Election Regulations

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.

Article I, Section 4, Clause 1

The purpose of this provision of the Constitution was twofold. First, it made clear the division of responsibility with respect to the conduct of the election of federal Senators and Representatives. That responsibility lay primarily with the states and secondarily with Congress. Second, the clause lodged the power to regulate elections in the respective legislative branches of the states and the federal government, not with the executive or judicial.

Opponents to the Constitution hotly contested the clause during the ratification debates. The concern of the Anti-Federalists was that the default prerogatives to Congress would result in Members of Congress manipulating election laws so that they could stay in office indefinitely. Alternatively, Congress might alter the times and places of elections so as to make it extremely difficult to vote, undermining the franchise. On the other hand, defenders of the clause argued that if Congress did not retain residual power to control federal elections, state officials might effectively destroy Congress by failing to make rules for the election of its Members. As Alexander Hamilton remarked in The Federalist No. 59, "every government ought to contain within itself the means of its own preservation." Hamilton argued that the provision was a reasonable compromise that gave Congress default powers that would be exercised "whenever extraordinary circumstances might render that interposition necessary to its safety." In addition, the fact that Congress as a whole, and not any single house of Congress, was authorized to make or alter regulations under the clause meant that a national consensus between the people's or "democratic" branch of the federal government and the Senate, representing the states, would have to take place before any changes could occur.

Since ratification of the Constitution, there have been many legal developments that have altered the provisions of Article I, Section 4, the most significant of which came after the Civil War. The Fifteenth Amendment (1870) prohibited voter discrimination on the basis of race. The Enforcement Act of 1870 had some beneficial effect in curbing the abuse of the electoral process, particularly in the South, but with its evisceration in United States v. Reese (1875) and United States v. Cruikshank (1876), Southern states were able effectively to disenfranchise black citizens.

The Voting Rights Act of 1965 resurrected tough legal prohibitions on racial discrimination in voting and transformed Southern politics and American politics in the process. The most important and controversial of the act's original provisions, Sections 4 and 5, required states predominantly in the South (covered by Section 4) to seek "preclearance" (under Section 5) from the federal Department of Justice or U.S. District Court for the District of Columbia for any new voting practices or procedures postdating November 1, 1964. The constitutionality of these provisions was upheld in South Carolina v. Katzenbach (1966). The 1970 Voting Rights Act proposed to reduce the voting age in national, state, and local elections to eighteen. In Oregon v. Mitchell (1970), the Court upheld this provision as it applied to national elections but disallowed it as it applied to state and local elections. The Twenty-sixth Amendment effectively overruled this latter holding. The scope of the Voting Rights Act's coverage has increased over the decades and continues to impose significant constraints on states covered by the act, particularly when it comes to redistricting.

In addition to statutory constraints, Congress and the people have altered the electoral process through the amending process. The Seventeenth Amendment altered the manner of conducting the elections of Senators by requiring their popular election. The Nineteenth Amendment prohibited voter discrimination on the basis of sex. The Twenty-fourth Amendment prohibited poll taxes in federal elections, and the Twenty-sixth Amendment gave eighteen-year-olds the right to vote.

Despite Alexander Hamilton's assurance that Congress would regulate elections only in "extraordinary circumstances," congressional intervention has been significant. In 1842, Congress required the election of Members of the House of Representatives by district. Repealed in 1929, the single-Member district rule was restored by Congress in 1967. Also, until 1929 Congress required that each district's territory be compact and contiguous with substantially the same number of inhabitants. Wood v. Broom (1932).

In recent decades, the Supreme Court has stepped into the electoral process. In Wesberry v. Sanders (1964), the Supreme Court determined that, despite congressional practice, Article I, Section 2, Clause 1, mandated that the "one person, one vote" formula be applied to each congressional district. Critics of the Court's decision have noted that it ignored the language of Article I, Section 4, Clause 1, which appeared to leave questions of reapportionment and redistricting to the legislative, not judicial, branch of government. Under the Fourteenth Amendment's Equal Protection Clause, the Court has also indicated that gerrymandered districts can be an indication of an unconstitutional, racially motivated redistricting plan. Shaw v. Reno (1993). However, the Court has not yet required, as a constitutional matter, that districts be compact and contiguous. Shaw v. Reno and Miller v. Johnson (1995) also highlighted the potential conflict between the demands of the Voting Rights Act for the creation of "safe minority seats" and the constitutional prohibition on redistricting in which race is the predominant factor motivating the redistricting.

Beginning with the Tillman Act in 1907, Congress has imposed a growing number of restrictions on elections and campaign financing. The most significant piece of legislation has been the 1971 Federal Election Campaign Act, amended in 1974. It was this legislation that was at issue in the Supreme Court's seminal decision, Buckley v. Valeo (1976), which, in the face of a First Amendment challenge, set the ground rules for campaign finance legislation, generally disallowing restrictions on expenditures by candidates, but permitting restrictions on contributions by individuals and corporations.

Anthony Peacock
Professor of Law
Director, Project on Liberty & American Constitutionalism
Department of Political Science
Utah State University