Constitution of the United States/Art. I/Sec. 4/Clause 1 Elections Clause

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Constitutional Law Outline
Introduction
The Preamble
Article I Legislative Branch
Art. I, Section 1 Legislative Vesting Clause
Art. I, Section 2 House of Representatives
Art. I, Section 3 Senate
Art. I, Section 4 Congress
Art. I, Section 5 Proceedings
Art. I, Section 6 Rights and Disabilities
Art. I, Section 7 Legislation
Art. I, Section 8 Enumerated Powers
Art. I, Section 9 Powers Denied Congress
Art. I, Section 10 Powers Denied States
Article II Executive Branch
Art. II, Section 1 Function and Selection
Art. II, Section 2 Powers
Art. II, Section 3 Duties
Art. II, Section 4 Impeachment
Article III Judicial Branch
Art. III, Section 1 Vesting Clause
Art. III, Section 2 Justiciability
Art. III, Section 3 Treason
Article IV Relationships Between the States
Art. IV, Section 1 Full Faith and Credit Clause
Art. IV, Section 2 Interstate Comity
Art. IV, Section 3 New States and Federal Property
Art. IV, Section 4 Republican Form of Government
Article V Amending the Constitution
Article VI Supreme Law
Article VII Ratification
First Amendment: Fundamental Freedoms
Religion
Establishment Clause
Free Exercise Clause
Free Speech Clause
Freedom of Association
Second Amendment: Right to Bear Arms
Third Amendment: Quartering Soldiers
Fourth Amendment: Searches and Seizures
Fifth Amendment: Rights of Persons
Sixth Amendment: Rights in Criminal Prosecutions
Seventh Amendment: Civil Trial Rights
Eighth Amendment: Cruel and Unusual Punishment
Ninth Amendment: Unenumerated Rights
Tenth Amendment: Rights Reserved to the States and the People
Eleventh Amendment: Suits Against States
Twelfth Amendment: Election of President
Thirteenth Amendment: Abolition of Slavery
Thirteenth Amend., Section 1 Prohibition on Slavery and Involuntary Servitude
Thirteenth Amend., Section 2 Enforcement
Fourteenth Amendment: Equal Protection and Other Rights
Fourteenth Amend., Section 1 Rights
Fourteenth Amend., Section 2 Apportionment of Representation
Fourteenth Amend., Section 3 Disqualification from Holding Office
Fourteenth Amend., Section 4 Public Debt
Fourteenth Amend., Section 5 Enforcement
Fifteenth Amendment: Right of Citizens to Vote
Fifteenth Amend., Section 1 Right to Vote
Fifteenth Amend., Section 2 Enforcement
Sixteenth Amendment: Income Tax
Seventeenth Amendment: Popular Election of Senators
Eighteenth Amendment: Prohibition of Liquor
Eighteenth Amend., Section 1 Prohibition
Eighteenth Amend., Section 2 Enforcement of Prohibition
Eighteenth Amend., Section 3 Ratification Deadline
Nineteenth Amendment: Women's Suffrage
Twentieth Amendment: Presidential Term and Succession
Twentieth Amend., Section 1 Terms
Twentieth Amend., Section 2 Meetings of Congress
Twentieth Amend., Section 3 Succession
Twentieth Amend., Section 4 Congress and Presidential Succession
Twentieth Amend., Section 5 Effective Date
Twentieth Amend., Section 6 Ratification
Twenty-First Amendment: Repeal of Prohibition
Twenty-First Amend., Section 1 Repeal of Eighteenth Amendment
Twenty-First Amend., Section 2 Importation, Transportation, and Sale of Liquor
Twenty-First Amend., Section 3 Ratification Deadline
Twenty-Second Amendment: Presidential Term Limits
Twenty-Second Amend., Section 1 Limit
Twenty-Second Amend., Section 2 Ratification Deadline
Twenty-Third Amendment: District of Columbia Electors
Twenty-Third Amend., Section 1 Electors
Twenty-Third Amend., Section 2 Enforcement
Twenty-Fourth Amendment: Abolition of Poll Tax
Twenty-Fourth Amend., Section 1 Poll Tax
Twenty-Fourth Amend., Section 2 Enforcement
Twenty-Fifth Amendment: Presidential Vacancy
Twenty-Fifth Amend., Section 1 Presidential Vacancy
Twenty-Fifth Amend., Section 2 Vice President Vacancy
Twenty-Fifth Amend., Section 3 Declaration by President
Twenty-Fifth Amend., Section 4 Declaration by Vice President and Others
Twenty-Sixth Amendment: Reduction of Voting Age
Twenty-Sixth Amend., Section 1 Eighteen Years of Age
Twenty-Sixth Amend., Section 2 Enforcement
Twenty-Seventh Amendment: Congressional Compensation

Article I Legislative Branch

Section 4 Congress

Clause 1 Elections Clause

Clause Text
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 Places of chusing Senators.

