What role should the Federal government play in determining the election laws that regulate the election of Congress?
Traditionally, it has been the states that wrote the laws. Each one was able to tailor the laws to fit the circumstances of their own voters, and different states could experiment with various changes to see which worked best.
Now the House of Representatives has passed HR 1, which would have Congress impose its own choices on every state. It would set the rules for absentee voting, early voting, registration, voter ID, and much more.
What would the Americans who wrote and ratified the Constitution have said about such an expansion of Federal authority?
Article I, Section 4 of the Constitution has this to say. “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 . . .”
The Constitution names the state legislatures as the default body for establishing election laws, while allowing Congress to overrule them. That leaves the question of why Congress was allowed such a role. Under what circumstances did the American people in 1787-88 expect Congress to become involved?
A review of the debates in the Constitutional Convention and the ratifying conventions shows that they had two concerns which could justify a Federal role. The major worry was that some states might simply refuse to pass laws for congressional elections, and Congress would have to step in and do the job. Unlikely as this possibility may seem to us, they found precedents in the Confederation Congress of a state choosing to be unrepresented. Some states had also found that localities failed to elect representatives to their legislatures. In addition, lack of a quorum might also prevent any action. It was even suggested that, in time of war, a state might be invaded and its legislature unable to meet to pass the necessary laws for elections. Whatever the cause, there needed to be a back-up plan.
Alexander Hamilton, writing in Federalist 59, explained that what was needed was that the Federal government would “contain in itself the means of its own preservation.” While this justification seems to have been generally accepted, the broader wording of Section 4 was not. The ratifying conventions of Virginia, New York and North Carolina recommended an amendment that would clearly limit the power of Congress to acting only in case a state failed to pass the necessary laws, while South Carolina supported an amendment leaving it to “the sovereignty of the several states”.
Clearly the possibility of failure to pass election laws is not a problem which is relevant to HR 1, whose purpose is to rewrite existing laws rather than put them in place where they do not exist.
The second concern mentioned in 1787-88 was that the state legislatures might abuse the power to regulate elections, but this was met by a frequently expressed concern that Congress might likewise abuse its power of oversight, which led to four states recommending amendments as mentioned above. Federalists defended the broad grant of power in Section 4 by saying that only the most extraordinary abuses by the states would bring Federal intervention, while assuring doubters that Congress could be trusted to show restraint in the exercise of its power.
What sort of state abuses might result in Federal intervention? James Wilson, leader of the Pennsylvania Federalists, gave as an example the theoretical possibility that all of Pennsylvania might be required to go to Pittsburgh to vote. James Sullivan offered a nearly identical possibility, that there might be a single polling place and that one location being “the most inconvenient in the whole state”. Only if the state legislature were “composed of villains and knaves” would Congress ever act. Rufus King and Nathaniel Gorham declared that Congress should act if a state passed election laws that were “wholly disagreeable to the people” – not disagreeable to some of the people, or disagreeable to Congress. They were quick to assure skeptics that Congressional intervention would probably never actually take place. A Maryland Federalist, describing the power as “so very invidious”, wanted it understood that it was likely to remain unused without extreme provocation, in cases that “may be obviously improper”.
Is there now such an extraordinary problem that Congressional intervention is required? Have the states passed election laws that are “wholly disagreeable to the people” who elected them?
If we look at the dispute over the Georgia election reform law, the disagreements hardly reach this level. What is being disputed is such matters as whether absentee ballots should be verified by signature or an ID number; whether people standing in line close to the polling place should receive water from neutral election officials or partisan poll workers: and how many days of absentee and early voting should be allowed. None of these is similar to requiring people to travel hundreds of miles to vote.
If those who debated this issue in 1787-88 were here today, they would have to agree that the concerns raised by critics of Article I, Section 4 have been realized. Congress is threatening to take over state elections when there is simply no need to interfere with the states. HR 1 and its Senate companion, S. 1, should not be enacted.
Peter J. Thomas, Chairman of The Conservative Caucus, served in the Reagan and both Bush administrations, reaching the position of Acting Assistant Secretary for Administration in the Department of Agriculture under George W. Bush.