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«Order Code RL30747 Report for Congress Received through the CRS Web Congressional Authority to Standardize National Election Procedures Updated ...»

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Order Code RL30747

Report for Congress

Received through the CRS Web

Congressional Authority

to Standardize

National Election Procedures

Updated February 14, 2003

Kenneth R. Thomas

Legislative Attorney

American Law Division

Congressional Research Service ˜ The Library of Congress

Congressional Authority to Standardize National

Election Procedures

Summary

Events surrounding the 2000 Presidential election have led to increased scrutiny

of voting procedures in the United States, including efforts 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 relevant to Congress standardizing 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............................................... 9 Congressional Authority to Standardize National Election Procedures Background Events surrounding the 2000 Presidential election have led to increased scrutiny of current voting procedures in the United States. For instance, efforts have been made 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 are relevant Congress standardizing 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:

–  –  –

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 of votes, duties of inspectors and canvassers, and making and 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....” 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 States, Analysis and Interpretation 119 (1992) (available at [http://www.loc.gov/crs/conan/art01/42.htm]).

CRS-3 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 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).

CRS-4 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 exception to this would be congressional authority under the Civil War Amendments (13th, 14th and 15th); these powers are addressed in the following section on regulating state and local elections.

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:



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