Historical Background on Elections Clause[edit | edit source]

The Elections Clause gives state legislatures authority over Senate and House elections but allows Congress to regulate such elections and thereby override state election laws.[1] The only exception to Congress's authority over state elections--"the Places of chusing Senators"--became a nullity when the Seventeenth Amendment superseded Article I, Section 3, Clause 1, by providing for Senators to be elected by popular votes rather than selected by state legislatures.[2] How state and federal regulation of Senate and House elections interplay has been a topic of significant interest throughout the nation's history.

During the Constitution's ratification, the proposal to allow Congress to set aside state laws for electing Senators and Representatives was controversial.[3] In his Commentaries on the Constitution of the United States, Justice Joseph Story summarized state concerns that were raised during the ratification process. He stated:

Congress might prescribe the times of election so unreasonably, as to prevent the attendance of the electors; or the place at so inconvenient a distance from the body of the electors, as to prevent a due exercise of the right of choice. And congress might contrive the manner of holding elections, so as to exclude all but their own favourites from office. They might modify the right of election as they please; they might regulate the number of votes by the quantity of property, without involving any repugnancy to the constitution.Joseph Story, Commentaries on the Constitution of the United States § 814 (1833).

In contrast to state concern over the ability of Congress to legislate how states would hold congressional elections, Alexander Hamilton, in the Federalist No. 59, reasoned that unless Congress had authority to regulate Senate and House elections, state legislatures might "at any moment annihilate [the U.S. Government], by neglecting to provide for the choice of persons to administer its affairs."[4] Noting that the Elections Clause gave state legislatures primary power over Senate and House elections, Hamilton took the position that Congress would likely involve itself in congressional elections only if "extraordinary circumstances might render that interposition necessary to [the U.S. Government's] safety."[5] Echoing Hamilton's expectation that only "extraordinary circumstances" would involve Congress in regulating House and Senate elections, Justice Story reasoned that, as representatives of states and their people, Members of Congress would be reluctant to impose election laws on objecting states.[6]

States and Elections Clause[edit | edit source]

By its terms, Article I, Section 4, Clause 1, referred to as the Elections Clause, contemplates that state legislatures will establish the times, places, and manner of holding elections for the House of Representatives and the Senate, subject to Congress making or altering such state regulations (except as to the place of choosing Senators).[7] The Supreme Court has interpreted the Elections Clause expansively, enabling states "to provide a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns."[8] The Court has further recognized the states' ability to establish sanctions for violating election laws[9] as well as authority over recounts[10] and primaries.[11] The Elections Clause, however, does not govern voter qualifications, which under Article I, Section 2, Clause 1, and the Seventeenth Amendment must be the same as the "Qualifications requisite for Electors of the most numerous Branch of the State Legislatures."[12] Similarly, the authority of states to establish the "Times, Places and Manner of holding Elections for Senators and Representatives" does not include authority to impose additional qualification requirements to be a Member of the House of Representatives or a Senator, which are governed by the Constitution's Qualification Clauses at Article I, Section 2, Clause 2 for Members of the House and at Article I, Section 3, Clause 3 for the Senate.[13]

State authority to regulate the times, places, and manner of holding congressional elections has been described by the Court as the ability "to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental rights involved."[14] The Court has upheld a variety of state laws designed to ensure that elections are fair and honest and orderly.[15] But the Court distinguished state laws that go beyond "protection of the integrity and regularity of the election process," and instead operate to disadvantage a particular class of candidates[16] or negate the need for a general election.[17] The Court noted that the Elections Clause does not allow states to set term limits, which the Court viewed as "disadvantaging a particular class of candidates and evading the dictates of the Qualifications Clause,"[18] or ballot labels identifying candidates who disregarded voters' instructions on term limits or declined to pledge support for them.[19] In its 1995 decision in U.S. Term Limits v. Thornton, the Court explained: "[T]he Framers understood the Elections Clause as a grant of authority to issue procedural regulations, and not as a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints."[20]

