The Elections Clause

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

—Derek T. Muller

Introduction

The Elections Clause provides that state legislatures have the power to determine the “times, places and manner of holding elections” for Senators and Representatives, but Congress itself may alter those regulations or make its own. During the ratification process, this clause was the source of heated debate over the balance between state and federal power. For decades after ratification, Congress did not exercise its Elections Clause authority, but it used this power more actively following the Civil War and during the civil rights era. The Supreme Court of the United States has been called on to interpret the clause’s meaning in several landmark cases.

History Before 1787

The phrase “manner of elections” appeared in a number of earlier sources from the British Isles. The Dublin Society’s Royal Charter described its “manner of election” broadly as a power that included time limits, elector qualifications, and a process for determining a voting location.¹ A Digest of the Laws of England, published in 1780, described the “Manner of Election” for members of Parliament as including when and where voting took place, the identity of election officials, and their responsibilities. The manner included how voting took place: by voice, show of hands, or a poll (a process of identifying which voters were qualified or not). The manner also provided the penalties for election officials who violated their duties.²

Colonial legislation used the phrase similarly. An election code from South Carolina in 1721 set forth the “Manner and Form of electing Members” of the state’s lower house. That manner included, among other things, the method of choosing election officials, their responsibilities, penalties for violating election rules, and qualifications for voters and candidates.³ Rhode Island’s royal charter described the “manner” of its gubernatorial elections. That manner included the date of elections, which were to be held at town meetings where votes would “be sealed up by the moderators and town clerks,” and the manner in which votes would be counted.⁴

After the Revolutionary War, several states adopted constitutions and laws laying out the “manner” of elections. These laws used the word “manner” in ways that were similar to its meaning in colonial times, including requirements regarding times of elections, method of voting, election officials and their duties, and elector qualifications.⁵

Taken as a whole, these pre-1787 sources suggest that the “manner” power was quite broad. “Manner” typically included qualifications for both electors and candidates, the times and places of elections, election rules, the threshold of votes required to win, the method of casting votes or ballots, the method for resolving contested elections, enforcement of election laws, and all of the practical mechanics of carrying out an election.⁶

The Constitutional Convention

The Elections Clause proved to be one of the more contested clauses during the Constitutional Convention. An early draft of the Pinckney Plan, shared on May 29, 1787, allowed the states to regulate the time and manner of holding elections with no role for Congress.⁷ A subsequent version from the Committee of Detail expanded that state legislature’s power to regulate “the times and places and [the] manner of holding the elections of the members of each House.” This version, which gave the “Legislature of the United States” the power to “alter[]” these regulations, was presented to the Convention on August 6.⁸

On August 9, the proposed clause was debated by the full Convention.⁹ Charles Pinckney and John Rutledge, both of South Carolina, opposed language that would have permitted Congress to alter state regulations. They argued that the “States . . . could & must be relied on.”¹⁰

Rufus King of Massachusetts warned that the houses’ “right of judging the returns of their members” would be frustrated if Congress lacked authority over the manner of state elections.¹¹ According to King, Congress’s power to regulate the manner of elections would reinforce Congress’s power to judge the results of those elections. Gouverneur Morris of Pennsylvania further predicted that if Congress lacked this power, the states could “make false returns and then make no provisions for new elections.”¹²

James Madison of Virginia argued that, inevitably, “State Legislatures will sometimes fail or refuse to consult the common interest at the expense of their local conveniency.”¹³ Because the states were granted authority over federal elections with “words of great latitude . . . [i]t was impossible to foresee all the abuses that might be made of the discretionary power.”¹⁴ The national legislature could be trusted with the power to intervene. In particular, Senators were elected by the very state representatives that were entrusted with authority over elections. Moreover, members in the House of Representatives were elected by the same population that chose the state legislatures.¹⁵

The text would be finalized on September 14. The final clause provided, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” This text granted Congress authority to create election regulations in a scenario in which the states failed or refused to do so. Congress would also have the power to alter existing state regulations.¹⁶ But Congress would not have the power to regulate “the Places of chusing Senators.” Under the Constitution, Senators would be elected by state legislatures in their state capitols. (See Essay No. 15.) The last clause was designed “to exempt the seats of Gov[ernment] in the States from the power of Congress.” This uncontroversial addition came very late in the process.¹⁷

The Ratification Debates

Contentious debate continued during the state ratification process.¹⁸ The Federalist Papers dedicated significant time to defending the Elections Clause. In Federalist No. 59, Alexander Hamilton emphasized that “every government ought to contain in itself the means of its own preservation.” It was too dangerous to leave the process to the states alone. Hamilton wrote that “an 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.” If Congress lacked the power to revise state laws, the states “could at any moment annihilate [the Union] by neglecting to provide for the choice of persons to administer its affairs.”

