Re: VotersUnite Proposals for new Holt Legislation

From: Joseph Lorenzo Hall <joehall_at_gmail_dot_com>
Date: Fri Nov 24 2006 - 12:03:11 CST

On 11/23/06, Ron Crane <> wrote:
> The general argument here is as to Presidential elections, whose conduct
> Art.II s.1 gives to the States, "in such manner as the Legislature[s]
> thereof may direct." But I don't think that argument stands against Art.5 of
> the 14th Amendment, which gives Congress "power to enforce, by appropriate
> legislation, the provisions of this article," which provisions include the
> Equal Protection clause.

Considering I was just studying this, let me lay the jurisprudential
background out...

Congress has explicit authority to regulate congressional elections
and a "broad implicit authority" to regulate presidential elections.

In addition to Art. 1, Section IV, clause 1 there are a number of
important Supreme Court decisions here; two for congressional election
regulation (Smiley v. Holm, 285 U.S. 355 (1932); U.S. Term Limits,
Inc. v. Thornton, 514 U.S. 799, 832-833 (1995)) and one for
presidential election regulation (Burroughs and Cannon v. United
States, 290 U.S. 534, 544-545 (1934)).

## Congressional power over congressional elections

In Smiley, the Court was presented with the question of what does the
text of Art. 1, Sec. IV, cl. 1 actually mean. It found that the U.S.
Congress has full supervisory power over congressional elections
(Smiley at 366-367):

"[T]he second clause of article 1, 4, [provides] that 'the Congress
may at any time by law make or alter such regulations,' with the
single exception stated. The phrase 'such regulations' plainly refers
to regulations of the same general character that the legislature of
the State is authorized to prescribe with respect to congressional
elections. In exercising this power, the Congress may supplement these
state regulations or may substitute its own. It may impose additional
penalties for the violation of the state laws or provide independent
sanctions. It 'has a general supervisory power over the whole

In Thornton, the voters of Arkansas passed a constitutional amendment
that altered the qualifications for AK representatives to the US.
House. That was found to be unconstitutional as the constitution
prohibits states from adopting additional or conflicting

## Congressional power over presidential elections

As to power over regulating presidential elections, Burroughs
recognized that Congress' power to regulate presidential elections was
implicit compared with the powers over congressional regulations.

For presidential elections, the constitution explicitly gives states
the power to choose electors and the manner that they're elected, and
gives Congress the power for choosing the time and day of the election
(with the day being the same throughout the U.S.). However, the Court
said reading Congress' powers as being that narrow is "without
warrant" and that there is a certain amount of regulation that
Congress must be able to engage in over Presidential elections. They
need to be able to protect the process and integrity of that election
especially because states are be poorly positioned to do so or would
necessarily do so inadequately.

In short, the constitution implicitly gives this power (Burroughs at 545):

"The importance of his election and the vital character of its
relationship to and effect upon the welfare and safety of the whole
people cannot be too strongly stated. To say that Congress is without
power to pass appropriate legislation to safeguard such an election
from the improper use of money to influence the result is to deny to
the nation in a vital particular the power of self-protection.
Congress, undoubtedly, possesses that power, as it possesses every
other power essential to preserve the departments and institutions of
the general government from impairment or destruction, whether
threatened by force or by corruption."

and that how Congress chooses to regulate presidential elections is
solely withing their judgment (from 547-548):

"The power of Congress to protect the election of President and Vice
President from corruption being clear, the choice of means to that end
presents a question primarily addressed to the judgment of Congress.
If it can be seen that the means adopted are really calculated to
attain the end, the degree of their necessity, the extent to which
they conduce to the end, the closeness of the relationship between the
means adopted, and the end to be attained, are matters for
congressional determination alone."


> I doubt, however, that this point has been directly litigated, and there
> are some political reasons why Congress might hesitate directly to prescribe
> which voting systems states must use. There are also some reasons why we
> should fear Congress's exercise of such a power.
> -R
> Danny Swarzman wrote:
> Article 1 Section 4
> The Times, Places and Manner of holding Elections for Senators and
> Representatives, shall be prescribed in each State by the Legislature
> thereof; but the Congress may at any time by Law make or alter such
> Regulations, except as to the Place of Chusing Senators.
> Doesn't this mean that the Congress has the power to mandate anything it
> wants?
> On Nov 23, 2006, at 7:19 AM, Kathy Dopp wrote:
> #3 while I agree 100% that electronic ballot voting systems should be
> instantly dumped, it is a violation of the US constitution to mandate
> particular voting systems which is why the 2002 HAVA law did not mandate any
> particular voting equipment, but rather only provided funding for certain
> types of voting equipment, including unfortunately DREs. If you want to
> eliminate DREs, you must only fund paper ballot systems, not outlaw DREs.
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Joseph Lorenzo Hall
PhD Student, UC Berkeley, School of Information
OVC-discuss mailing list
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Received on Thu Nov 30 23:17:12 2006

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