The Supreme Court has held that Article I, Section 4, Clause 1, provides for Congress, not the courts, to regulate how states exercise their authority over Senate and House elections,[21] although courts may hear cases concerning claims of one-person, one-vote violations and racial gerrymandering.[22] For example, in its 2019 Rucho v. Common Cause decision, the Court held that partisan gerrymandering claims--claims that one political party has gerrymandered congressional districts to the disadvantage of the other party--are not justiciable by courts because "the only provision in the Constitution [Article I, Section 4, Clause 1] that specifically addresses the matter assigns it to the political branches"[23] and such claims present political questions--"outside the courts' competence and therefore beyond the courts' jurisdiction"--that are not for courts to decide.[24] Although noting that the "districting plans at issue here are highly partisan, by any measure,"[25] the Rucho Court observed that partisan gerrymandering claims raise particular problems for courts to adjudicate. First, the Court noted that the Framers had expected partisan interests to inform how states drew district lines.[26] Consequently, the Court reasoned that the problem is not whether partisan gerrymandering has occurred but when it has "gone too far."[27] Second, the Court observed that there is no obvious standard by which to assess whether a partisan gerrymander has gone too far.[28] The Court stated: "The initial difficulty in settling on a 'clear manageable and politically neutral' test for fairness is that it is not even clear what fairness looks like in this context. There is a large measure of 'unfairness' in any winner-take-all system."[29] The Court in Rucho further emphasized that it did not condone partisan gerrymanders but that Congress is constitutionally authorized to address the issue.[30] Likewise, in Husted v. A. Philip Randolph Institute, the Court upheld a state law providing for removing voters from voting roles based on indicators that they had moved, noting, among other things, that the state law was consistent with federal law and that the Court had "no authority to dismiss the considered judgment of Congress and the Ohio Legislature regarding the probative value of a registrant's failure to send back a return card."[31]

In its 2023 Moore v. Harper decision, the Supreme Court held that the Elections Clause, in Article I, Section 4 of the U.S. Constitution, does not protect a state legislature from a state court reviewing whether the state legislature's exercise of its Election Clause authority is consistent with its state constitution.[32] Rejecting an argument that the Elections Clause insulated state legislatures from the "ordinary exercise of state judicial review," [33] the Court observed: "State courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause."[34] The Court, however, cautioned that state court power to review state rules regarding "[t]he Times, Places and Manner of holding Elections for Senators and Representatives" was limited to "the ordinary bounds of judicial review" and that state courts should not "arrogate to themselves the power vested in state legislatures to regulate federal elections."[35]

The Court addressed what constitutes regulation by a state "Legislature" for purposes of the Elections Clause in its 2015 decision in Arizona State Legislature v. Arizona Independent Redistricting Commission.[36] There, the Court rejected the Arizona legislature's challenge to the validity of the Arizona Independent Redistricting Commission (AIRC) and AIRC's 2012 map of congressional districts.[37] The Commission had been established by a 2000 ballot initiative, which removed redistricting authority from the legislature and vested it in the AIRC.[38] The legislature asserted that this arrangement violated the Elections Clause because the Clause contemplates regulation by a state "Legislature" and "Legislature" means the state's representative assembly.[39]

The Court disagreed and held that Arizona's use of an independent commission to establish congressional districts is permissible because the Elections Clause uses the word "Legislature" to describe "the power that makes laws," a term that is broad enough to encompass the power provided by the Arizona constitution for the people to make laws through ballot initiatives.[40] In so finding, the Court noted that the word "Legislature" has been construed in various ways depending upon the constitutional provision in which it is used, and its meaning depends upon the function that the entity denominated as the "Legislature" is called upon to exercise in a specific context.[41] Here, in the context of the Elections Clause, the Court found that the function of the "Legislature" was lawmaking and that this function could be performed by the people of Arizona via an initiative consistent with state law.[42] The Court also pointed to dictionary definitions from the time of the Framers;[43] the Framers' intent in adopting the Elections Clause;[44] the "harmony" between the initiative process and the Constitution's "conception of the people as the font of governmental power;"[45] and the practical consequences of invalidating the Arizona initiative.[46]

Congress and Elections Clause[edit | edit source]

