Democratic lawmakers have recently proposed H.R.1 – The For the People Act in the United States Congress. The goal of this almost 900-page monolith proposal is to implement broad-ranging election reform intended to increase voter access. While the bill is too large to discuss all of its contents, notable headlines examined in this article include provisions like Section 1012 which forces all states to automatically register eligible voters, Section 1031 which mandates that each state allow same-day registration, Section 1903 which creates a loophole to multiple states’ voter ID laws by instead allowing voters to provide a signed statement when they don’t have their ID, Sections 1907 and 1908 which dictate how states can collect ballots, and Section 2401 which requires states to appoint independent commissions that conduct redistricting, in theory eliminating gerrymandering.
On the other side of the aisle, Republicans ridicule the bill as a “federal takeover of the election process.” Among these criticisms, Republicans argue that H.R.1 is unconstitutional because it violates the Electors and Elections Clauses in the U.S. Constitution. As of the publishing of this article, the bill has passed the House and is sitting on the desk of the Senate in anticipation of what is likely to be a long-drawn-out political battle. However, setting aside the political arguments of both sides, Republican’s legal concerns remain legitimate: is H.R.1 constitutional?
The Elections and Electors Clauses in the Constitution
The election system in the United States is built upon the concept of federalism. Federalism is the underlying principle in American democracy which states that certain powers are reserved for the federal government and other specific powers solely for the states. The Framers used this conception of federalism when they outlined the entire election process in two specific provisions in the Constitution. The Framers wanted an election process that was free and independent of the federal government but also recognized the federal government’s need to oversee a process in which the federal government exists upon.
Consequently, the Framers used the conception of federalism when they afforded individual states primary control and the federal government a secondary advisory power to control the elections process in two specific provisions in the Constitution. In Article I, Section 4, Clause 1, what has become commonly known as the Elections Clause, the Constitution details that “the Times, Places and Manner of holding Elections… shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” In Article II, Section 1, what has become commonly known as the Electors Clause, the Constitution among other provisions details that “each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors… [However,] the Congress may determine the time of choosing the electors, and the day on which they shall give their votes.”
Needless to say, due to the vague and ambiguous language of these two clauses, the Constitution alone cannot answer the question of if H.R.1 is constitutional. Instead in the absence of constitutional guidance, various court cases and case precedent can better explain these two sections in the Constitution and how the courts interpret them in light of modern-day electoral issues.
Case Law and Precedent
To be entirely clear, the legal questions raised by H.R.1 are entirely novel and there is no prior case law to consult. Mere observers may cite a multitude of election-related cases whose precedents can apply H.R.1. Most notably, these individuals may point to Shelby County v. Holder (2013), where the Supreme Court invalidated several sections of the historic Voting Rights Act of 1965. Almost all of these cases including Shelby, however, are not authoritative because these cases involved race-based federal laws that were imposed through the 14th and 15th Amendments. Since the various provisions in H.R.1 are more broad-ranging election reforms that have little race-based intentions, these provisions cannot be applied through the 14th and 15th Amendments and solely involve the Electors and Elections clauses.
Instead, cases that directly address the Electors and Elections clauses may be more useful than Shelby. In one such case, McPherson v. Blacker (1892), the Supreme Court upheld a Michigan law that apportioned presidential electors by individual district instead of the typical winner take all format. In its opinion, the Court found that the Electors Clause “leaves it to the [state] legislature exclusively to define the method” of apportionment. Under the precedent set in McPherson, the contents of H.R.1 would unmistakably be an unconstitutional violation of the Electors Clause since only the states have the power to regulate elections.
On the other hand, in Burroughs v. United States (1934), the Supreme Court took a completely different approach to electioneering powers when it affirmed Congress’ authority to impose campaign finance laws. Although the Elections Clause grants the states’ primary authority to regulate elections, “[the federal government] must have the power to protect the elections on which its existence depends from violence and corruption.” According to the Supreme Court in Burroughs, the Elections Clause provides a role for federal oversight in laws like H.R.1 when that oversight is essential to the free and fair nature of the federal government itself.
In even more complex precedent, in first New York v United States (1992) and later Printz v. United States (1997) the Supreme Court established the anti-commandeering doctrine which holds that “[t]he Federal Government may neither issue directives . . . nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program,” absent the constitutional right to enforce these programs. Essentially, the federal government cannot force states to do anything that the states are not constitutionally mandated to do. Although at first glance the anti-commandeering doctrine seems to render H.R.1 unconstitutional, several scholars have noted various exceptions to the anti-commandeering doctrine with specific regard to the Elections Clause. The Elections Clause provides Congress a role, although secondary, in the regulation of elections. And therefore, Congress cannot reasonably be interpreted as commandeering state-run elections in H.R.1 if it is already given a role in them.
In what is perhaps the most recent precedent concerning H.R.1, Rucho v. Common Cause (2019), the Court determined that it cannot decide if partisan gerrymandering is unconstitutional since it is a political issue that cannot be resolved by the judicial branch, a legal concept called “nonjusticiability.” To many scholars, Rucho seemed to affirm the Court’s holding in McPherson when it wrote that the Constitution “assigned the issue [of redistricting] to the state legislatures.” Some legal scholars, however, have noted what seems to be a more nuanced opinion by the current Supreme Court, pointing to an anecdote by Chief Justice John Roberts. In this anecdote, Roberts wrote, “the Framers gave Congress the power to do something about partisan gerrymandering in the Elections Clause.” Roberts even went so far as to cite a previous iteration of H.R.1 as a potential remedy to partisan gerrymandering. Although the Court cannot delve into issues of a political nature that are left up to the states, the Court certainly does not seem to want to limit Congress in a similar nature.
Conclusion Ultimately, while the impending political debate over H.R.1 – The For the People Act will likely capture national headlines in the months to come, the legal questions that H.R.1 raises are likewise crucial, deeply rooted issues that involve the heart of our democratic ideals. Although Democrats can assert absolute claims about the constitutionality of H.R.1, Republican’s constitutional concerns about H.R.1 are not unfounded. Precedent from McPherson and Printz, certainly indicate that the states, not the federal government, have the primary power to regulate elections. On the other hand, more recent cases like Burroughs and Rucho suggest that the Court may leave the question entirely up to Congress since elections are an essential element of any functioning democracy. In light of the Court’s recent and foreseeable conservative breakdown, a straightforward prediction on how the Court may find is largely impossible to make. Nevertheless, if H.R.1 continues its current legislative path through the Senate, its implications will undoubtedly leave an indelible mark on not just the political but the legal sphere as well.