Cecily Zamora
The US Constitution's Elections Clause gives states the power to create their own election laws, including those concerning public notices, voter registration, fraud prevention, and vote counting. However, Congress can override these laws at any time, and some states have chosen to transfer the power to draw congressional district lines to independent redistricting commissions to prevent gerrymandering. Since 2020, at least 15 states have passed 33 election interference laws, while at least 21 states have enacted 32 expansive laws.
| Characteristics | Values |
|---|---|
| Who makes election laws? | State legislatures and ballot measures |
| Who plays the primary role in creating policy on elections administration? | States, not the federal government |
| Who has the power to set the "Times, Places, and Manner" of congressional elections? | States |
| Who has the authority to "alter" state regulations or "make" its own? | Congress |
| Who has the power to regulate congressional elections? | Congress |
| Who has the power to make laws? | The people of Arizona via an initiative consistent with state law |
| Who has the power to delegate authority under the Elections Clause to other entities or officials? | Legislature |
| Which states have chosen to transfer power to draw congressional district lines from their respective legislatures to non-partisan or bipartisan "independent redistricting commissions"? | A few states |
| Which states passed election interference laws since 2020? | At least 15 states |
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What You'll Learn
State legislatures and ballot measures
In the United States, state legislatures and ballot measures play a crucial role in shaping election laws. While the federal government sets certain standards and guidelines, states have significant autonomy in creating and implementing their own election policies. This is primarily due to the Elections Clause in Article I of the U.S. Constitution, which grants states the authority to establish the "Times, Places, and Manner" of congressional elections.
The Elections Clause empowers state legislatures to create rules and regulations governing various aspects of elections. These include public notices, voter registration, voter protection, fraud prevention, vote counting, and the determination of election results. This clause provides states with considerable flexibility in how they conduct elections, allowing them to adapt their processes to local needs and preferences.
State legislatures have actively used this authority to shape election laws. For example, in Arizona, the state legislature utilised a 2000 ballot initiative to establish the Arizona Independent Redistricting Commission (AIRC). This commission was tasked with creating congressional districts, removing redistricting authority from the legislature itself. The U.S. Supreme Court upheld the validity of this commission, interpreting the Elections Clause as granting states the power to make laws through ballot initiatives.
In addition to establishing election procedures, state legislatures also have the authority to enact laws that impact voting access and turnout. Since the 2020 election, there has been a surge in restrictive legislation, with at least 30 states enacting 79 restrictive laws. These laws can include voter ID requirements, changes to voter registration processes, and alterations to voting technology. While some of these measures aim to enhance election integrity and security, they can also make it more challenging for eligible citizens to exercise their right to vote.
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![California Elections Code [2025 Edition]](https://m.media-amazon.com/images/I/51mYusgKCkL._AC_UY218_.jpg)
Federal preemption of state law
The Elections Clause in Article I of the U.S. Constitution gives states the power to set the "Times, Places, and Manner" of congressional elections. This includes the power to make laws and regulations concerning public notices, voter registration, voter protection, fraud prevention, vote counting, and determination of election results.
However, the Elections Clause also holds that any laws passed by Congress regulating congressional elections would automatically displace ("preempt") any conflicting state laws. This means that while states have primary responsibility for regulating elections, Congress has the ultimate power to override state election laws. This power has been used increasingly in the last century to impose substantive requirements on states regarding issues such as districting, voter registration standards, and voting system modernization.
The U.S. Supreme Court has recognized that the Elections Clause creates a unique relationship between the states and the federal government, with concurrent jurisdiction over congressional elections. This relationship allows for a mix of state and federal laws governing elections, with states typically creating the policy on elections administration.
The Court has also clarified that the term "Legislature" in the Elections Clause refers to the power to make laws, which can include the people of a state through ballot initiatives and referendums. This interpretation gives states flexibility in how they create election laws while ensuring that the ultimate authority to regulate elections rests with the state legislatures.