Known as the Elections Clause, Article I, Section 4, Clause 1 provides for Congress and state legislatures to regulate the "Times, Places and Manner of holding elections for Senators and Representatives."[47] Under the Elections Clause, each state establishes how it will hold congressional elections, subject to Congress adopting or altering the state requirements (except as to the place of choosing Senators).[48] The Elections Clause's "Times, Places and Manner" encompasses "a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns."[49] States and Congress may also establish sanctions for violating election laws[50] and procedures for recounts[51] and primaries.[52] The Elections Clause however, does not permit states or Congress to set voter qualifications for congressional elections, which, under the Constitution, must be the same qualifications necessary to vote for the most numerous branch of the state legislature.[53] Likewise, the Elections Clause does not allow states or Congress to change the qualifications to be a Member of the House of Representatives or the Senate, which are stipulated at Article I, Section 2, Clause 2 for the House and Article I, Section 3, Clause 3 for the Senate.[54]

By providing Congress power to preempt state election procedures, the Framers sought to prevent states from thwarting the Federal Government's operation by using state law to manipulate or preclude elections for the House of Representatives.[55] For example, during the Constitutional Convention Gouverneur Morris of Pennsylvania expressed concern that "the States might make false returns and then make no provision for new elections,"[56] while Alexander Hamilton observed in the Federalist Papers that "Nothing can be more evident than that an exclusive power of regulating elections for the national government, in the hands of the State legislatures, would leave the existence of the Union entirely at their mercy."[57] Despite the Elections Clause providing Congress power to preempt state law governing elections, Congress did not exercise this power until 1842 when it passed a law requiring that Representatives be elected on a district basis.[58] Congress subsequently added contiguity, compactness, and substantial equality of population to districting requirements.[59]

In the Court's 1997 decision, Foster v. Love, the Supreme Court affirmed a lower court decision that, under the Elections Clause, federal law preempted a Louisiana statute governing congressional elections.[60] The Foster Court noted that while states can prescribe regulations governing the "Times, Places and Manner" of holding elections, "Congress may at any time by Law make or alter such Regulations."[61] The Court stated:

The [Elections] Clause is a default provision; it invests the States with responsibility for the mechanics of congressional elections but only so far as Congress declines to pre-empt state legislative choices. Thus, it is well settled that the Elections Clause grants Congress 'the power to override state regulations' by establishing uniform rules for federal elections, binding on the States. 'The regulations made by Congress are paramount to those made by the State legislature; and if they conflict therewith, the latter so far as the conflict extends, ceases to be operative.'Id.

Under its Elections Clause authority, Congress has passed laws that govern how state election systems may operate.[62] For example, in Arizona v. Inter Tribal Council of Arizona, the Court held that the National Voter Registration Act of 1993, which required states to use a specific federal form to register voters for federal elections, preempted an Arizona law that imposed an additional evidence-of-citizenship requirement.[63] The Arizona Court further noted that state authority to regulate congressional elections is less than its general police powers because the Constitution provides expressly for state law governing elections to be preempted by federal law. The Court stated: "Unlike the States' 'historic police powers,' the States' role in regulating congressional elections--while weighty and worthy of respect--has always existed subject to the express qualification that 'it terminates according to federal law.'"[64]

The Court has also held that where a primary election is an integral part of choosing a Member of Congress, the right to vote in that primary election is subject to congressional protection[65] and includes the opportunity to cast a ballot and to have it counted honestly.[66] Congress may secure elections from personal violence and intimidation as well as from failures to count ballots lawfully cast[67] or the stuffing of ballot boxes with fraudulent ballots.[68] Congress may also enforce election laws by imposing sanctions[69] or punish state election officers for violating legal duties relating to congressional elections.[70] But the Court has held that bribing voters, although within Congress's power under other clauses of the Constitution, does not implicate the Elections Clause.[71] Finally, the Court has recognized that because the Elections Clause specifically vests Congress and the states with authority over the "Time, Places and Manner" of congressional elections, the Court's authority over such matters is limited.[72]