Hamilton acknowledged that putting power over elections in the hands of the federal government could lead to violations of the right of certain groups to vote “in certain turbulent and factious seasons.” But he denied in Federalist No. 60 that this federal power could ever lead to Congress intentionally depriving “the great mass of the people” of their vote, at least without risking revolution.

Anti-Federalists offered a litany of objections to the Elections Clause. For example, Cincinnatus noted that state constitutions regulated elections instead of leaving such power to the legislature.¹⁹ Centinel, writing to the people of Pennsylvania, warned that the wide range of powers would permit Congress to “abolish the suffrage by ballot”²⁰ and “revoke[] every other part of the constitution that may be tolerable.”²¹ Centinel also feared that Congress would abuse its power to regulate the “times” of elections by postponing them indefinitely on flimsy excuses about political unrest or threat of invasion.²² Federal Farmer found “no valuable purposes” in giving power to Congress to interfere with state power over elections.²³

Dissenters in Pennsylvania warned that once the federal government had been “firmly established” and “a numerous standing army” was in place, members of Congress could “comple[te] the system of despotism” by holding office for life and handing their positions to their children.²⁴ Anti-Federalists like Cato and Cornelius also predicted that federal legislators could “destroy the rights of election” using such tactics as placing voting locations in out-of-the-way places or holding elections at inconvenient times.²⁵

Early Practice

For about five decades after ratification, states provided the rules for elections without congressional intervention. Congress first enacted legislation pursuant to the Elections Clause with the Apportionment Act of 1842.²⁶ The law required that each district must elect a single representative. As a result, states with more than one representative were not permitted to elect all of its representatives in one state-wide election.²⁷

During Reconstruction, Congress sought to protect the right to vote and the integrity of elections with new legislation. The Enforcement Act of 1870 prohibited individuals from committing fraud in congressional elections or interfering with voters or election officials in congressional elections.²⁸

The Elections Clause is much broader than other election-related provisions of the Constitution in one respect and much narrower in another. Congress’s power to “enforce” the Fifteenth Amendment, for example, extends to protecting the right to vote regardless of “race, color, or previous condition of servitude.” The Elections Clause is much broader because it extends to all “manner of holding elections.” But the Elections Clause also applies only to congressional elections. Congress’s power elsewhere often extends to enforcing “the right of citizens of the United States to vote,” regardless of who administers the election and regardless of whether the election is federal, state, or local. Because the Elections Clause applies only to congressional elections, Congress must rely on other powers to extend its election rules to presidential, state, and local elections.

Judicial Precedent

In Ex parte Siebold (1879), the U.S. Supreme Court recognized the breadth of Congress’s power under the Elections Clause as “paramount.”²⁹ This power “may be exercised as and when Congress sees fit to exercise it,” and a federal rule “necessarily supersedes” any state regulations.³⁰

United States v. Classic (1941) explained that the Elections Clause is a “constitutional command” “without restriction or limitation.”³¹ This provision empowers Congress to regulate general elections, which are public activity, as well as primary elections, which affect the private organization and operation of a political party choosing its nominee.

Where Congress has not regulated congressional elections, states may freely regulate them, subject to other constitutional provisions like the First Amendment and the Equal Protection Clause. Still, there are outer bounds to state power under the Elections Clause. U.S. Term Limits, Inc. v. Thornton (1995) declared unconstitutional an Arkansas law that imposed term limits for those seeking to run for Congress.³² The Court held that qualifications for members of Congress were enumerated in Article I of the Constitution. (See Essay Nos. 8 and 17.) As a result, such qualifications fell outside of the scope of the state’s power to regulate the “manner of holding elections,” which were limited to “procedural regulations.”

