Federal Electoral Oversight and Constitutional Law

At first glance, the administration of elections in the U.S. can seem like one of the most egregious examples of the fragmented, unstandardized, and decentralized policies possible under a federalist system of national government. Voting policies vary widely from state to state: in Alabama, for example, voters can cast their ballots up to 55 days before an election, but Massachusetts provides only one fifth of that time for early voting; Idaho allows citizens to register to vote on the day of election day, while Arkansas allows no such thing; in Colorado, (even before the onset of the COVID-19 pandemic) all registered voters were provided with a ballot to vote by mail, but Louisiana did not make mail-in voting universally accessible even during the ongoing pandemic; in Maine, Alaska (beginning in 2022), and no other state, voters may rank candidates in order of preference for federal elections.

The reason that states have such leeway to write their own electoral policy is rooted in the two clauses of the U.S. Constitution that address the administration of federal elections. Article I Section 4, known as the Elections Clause, grants the power to regulate “The Times, Places and Manner of holding Elections for Senators and Representatives” to both state legislatures and Congress, while Article II Section 1 declares that “Each State shall appoint, in such Manner as the Legislature thereof may direct,” presidential electors to the Electoral College This latter clause is an example of unfettered jurisdiction of electoral policy being granted to the states. Under this clause, state legislatures have the exclusive authority to determine how their presidential electors will be appointed, with no provision whatsoever for congressional oversight. Remarkably, the clause does not even require states to hold a presidential election at all. In Bush v. Gore (2000), the Supreme Court noted this omission, explicitly acknowledging that “the individual citizen has no federal constitutional right to vote for Electors for the President of the United States.”

The Elections Clause of Article I, on the other hand, provides Congress with clear authority to regulate elections for Senators and Representatives, even to override state regulations. Many electoral policies that are universally true across all states exist because of congressional legislation empowered by this clause. The designation of Election Day as “the Tuesday next after the first Monday in the month of November” is set by Federal statute, as is the requirement that congressional Representatives be elected for specific districts within each state.

Federal regulation of electoral procedure is not only constitutionally permissible, it is often vitally important, sometimes even reaching to affect the administration of presidential elections. Congress passed the Voting Rights Act of 1965, for example, to prevent states from systematically discriminating against prospective Black voters. Prohibited from explicitly denying the right to vote on account of race by the 15th Amendment of 1870, some states had enacted discriminatory policies such as poll taxes and literacy tests. These roadblocks did not explicitly mention race but were designed to apply almost exclusively to Black voters. The Voting Rights Act outlawed such policies and imposed a “preclearance requirement” on states that engaged in such discrimination, requiring them to seek approval from the federal government before implementing any changes to their electoral policies and ensuring that such changes would not “have the effect of denying or abridging the right to vote on account of race or color.” The Act also implemented a formula to determine which states would be subject to such restrictions, applying them specifically to those states that administered any such discriminatory test to potential voters, or had either a voter registration or turnout rate of below 50% in the 1964 general election. This Act was a remarkable expansion of the power of Congress to regulate even presidential elections, and a crucial step in preventing electoral discrimination. The Supreme Court affirmed the Act’s constitutionality the next year in South Carolina v. Katzenbach (1966), under the Section 2 of the 15th Amendment, which guarantees to Congress the power to legislate in order to enforce the Amendment’s provision that the right to vote “shall not be denied or abridged… on account of race, color, or previous condition of servitude.”

This vital expansion of Congress’s electoral regulatory authority only truly lasted until 2013 when the Court, ruling in Shelby County v. Holder (2013) by a 5-4 majority, declared the Voting Rights Act’s coverage formula unconstitutional because, in Justice Roberts’ words, “things have changed dramatically” since the 1960s, rendering it “irrational… to distinguish between States… based on 40-year-old-data.” This decision has had serious, negative consequences for electoral accessibility. Freed from the preclearance requirement, many states were then free to alter their electoral policy without any federal oversight as to its potential discriminatory effects. In many cases, state legislatures began systematically restricting access to the ballot box; as of last year, for example, state and local elections officials had closed over 1600 polling places since the Shelby County decision. Shuttered polling places result in long lines to vote, lines that discourage people from voting and impose a financial burden on those who cast their ballot. Some states have purged their voter rolls of thousands of voters, and others have enacted photo ID requirements to vote. Each of these restrictive policies often disproportionately affects people of color.

This raises an important question: What can be done to restore federal oversight over elections? The Supreme Court itself actually provides a clear path in its Shelby County decision. Crucially, while the Supreme Court struck down the coverage formula contained in Section 4 of the 1965 Voting Rights Act, it left the rest of the law intact. Without a formula, Congress is currently powerless to enforce the preclearance requirement contained in Section 5, but the Court issued “no holding in Section 5 itself.” Therefore, if Congress were to update the Voting Rights Act with a new coverage formula, it would re-empower itself to enforce the preclearance requirement on states covered by the formula.

The proposed Voting Rights Advancement Act of 2019 would do just that, amending the formula to include any state in which a certain number of “voting rights violations” have occurred within the last 25 years. The Act would also define such violations broadly, including both violations of the 14th and 15th Amendments and any denial of preclearance under the act itself. This would create a “rolling” formula that would consistently take into account data from only the most recent 25 years, avoiding the out-of-date information that was the downfall of the original formula.

In Shelby County, Justice Roberts recalls the balance between State and Congressional regulation of elections enshrined in the Elections Clause, writing that the “Voting Rights Act sharply departs from these principles.” Roberts is correct, but this deviation in principles was, and remains, vitally necessary to protect equal electoral access. Congress has an obligation to enforce the 15th Amendment to ensure that no person’s vote will be abridged or denied because of the color of their skin; by passing the Voting Rights Advancement Act, Congress would re-open the door to fulfilling this obligation.

Jack Malamud is a junior concentrating in Political Science and Latin. He is a Staff Writer for the Law Review's Blog and can be reached at jack_malamud@brown.edu.