid, are consistent with the said constitution, and in confidence that the amendments hereafter mentioned, will receive an early and mature consideration, and conformably to the fifth article of said constitution, speedily become a part thereof;

We the said delegates, in the name, and in [sic] the behalf of the People, of the State of Rhode-Island and Providence-Plantations, do by these Presents, assent to, and ratify the said Constitution. In full confidence . . . That the Congress will not make or alter any regulation in this State, respecting the times, places and manner of holding elections for senators and representatives, unless the legislature of this state shall neglect, or refuse to make laws or regulations for the purpose, or from any circumstance be incapable of making the same; and that [i]n those cases, such power will only be exercised, until the legislature of this State shall make provision in the Premises[.] ).

Congress finds that the Framers designed and the ratifying States understood the Elections Clause to serve solely as a protective backstop to ensure the preservation of the Federal Government, not as a font of limitless power for Congress to wrest control of Federal elections from the States. This understanding was also reinforced by debate during the first Congress that convened under the Constitution where Representative Aedanus Burke proposed a constitutional amendment to limit the Times, Places and Manner Clause to emergencies.

Although the amendment failed, those on both sides of the Burke amendment debate already understood the Elections Clause to limit Federal elections power to emergencies. History clearly shows that even in the first Congress that convened under the Constitution, it was acknowledged and understood through the debates that ensued over the Elections Clause provision that Congress’ control over elections is limited. Similarly, proponent Representative Smith of South Carolina also believed the original text of the Elections Clause already limited the Federal Government’s power over Federal elections to emergencies and so thought there would be no harm in supporting an amendment to make that language express.

Annals of Congress 801

(1789)Joseph Gales Edition. A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774–1875 (loc.gov). So, even the records of the First Congress reflect a recognition of the emergency nature of congressional power over Federal elections. Similarly, the Supreme Court has supported this understanding. In Smiley v. Holm, the Court held that Article 1, Section 4 of the Constitution reserved to the States the primary … 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 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. And these requirements would be nugatory if they did not have appropriate sanctions in the definition of offenses and punishments. All this is comprised in the subject of . Smiley v. Holm, 285 U.S. 355, 366 (1932). times, places and manner of holding elections , and involves lawmaking in its essential features and most important aspect. This holding is consistent with the understanding of the Elections Clause since the framing of the Constitution. The Smiley Court also held that while Congress maintains the authority to … supplement these state regulations or [to] substitute its own[] , such authority remains merely a general supervisory power over the whole subject. . Id. More recently, the Court noted in Arizona v. Inter-Tribal Council of Ariz., Inc. that [t]his grant of congressional power [that is, the fail-safe provision in the Elections Clause] was the Framers’ insurance against the possibility that a State would refuse to provide for the election of representatives to the Federal Congress. . Arizona v. Inter-Tribal Council of Arizona, Inc., 570 U.S. 1, 7–9 (2013). The Court explained that the Elections Clause … imposes [upon the States] the duty … to prescribe the time, place, and manner of electing Representatives and Senators[.] . Id. at 8. And, while, as the Court noted, [t]he power of Congress over the , id. at 9, the Inter-Tribal Court explained, quoting extensively from the Federalist no. 59, that it was clear that the congressional fail-safe included in the Elections Clause was intended for the sorts of governmental self-preservation discussed here: Times, Places, and Manner of congressional elections is paramount, and may be exercised at any time, and to any extent which it deems expedient; and so far as it is exercised, and no farther, the regulations effected supersede those of the State which are inconsistent therewith[] [E]very government ought to contain in itself the means of its own preservation[.] ; [A]n exclusive power of regulating elections for the national government, in the hands of the State legislatures, would leave the existence of the Union entirely at their mercy. They could at any moment annihilate it by neglecting to provide for the choice of persons to administer its affairs. . Id. at 8. It is clear in every respect that the congressional fail-safe described in the Elections Clause vests purely secondary authority over Federal elections in the Federal legislative branch and that the primary authority rests with the States. Congressional authority is intended to be, and as a matter of constitutional fact is, limited to addressing the worst imaginable issues, such as invasion or other matters that might lead to a State not electing representatives to constitute the two Houses of Congress. Congress’ authority has never extended to the day-to-day authority over the Times, Places and Manner of Election that the Constitution clearly reserves to the States. Congress must act within the bounds of its constitutional authority when enacting legislation concerning the administration of our Nation’s elections.

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285 U.S. 355
570 U.S. 1

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Sec. 101

Findings relating to election administration

SCOTUS285 U.S. 355

SCOTUS570 U.S. 1

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