The Regulation of Presidential Elections

There is an unresolved dispute lingering just beneath the surface of a host of laws regulating our elections: Does Congress have power under Articles I and II of the Constitution to legislate the nuts-and-bolts rules governing presidential elections? The issue exists because of a textual gap in congressional authority. Article I, Section 4 of the Constitution gives Congress the power to override a state’s choices about the “times, places, and manner” of congressional elections held in the state. Article II, Section 1 gives each state legislature the power to determine the “manner” in which its presidential electors are appointed but grants no additional authority to Congress or the states to regulate presidential elections themselves. Congress plainly has the power to regulate many aspects of these elections under the enforcement clauses of the Reconstruction Amendments. But what power, if any, does Congress have under the original Constitution to regulate those elections once a state legislature has opted to use popular elections to appoint the state’s presidential electors? The Supreme Court has upheld congressional authority to regulate presidential elections under the original Constitution in several contexts, but the issue has gained new salience in recent years because of a long running dispute in Arizona about whether the state can require voter registrants to present documentary proof of citizenship, contrary to federal law. This dispute has presented the current Court with an opportunity to reconsider those earlier opinions and reshuffle the division of power between states and Congress in this realm. This Essay approaches this issue through a new lens. It begins by exploring the conflict in Arizona that has brought the issue back to the Supreme Court. It then explains the background or “default” rules governing the distribution of power between Congress and the states, and why those rules are inapplicable in this context. It does so by examining both the 1787 Constitution’s division of power over federal elections and several judicial opinions discussing and applying the resulting constitutional provisions. It concludes by arguing that this history, as well as multiple precedents of the Supreme Court, affirm that Congress has ample authority to regulate presidential elections once a state has chosen that method of appointing its electors.