Congressional Power: Can They Override State Voting Laws?

The Constitution gives Congress the power to decide when electors are chosen, which it has done by enacting a federal law designating the Tuesday after the first Monday in November as Election Day. This supersedes any contrary state actions. However, each state's legislature has the authority to determine its manner of choosing electors, and could theoretically decide before Election Day to cancel the popular vote and appoint electors directly. The Elections Clause was intended to empower Congress to override state election rules, and the For the People Act is an example of a bill that could be used to stop state voting restrictions.

The Elections Clause empowers Congress to override state election rules

The Elections Clause was intended to empower Congress to override state election rules, not to restrict the way states enact legislation. The dominant purpose of the Elections Clause was to ensure that Congress could act if a state refused to provide for the election of representatives to the Federal Congress.

Proponents of the legislative-appointment theory argue that the first constitutional provision gives state legislatures the authority to cancel the popular vote for presidential electors and appoint them directly. However, constitutional experts agree that this authority must be exercised before Election Day. Once Election Day has passed, the determinative popular votes have been cast, and the legislature's authority to change the state's manner of appointing electors has passed as well.

Congress can also stop state voting restrictions by passing legislation such as the For the People Act, which aims to address gerrymandering and other voting restrictions.

Congress can stop state voting restrictions by passing the For the People Act

The For the People Act is the most significant democracy reform legislation in at least half a century. It has been described as the next great civil rights bill. The Act must be passed quickly, before redistricting begins to yield gerrymandered maps around the country.

Congress has the legal and constitutional power to stop voter suppression laws. The Constitution gives Congress the power to decide when electors are chosen, which Congress has done by enacting a federal law designating the Tuesday after the first Monday in November as Election Day. This supersedes any contrary state actions.

The Elections Clause was intended to empower Congress to override state election rules, not to restrict the way states enact legislation.

Congress's enactment of a uniform national Election Day supersedes any contrary state actions

Congress can override state voting laws. The Elections Clause was adopted to empower Congress to override state election rules, not to restrict the way states enact legislation. The Constitution gives Congress the power to decide when electors are chosen, which Congress has done by enacting a federal law designating the Tuesday after the first Monday in November as Election Day. This supersedes any contrary state actions.

The Constitution has two main provisions that govern the selection of presidential electors. First, the Constitution says that each state’s legislature has the authority to determine that state’s manner of choosing its electors. Second, the Constitution gives Congress the power to decide when the electors are chosen.

Although every state has chosen its electors by popular vote for more than a century, most constitutional experts agree that, under the legislature’s authority to choose the “manner” of appointing electors, a legislature could theoretically decide before Election Day to cancel the popular vote for presidential electors and instead appoint them directly. However, proponents of the legislative-appointment theory forget about the second constitutional provision.

The Senate must pass the For the People Act, and quickly, before redistricting begins to yield gerrymandered maps around the country. One way or another, this bill must find a way around the filibuster — by limiting it, creating an exception, or overturning it altogether.

State legislatures cannot overrule the popular vote

The Constitution has two main provisions that govern the selection of presidential electors. The first provision states that each state's legislature has the authority to determine the state's manner of choosing its electors. The second provision gives Congress the power to decide when the electors are chosen. Congress has enacted a federal law designating the Tuesday after the first Monday in November as Election Day. While a legislature could theoretically decide before Election Day to cancel the popular vote for presidential electors and instead appoint them directly, Congress's enactment of a uniform national Election Day under its own constitutional authority prohibits the choice of electors from being made based on elections held or laws passed after Election Day. In other words, under the constitutional timing provision as implemented by federal law, the absolute last day a state legislature could have decided to appoint the state's presidential electors for this election was November 3, 2020. Once that date passed, the determinative popular votes had all been cast, and therefore the legislature's authority to change the state's manner of appointing electors in 2020 passed as well.

The Elections Clause was intended to empower Congress to override state election rules, not to restrict the way states enact legislation. The dominant purpose of the Elections Clause was to ensure that Congress could choose representatives even if a state refused to provide for the election of representatives to the Federal Congress.

The idea that state legislatures could pick electors to overrule Americans' votes is a non-starter. While state legislatures have the authority to choose the "manner" of appointing electors, most constitutional experts agree that this does not extend to cancelling the popular vote for presidential electors and instead appointing them directly.

The Constitution gives Congress the power to decide when electors are chosen

The Elections Clause was intended to empower Congress to override state election rules, not to restrict the way states enact legislation. This clause was insurance against the possibility that a state would refuse to provide for the election of representatives to the Federal Congress.

Although every state has chosen its electors by popular vote for more than a century, most constitutional experts agree that a legislature could theoretically decide before Election Day to cancel the popular vote for presidential electors and instead appoint them directly. However, this idea of state legislatures picking electors to overrule Americans' votes is considered a non-starter.

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