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.
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 branches.
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 legislature and the Senate, representing the states, would have to take place before any changes could occur.
The Framers of the Constitution drew upon British precedents and state practices in their understanding of what constituted the “Times, Places and Manner of holding Elections,” but in a more precise way. British and state practice had subsumed the qualifications of electors and candidates, and the times and places of elections, in the phrase “manner of elections.” The Framers, on the other hand, thought the elements of elections should be more particularly delineated. As Hamilton’s discussion in The Federalist Nos. 59–61 made clear, the “Times, Places and Manner” provisions of the Election Regulations Clause were to be taken literally. They referred to states having the primary power of determining the dates, the locations, and the conditions under which elections for federal Senators and Representatives would be held. Congress had only a secondary power in this regard and had no power to alter the location states chose for selecting Senators. This last, James Madison argued at the Constitutional Convention, was reserved to the state legislatures, which alone had the sovereign right to determine where to convene to elect Senators.
However, there were some additional restrictions. In response to the complaint that the federal government might attempt to manipulate the places elections took place to benefit “the wealthy and the well-born,” Hamilton remarked in The Federalist No. 60 that securing the rich such a preference could only be done by “prescribing qualifications of property either for those who may elect or be elected. But this forms no part of the power to be conferred upon the national government. Its authority would be expressly restricted to the regulation of the times, the places, and the manner of elections. The qualifications of the persons who may choose or be chosen . . . are defined and fixed in the Constitution, and are unalterable by the legislature.”
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 as mentioned above, 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. The passage of the 2006 Voting Rights Act has raised the further constitutional question of whether jurisdictions covered by Section 5 of the act should still have to seek preclearance from the federal Department of Justice for changes to their electoral practices, which the 2006 Voting Rights Act extended through 2031.
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. The Bipartisan Campaign Finance Reform Act of 2002, which amended FECA, sought to impose further restrictions on “soft money” contributions and electioneering communications, such as issue advertisements by corporations and unions, but these latter provisions were deemed unconstitutional restrictions on political speech in Citizens United v. Federal Election Commission (2010).
Ward E.Y. Elliott, The Rise of Guardian Democracy: The Supreme Court's Role in Voting Rights Disputes, 1845–1969 (1974)
Robert G. Natelson, The Original Scope of the Con-gressional Power to Regulate Elections, 13 U. PA. J. CONST. L. 1 (2010)
Anthony A. Peacock, ed., Affirmative Action and Representation: Shaw v. Reno and the Future of Voting Rights (1997)
BRADLEY A. SMITH, UNFREE SPEECH: THE FOLLY OF CAMPAIGN FINANCE REFORM (2001)
United States v. Reese, 92 U.S. 214 (1875)
United States v. Cruikshank, 92 U.S. 542 (1876)
Wood v. Broom, 287 U.S. 1 (1932)
Smith v. Allwright, 321 U.S. 649 (1944)
Wesberry v. Sanders, 376 U.S. 1 (1964)
South Carolina v. Katzenbach, 383 U.S. 301 (1966)
Powell v. McCormack, 349 U.S. 486 (1969)
Oregon v. Mitchell, 400 U.S. 112 (1970)
Beer v. United States, 425 U.S. 130 (1976)
Buckley v. Valeo, 424 U.S. 1 (1976)
Karcher v. Daggett, 462 U.S. 725 (1983)
Thornburg v. Gingles, 478 U.S. 30 (1986)
Shaw v. Reno, 509 U.S. 630 (1993)
Miller v. Johnson, 515 U.S. 900 (1995)
United States Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995)
Georgia v. Ashcroft, 539 U.S. 461 (2003)
McConnell v. FEC, 540 U.S. 93 (2003)
League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006)
Northwest Austin Municipal Utility District No. 1 v. Holder, 557 U.S. 193 (2009)
Citizens United v. Federal Elections Comm’n, 558 U.S. 310 (2010)