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State voter initiatives and referendums
The Elections Clause in Article I of the U.S. Constitution gives states the power to set the "Times, Places, and Manner" of congressional elections, which includes rules concerning public notices, voter registration, voter protection, fraud prevention, vote counting, and determination of election results. State voter initiatives and referendums can be used to establish congressional districts, as seen in Arizona, where the use of an independent commission to draw congressional districts was found to be permissible by the Court.
The process of gathering the required number of signatures for state voter initiatives and referendums can be costly, especially in larger states, as each signature must be witnessed and notarized by a circulator. However, in 2021, the city of Boulder, Colorado, approved a charter amendment allowing online petitioning, eliminating the need for circulators.
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State delegation to local election authorities
The Elections Clause in Article I of the U.S. Constitution gives states the power to set the "Times, Places, and Manner" of congressional elections. This includes the authority to create rules concerning public notices, voter registration, voter protection, fraud prevention, vote counting, and the determination of election results.
State legislatures and ballot measures create many of the rules governing ballot access, voter registration, and vote counting. At the local level, county governments are typically responsible for election administration, and states can delegate certain decisions to these local election authorities. For example, while states set standards for voting technology, they may leave the choice of specific voting machines to local officials.
The U.S. 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 by a state's actual legislature or directly by its voters through initiatives or referendums, in states that allow these procedures.
In Arizona v. Inter Tribal Council of Arizona (2013), the Supreme Court described Congress's power to regulate federal elections as "paramount," allowing it to displace state law at will. This power acts as a safeguard against potential state abuse of authority in regulating federal elections.
Since 2020, at least 15 states have passed 33 election interference laws, and at least 31 interference laws in 14 states will be in effect for a presidential election for the first time. However, pro-voter legislators are also seeking to expand access, with at least 21 states enacting 32 expansive laws in 2024.
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State laws and election interference
In the United States, election rules vary across states, with state legislatures and ballot measures creating many of the rules governing ballot access, voter registration, and vote counting. This is because the Elections Clause in Article I of the U.S. Constitution grants states the authority to establish the "Times, Places, and Manner" of congressional elections. This clause has been interpreted to allow states to create rules concerning public notices, voter registration, voter protection, fraud prevention, vote counting, and determining election results.
However, it is important to note that federal courts play a role in regulating election rules, particularly when it comes to safeguarding the integrity and regularity of the election process. For example, the U.S. Supreme Court has ruled on the issue of apparel restrictions at polling places, stating that while some restrictions on voter apparel are permissible, blanket prohibitions are not allowed as they are too vague. Additionally, federal laws regarding campaign contribution limits, accessibility, and election protection are in place to help secure voting rights and the election process.
State laws play a crucial role in preventing election interference, which refers to efforts to illegitimately change the outcome of an election. Election interference can take many forms, including electoral fraud, vote buying, voter impersonation, foreign electoral intervention, illegal electioneering, and the use of public funds to influence voters. To combat these issues, states have implemented various electioneering laws that regulate behavior near polling places on election day. For instance, many states prohibit wearing campaign apparel, displaying campaign materials, influencing voters, or engaging in political persuasion within a certain distance of polling stations. These laws aim to create a neutral voting environment and protect the integrity of the election process.
Additionally, media influence is a significant factor in elections, and laws are in place to ensure transparency and accountability in political advertising. Campaign disclosure laws require that identifying information about the sponsors of political advertisements, including their names and addresses, be made available to the public. This helps to hold those funding political campaigns accountable and provides transparency in the election process.
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Frequently asked questions
Yes, the Elections Clause in Article I of the U.S. Constitution gives states the power to set the "Times, Places, and Manner" of congressional elections.
Yes, states can delegate certain decisions to local election authorities, creating more variation in election processes.
Yes, the Elections Clause holds that any laws Congress may pass regulating congressional elections would preempt state law. Congress can displace state law at will.
No, the U.S. Supreme Court has distinguished state laws that go beyond protecting the integrity and regularity of the election process. For example, laws that disadvantage a particular class of candidates are not allowed.
State legislatures and ballot measures create the rules governing ballot access, voter registration, and vote counting.
