Gavin Howe
The United States Constitution grants state legislatures significant authority in regulating federal elections, as outlined in the Elections Clause. This clause empowers states to establish rules and procedures for conducting elections, including congressional redistricting. However, the interpretation of the Elections Clause has been contentious, with some arguing that it grants state legislatures unchecked power over election laws, while others emphasize the role of state courts in reviewing and ensuring compliance with state constitutions. State legislatures have actively pursued voting-related laws, and the Supreme Court's stance on this issue will significantly impact the balance of power in election regulation.
| Characteristics | Values |
|---|---|
| State legislatures can make rules around election procedures | Yes |
| State legislatures can change Electoral College votes during a presidential election without judicial review | No |
| State legislatures can delegate their authority under the Elections Clause to other entities or officials | Yes |
| State legislatures can make changes that are in line with the purpose of the initiative through a three-fourths supermajority vote | Yes |
| State legislatures can make changes that go against the initiative's purpose without voter approval | No |
| State legislatures can amend or repeal an approved citizen initiative with a simple majority vote after a period of time has passed | Yes |
| State legislatures can override redistricting legislation | Yes |
| State legislatures can draw congressional district boundaries | Yes |
| State legislatures can determine the winners from the results of the primary election | No |
| State legislatures can tie voter identification to a biometric database | Yes |
| State legislatures can require the use of paper ballots | Yes |
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What You'll Learn
State legislatures can make rules around election procedures
The Elections Clause divides authority between state legislatures and Congress, with the Supreme Court construing the term "legislature" broadly to include any entity or procedure that a state's constitution permits to exercise lawmaking power. This means that laws regulating elections may be enacted by a state's actual legislature or directly by its voters through initiatives or referendums in states that allow them. For example, Arizona established an independent commission to draw congressional district lines, removing this authority from the legislature, and this was upheld by the Court.
State legislatures have enacted an unprecedented number of voting-related laws in recent years, with 2024 seeing at least 21 states enact 32 expansive laws, and overall, at least 42 states have enacted 172 expansive laws since January 2021. These laws can be changed or repealed by state legislators after an election, as seen in states like North Dakota, Washington, and Alaska.
While state legislatures can make rules, state courts have traditionally ensured that these laws follow state constitutions, and the Court has rejected attempts by legislatures to restrict the way states enact legislation.
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State courts ensure election laws follow state constitutions
The United States Supreme Court has ruled that state legislatures must abide by the election laws of their respective states. This means that state legislatures have a duty to prescribe rules governing federal elections. The Elections Clause of the Federal Constitution, Art. I, § 4, cl. 1, provides that the time, place, and manner of holding elections for United States Senators and Representatives shall be determined by state legislatures.
State courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause. However, the Court has cautioned that state court power to review state rules regarding federal elections is limited to the ordinary bounds of judicial review. State courts should not overstep their bounds and intrude upon the role of state legislatures in regulating federal elections.
The Supreme Court has interpreted the term "Legislature" broadly to include any entity or procedure that a state's constitution permits to exercise lawmaking power. This means that laws regulating congressional elections can be enacted not only by a state's legislature but also directly by its voters through initiatives or referendums, where permitted.
In practice, this has played out in several cases. In Davis v. Hildebrant (1916), the Court held that a state's referendum system to override redistricting legislation was within the legislative power, rejecting the argument that the referendum was not part of the Legislature. Similarly, in Arizona State Legislature v. Arizona Independent Redistricting Commission (2015), the Court held that the term "Legislature" refers to any lawmaking process authorized by a state's constitution, including public referendums and initiatives.
State courts, therefore, play a crucial role in ensuring that state legislatures follow state constitutional restraints when enacting election laws. They interpret and apply state constitutional provisions to state election laws, ensuring compliance with state constitutions.
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Congress can override state election rules
The Elections Clause, or Article I, Section 4, Clause 1, of the US Constitution, grants state legislatures the power to establish the times, places, and manner of holding elections for the House of Representatives and the Senate. However, this power is subject to Congress making or altering such state regulations, as outlined in the Elections Clause. This clause empowers Congress to override state election rules and establish uniform rules for federal elections that are binding on the states.