  1. In 1842, Congress passed its first legislation to regulate House and Senate elections by establishing the district system for House elections. Act of June 25, 1842, ch. 47, § 2, 5 Stat. 491. Later legislation provided that Representatives "be elected by districts composed of a compact and contiguous territory and containing as nearly as practicable an equal number of inhabitants." See, e.g., Act of Aug. 8, 1911, ch. 5, 37 Stat. 13.
  2. Seventeenth Amendment Popular Election of Senators. Congress's authority to regulate elections did not extend to where state legislatures would choose the Senators, because, at that time, the choice of senators belonged solely to the state legislatures. See also Joseph Story, Commentaries on the Constitution of the United States § 826 (1833) ("The choice is to be made by the state legislature; and it would not be either necessary, or becoming in congress to prescribe the place, where it should sit.").
  3. The Federalist No. 59 (Alexander Hamilton) ("This provision has not only been declaimed against by those who condemn the Constitution in the gross, but it has been censured by those who have objected with less latitude and greater moderation; and, in one instance it has been thought exceptionable by a gentleman who has declared himself the advocate of every other part of the system.").
  4. The Federalist No. 59 (Alexander Hamilton).
  5. Id.
  6. See Joseph Story, Commentaries on the Constitution of the United States § 818 (1833) ("Who are to pass the laws for regulating elections? The congress of the United States, composed of a senate chosen by the state legislatures, and of representatives chosen by the people of the states. Can it be imagined, that these persons will combine to defraud their constituents of their rights, or to overthrow the state authorities, or the state influence?").
  7. Art. I, Sec. 4, Clause 1 Elections Clause. See Foster v. Love, 522 U.S. 67, 69 (1997) ("[I]t is well settled that the Elections Clause grants Congress 'the power to override state regulations' by establishing uniform rules for federal elections binding on the States.'" (quoting U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 832-33 (1995))).
  8. Smiley v. Holm, 285 U.S. 355, 366 (1932)
  9. Id. at 369.
  10. Roudebush v. Hartke, 405 U.S. 15, 24, 25 (1972).
  11. United States v. Classic, 313 U.S. 299, 320 (1941).
  12. Art. I, Sec. 2, Clause 1 Composition; Seventeenth Amendment Popular Election of Senators. See also Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 17 (2013) ("Prescribing voting qualifications, therefore, 'forms no part of the power to be conferred upon the national government' by the Elections Clause, which is 'expressly restricted to the regulation of the times, the places, and the manner of elections.'" (quoting The Federalist No. 60 (Alexander Hamilton))).
  13. Art. I, Sec. 2, Clause 2 Qualifications; U.S. Const. art. I, § 3, cl. 3. See United States Term Limits v. Thornton, 514 U.S. 779 (1995)
  14. Smiley v. Holm, 285 U.S. 355, 366 (1932).
  15. See, e.g., Storer v. Brown, 415 U.S. 724 (1974) (restrictions on independent candidacies requiring early commitment prior to party primaries); Roudebush v. Hartke, 405 U.S. 15, 25 (1972) (recount for Senatorial election); Munro v. Socialist Workers Party, 479 U.S. 189 (1986) (requirement that minor party candidate demonstrate substantial support--1% of votes cast in the primary election--before being placed on ballot for general election). The Court, however, has held that courts should not modify election rules if the election is imminent and "'[n]o bright line separates permissible election-related regulation from unconstitutional infringements.'" Purcell v. Gonzalez, 549 U.S. 1, 5 (2006) (per curiam) (quoting Timmons v. Twin Cities Area New Party, 520 U.S. 351, 359 (1997)). In Purcell v. Gonzalez, the Court observed that "the imminence of the election and the inadequate time to resolve the factual disputes" required the Court to "of necessity allow the election to proceed without an injunction suspending the voter identification rules." Purcell, 549 U.S. at 5-6. See also Republican Nat'l Comm. v. Democratic Nat'l Comm., No. 19A1016, slip op. (U.S. Apr. 2020) (per curiam) (noting that "lower federal courts should ordinarily not alter the election rules on the eve of the election") (citing Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam); Frank v. Walker, 574 U.S. 929 (2014); Veasey v. Perry, 574 U.S. 951 (2014)).
  16. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 835 (1995)
  17. Foster v. Love, 522 U.S. 67, 69 (1997) (explaining that the Elections Clause "is a default provision; it invests the State with responsibility for the mechanics of congressional elections, but only so far as Congress declines to preempt state legislative choices"); see id. at 74 (holding that a Louisiana statute that deemed the winner of the primary to be the winner of the general election void and preempted by federal law which set the date of the election for federal offices).
  18. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 832 (1995) ("Petitioners make the related argument that Amendment 73 merely regulates the "Manner" of elections and that the amendment is therefore a permissible exercise of state power under Article I, Section 4, Clause 1 (the Elections Clause) to regulate the "Times, Places and Manner" of elections. We cannot agree.").
