ArtI.S4.C1.1.1.1.2 Role of Congress in Regulating Federal Elections

Article I, Section 4, Clause 1:

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.

By its terms, Article I, Section 4, Clause 1 empowers both Congress and state legislatures to regulate the times, places and manner of holding elections for Senators and Representatives. Not until 1842, when it passed a law requiring the election of Representatives by districts,¹ did Congress undertake to exercise this power. In subsequent years, Congress expanded on the requirements, successively adding contiguity, compactness, and substantial equality of population to the districting requirements.² However, no challenge to the seating of Members-elect selected in violation of these requirements was ever successful,³ and Congress deleted the standards from the 1929 apportionment act.⁴

In 1866, Congress was more successful in legislating to remedy a situation under which deadlocks in state legislatures over the election of Senators were creating vacancies in the office. The act required the two houses of each legislature to meet in joint session on a specified day and to meet every day thereafter until a Senator was selected.⁵

The first comprehensive federal statute dealing with elections was adopted in 1870 as a means of enforcing the Fifteenth Amendment's guarantee against racial discrimination in granting suffrage rights.⁶ Under the Enforcement Act of 1870, and subsequent laws, false registration, bribery, voting without legal right, making false returns of votes cast, interference in any manner with officers of election, and the neglect by any such officer of any duty required of him by state or federal law were made federal offenses.⁷ Provision was made for the appointment by federal judges of persons to attend at places of registration and at elections with authority to challenge any person proposing to register or vote unlawfully, to witness the counting of votes, and to identify by their signatures the registration of voters and election talley sheets.⁸ When the Democratic Party regained control of Congress, these pieces of Reconstruction legislation dealing specifically with elections were repealed,⁹ but other statutes prohibiting interference with civil rights generally were retained and these were used in later years. More recently, Congress has enacted, in 1957, 1960, 1964, 1965, 1968, 1970, 1975, 1980, and 1982, legislation to protect the right to vote in all elections, federal, state, and local, through the assignment of federal registrars and poll watchers, suspension of literacy and other tests, and the broad proscription of intimidation and reprisal, whether with or without state action.¹⁰

Another chapter was begun in 1907 when Congress passed the Tillman Act, prohibiting national banks and corporations from making contributions in federal elections.¹¹ The Corrupt Practices Act, first enacted in 1910 and replaced by another law in 1925, extended federal regulation of campaign contributions and expenditures in federal elections,¹² and other acts have similarly provided other regulations.¹³

As noted above, although § 2, cl. 1, of this Article vests in the states the responsibility, now limited, to establish voter qualifications for congressional elections, the Court has held that the right to vote for Members of Congress is derived from the Federal Constitution,¹⁴ and that Congress therefore may legislate under this section of the Article to protect the integrity of this right. Congress may protect the right of suffrage against both official and private abridgment.¹⁵ Where a primary election is an integral part of the procedure of choice, the right to vote in that primary election is subject to congressional protection.¹⁶ The right embraces, of course, the opportunity to cast a ballot and to have it counted honestly.¹⁷ Freedom from personal violence and intimidation may be secured.¹⁸ The integrity of the process may be safeguarded against a failure to count ballots lawfully cast¹⁹ or the dilution of their value by the stuffing of the ballot box with fraudulent ballots.²⁰ But the bribery of voters, although within reach of congressional power under other clauses of the Constitution, has been held not to be an interference with the rights guaranteed by this section to other qualified voters.²¹

To accomplish the ends under this clause, Congress may adopt the statutes of the states and enforce them by its own sanctions.²² It may punish a state election officer for violating his duty under a state law governing congressional elections.²³ It may, in short, use its power under this clause, combined with the Necessary and Proper Clause, to regulate the times, places, and manner of electing Members of Congress so as to fully safeguard the integrity of the process; it may not, however, under this clause, provide different qualifications for electors than those provided by the states.²⁴