The Supreme Court has interpreted the Elections Clause broadly, allowing states to create a comprehensive code for congressional elections, encompassing not just times and locations but also notices, registration, vote supervision, voter protection, fraud prevention, and corrupt practices. On several occasions, Congress has exercised its authority under the Elections Clause to "make or alter" rules governing congressional elections. For example, Congress has established a single national Election Day for congressional elections and mandated that states with multiple representatives divide themselves into congressional districts.
Additionally, Congress has enacted statutes limiting campaign contributions, requiring public disclosure of election-related spending, and mandating the availability of voter registration forms at various public offices. The Elections Clause also permits state legislatures to delegate their authority to other entities or officials, such as non-partisan or bipartisan "independent redistricting commissions." These commissions are intended to make the electoral process fairer by preventing gerrymandering, which can unduly favour incumbents.
While the Elections Clause grants Congress the power to override state election rules, it does not restrict the way states enact legislation. State courts retain the authority to apply state constitutional restraints when legislatures act under the Elections Clause. However, their power to review state rules regarding federal elections is limited to the ordinary bounds of judicial review, and they must not intrude upon the role specifically reserved for state legislatures by the Federal Constitution.
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State legislatures can change Electoral College votes
State legislatures play a crucial role in the Electoral College process, which is frequently criticized and often sparks concerns among citizens. The Electoral College system is used to elect the President and Vice President of the United States. Voters in each state choose electors, who are members of the Electoral College, and these electors cast the official votes for President. While state legislatures cannot overrule the popular vote for President, they have the power to influence the process.
The number of electoral votes allocated to each state is based on the Census and the state's representation in Congress. Each state is allocated votes equal to the number of its Senators and Representatives, with two votes for its Senators and additional votes equal to its Congressional districts. The District of Columbia is also allocated three electors and treated like a state for the Electoral College.
State legislatures have the authority to appoint electors, but they must do so according to laws enacted before Election Day. The majority of states have a winner-take-all policy, where the overall winner of the state-wide popular vote determines which party chooses the electors. However, Maine and Nebraska are exceptions to this rule.
State legislatures can attempt to influence the outcome by proposing laws or resolutions that appoint members of the Electoral College who support their preferred candidate. This scenario raises concerns among citizens, with a significant majority worried about the potential for "faithless electors" who do not vote as pledged.
To prevent such concerns, Congress passed the Electoral Count Reform Act of 2022, making it more challenging to challenge and discount electoral votes during the joint session of Congress. While state legislatures have the power to propose changes, the Electoral College rules prioritize votes cast by electors chosen on Election Day, ensuring that any illegal legislative attempts to usurp the election would fail.
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Federal laws require states to maintain accurate, up-to-date voter lists
The Help America Vote Act (HAVA) of 2002 established new requirements for first-time voters who register to vote by mail. HAVA requires states to accept a federally-created mail registration form that requests a voter's name, address, date of birth, ID (either their driver's license number or the last four digits of their social security number), and in some states, their party affiliation and race. This form can be used in every state except North Dakota, New Hampshire, and Wyoming.
Additionally, the NVRA and HAVA require states to maintain an accurate and current statewide list of every legally registered voter. This includes adding, updating, and removing voters from lists. The Department of Homeland Security is required to share database information with states upon request to help fulfill this duty. Maintaining accurate voter registration lists is fundamental to protecting voters from having their ballots voided or diluted by fraudulent votes.
Furthermore, federal laws prohibit foreign nationals from registering to vote or voting in federal elections. The Election Assistance Commission is responsible for taking appropriate action to require documentary proof of United States citizenship for voter registration. The Attorney General and the Secretary of Homeland Security are also responsible for taking actions to prevent non-citizens from being involved in the administration of any federal election.
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Frequently asked questions
The Elections Clause is a feature of the US Constitution that gives state legislatures the power to regulate federal elections.
The Supreme Court has interpreted the word "Legislature" in the Elections Clause broadly to include any entity or procedure that a state’s constitution permits to exercise lawmaking power. This means that laws regulating elections can be enacted by a state’s actual legislature or directly by its voters through initiatives or referendums, depending on the state.
While state legislatures have substantial authority to regulate federal elections, they are still bound by federal laws and judicial review. The US Supreme Court has left open the possibility that it could endorse a theory that would give state legislatures unchecked powers over election rules.
State legislatures can make rules around election procedures, but traditionally, state courts have ensured those laws follow state constitutions. Voting rights activists fear that a US Supreme Court that embraces the aforementioned theory might open the door to state legislatures changing Electoral College votes without judicial review.