The Elections Clause provides that these rules “shall be prescribed in each State by the Legislature thereof” unless Congress makes or alters them. The Elections Clause expressly grants the “Legislature” the power to prescribe rules in congressional elections. Yet, the Supreme Court has found that other actors may participate in a state’s lawmaking process. First, Ohio ex rel. Davis v. Hildebrant (1916) held that the “Legislature” may be checked by a popular referendum.³³ Second, Smiley v. Holm (1932) concluded that the “Legislature” may be checked by gubernatorial veto.³⁴ Third, Arizona State Legislature v. Arizona Independent Redistricting Commission (2015) held that the people could pass a ballot initiative creating an independent commission responsible for congressional redistricting, effectively taking the power out of the hands of the legislature.³⁵ And fourth, Moore v. Harper (2023) found that state constitutions could limit state legislatures.³⁶ The legislature exercises a federal responsibility when it is setting the rules for federal elections, but a state legislature could still be constrained to issue election rules that comply with state constitutional law. Moore recognized that federal courts should defer to how state courts interpret their state constitutions in these cases. Still, the Court cautioned that “state courts do not have free rein” and “may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”³⁷

Open Questions

• May Congress abrogate state sovereign immunity under the Elections Clause?³⁸
• May Congress commandeer state officials to implement laws enacted pursuant to the Elections Clause?³⁹
• What is the relationship between the “qualifications” for office, which are beyond the power of Congress and the state to regulate, and the state’s power to implement rules about the “manner of holding elections”?⁴⁰
• Under Moore v. Harper (2023), what are the “bounds” of state judicial review and when do state courts “arrogate” power from the state legislature?

1. 1 The Royal Charter of the Dublin Society (1785). ↩︎
2. 5 John Comyns & Anthony Holland, A Digest of the Laws of England 255–259 (1822). ↩︎
3. 3 The Statutes at Large of South Carolina 135–38 (Thomas Cooper ed., 1838). ↩︎
4. 6 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the State[s], Territories, and Colonies Now or Heretofore Forming the United States of America (6 Thorpe) 3214, 3230 (Francis Newton Thorpe ed., 1909). ↩︎
5. N.J. Const. of 1776, art. VII; Mass. Const. of 1780, ch. 1, § 2, arts. II, IV; Md. Const. of 1776, arts. II, IV, VI, IX, XII, XIV, XVII; 2 Thorpe 780; 5 Thorpe 2793. ↩︎
6. Robert G. Natelson, The Original Scope of the Congressional Power to Regulate Elections, 13 Univ. Pa. J. Const. L. 1, 17–18 (2010). ↩︎
7. 2 Farrand’s 135; 3 Farrand’s 597. ↩︎
8. 2 Farrand’s 153, 155, & 179. ↩︎
9. Id. at 239. ↩︎
10. Id. at 240. ↩︎
11. Id. at 241. ↩︎
12. Id. ↩︎
13. Id. at 240. ↩︎
14. Id. at 240–41. ↩︎
15. Id. at 241. ↩︎
16. Id. at 240–42. ↩︎
17. Id. at 613. ↩︎
18. Jamal Greene, Note, Judging Partisan Gerrymanders Under the Elections Clause, 114 Yale L.J. 1021, 1034–39 (2005). ↩︎
19. Storing 6.1.54. ↩︎
20. Storing 2.7.73. ↩︎
21. Id. at 2.7.100. ↩︎
22. Id. ↩︎
23. Id. at 2.8.161. ↩︎
24. Storing 3.11.25. ↩︎
25. Storing 2.6.47; Storing 4.10.10. ↩︎
26. 5 Stat. 491 (1842). ↩︎
27. Franita Tolson, The Spectrum of Congressional Authority over Elections, 99 Bost. U. L. Rev. 317, 347 (2019). ↩︎
28. 16 Stat. 140 (1870). ↩︎
29. 100 U.S. 371, 384 (1879). ↩︎
30. Id. at 384. ↩︎
31. 313 U.S. 299, 315 (1941). ↩︎
32. 514 U.S. 779, 834 (1995). ↩︎
33. 241 U.S. 565 (1916). ↩︎
34. 285 U.S. 355 (1932). ↩︎
35. 576 U.S. 787 (2015). ↩︎
36. 600 U.S. 1 (2023). ↩︎
37. Id. ↩︎
38. Public Interest Legal Found. v. Matthews, 589 F. Supp. 3d 932, 937–39 (C.D. Ill. 2022). ↩︎
39. Evan H. Caminker, Printz, State Sovereignty, and the Limits of Formalism, 1997 Sup. Ct. Rev. 199, 237–38 (1997); Paul E. McGreal, Unconstitutional Politics, 76 Notre Dame L. Rev. Online 519, 553–54 (2001). ↩︎
40. Greene v. Sec. of State, 52 F.4th 907 (11th Cir. 2022); Cawthorn v. Amalfi, 35 F.4th 245, 266–85 (4th Cir. 2022); Derek T. Muller, Weaponizing the Ballot, 48 Fla. St. U. L. Rev. 61 (2021). ↩︎