  19. Cook v. Gralike, 531 U.S. 510 (2001).
  20. Thornton, 514 U.S. at 833-34. See also Burdick v. Takushi, 504 U.S. 428, 433 (1992) (states have an interest in "seeking to assure that elections are operated equitably and efficiently"); Tashjian v. Republican Party of Conn., 479 U.S. 208, 217 (1986) ("the power to regulate the time, place, and manner of elections does not justify, without more, the abridgment of fundamental rights."); Anderson v. Celebrezze, 460 U.S. 780, 788 n.9 (1983) (states may adopt "generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself.").
  21. Rucho v. Common Cause, No. 18-422, slip op. (U.S. June 2019). See also Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1 (2013); Ex parte Siebold, 100 U.S. 371, 392 (1880) ("The power of Congress . . . is paramount, and may be exercised at any time, and to any extent which it deems expedient.").
  22. Shaw v. Reno, 509 U.S. 630 (1993); see also Wesberry v. Sanders, 376 U.S. 1 (1964); Wright v. Rockefeller, 376 U.S. 52 (1964); Baker v. Carr, 369 U.S. 186 (1962); Gomillion v. Lightfoot, 364 U.S. 339 (1960); Colegrove v. Green, 328 U.S. 549 (1946); Wood v. Broom, 287 U.S. 1 (1932).
  23. Rucho v. Common Cause, No. 18-422, slip op. at 29 (U.S. June 2019).
  24. Id. at 7. The Court observed that "[a]mong the political question cases the Court has identified are those that lack 'judicially discoverable and manageable standards for resolving [them].'" Id. (quoting Baker v. Carr, 369 U.S. 186 (1962)); see also id. ("This Court's authority to act . . . 'is grounded in and limited by the necessity of resolving according to legal principles, a plaintiff's particular claim of legal right.' The question here is whether there is an 'appropriate role for the Federal Judiciary' in remedying the problem of partisan gerrymandering--whether such claims are claims of legal right, resolvable according to legal principles, or political questions that must find their resolution elsewhere." (quoting Gill v. Whitford, No. 16-1161, slip op. at 8, 13 (U.S. June 2018))).
  25. Id. at 2.
  26. Id. at 12.
  27. Id. at 13 (citing Vieth v. Jubelirer, 541 U.S 267, 296 (2004) (plurality opinion)). See also Hunt v. Cromartie, 526 U.S. 541, 555 (1999) ("Our prior decisions have made clear that a jurisdiction may engage in constitutional political gerrymandering . . . .").
  28. Id. see also Vieth v. Jubelirer, 541 U.S. 267 (2004); Davis v. Bandemer, 478 U.S. 109 (1986);Gaffney v. Cummings, 412 U.S. 735 (1973)). In Gill v. Whitford, the Court observed that "this Court is not responsible for vindicating generalized partisan preferences. The Court's constitutionally prescribed role is to vindicate the individual rights of the people appearing before it." Gill v. Whitford, No. 16-1161, slip op. at 21 (U.S. June 2018).
  29. Rucho, slip op. at 17; see also Vieth, 541 U.S. at 291 ("'Fairness' does not seem to us a judicially manageable standard. . . . Some criterion more solid and more demonstrably met than [fairness] seems to us necessary to enable the state legislatures to discern the limits of their districting discretion, to meaningfully constrain the discretion of the courts, and to win public acceptance for the courts' intrusion into a process that is the very foundation of democratic decisionmaking.").
  30. Rucho, slip op. at 9 ("Congress has regularly exercised its Elections Clause power, including to address partisan gerrymandering.").
  31. Husted v. A. Philip Randolph Inst., No. 16-960, slip op. at 25, 26 (U.S. June 11, 2018).
  32. Moore v. Harper,, No. 21-1271 (U.S. June 27, 2023).
  33. Id. at 15.
  34. Id. at 29.
  35. Id. The Court further stated: "In interpreting state law in this area, state courts may not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures by Article I, Section 4, of the Federal Constitution. Because we need not decide whether that occurred in today's case, the judgment of the North Carolina Supreme Court is affirmed." Id. at 30.
  36. No. 13-1314 (2015).
  37. Id. at 2-3.
  38. Id.
  39. Id. at 2.
  40. Id. at 18. The Court also found that the use of the commission was permissible under 2 U.S.C. § 2a (c), a statutory provision that the Court construed as safeguarding to "each state full authority to employ in the creation of congressional districts its own laws and regulations." Id. at 19.
  41. Id. at 18.
  42. Id. See also Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 568 (1916) (holding that a state's referendum system to override redistricting legislation "was contained within the legislative power," rejecting the argument that the referendum was not part of the "Legislature").
  43. Arizona, No. 13-1314, slip op. at 24 (noting that "dictionaries, even those in circulation during the founding era, capaciously define the word 'legislature'" to include as "[t]he power that makes laws" and "the Authority of making laws").
  44. Id. at 25 ("The dominant purpose of the Elections Clause . . . was to empower Congress to override state election rules, not to restrict the way States enact legislation. . . . [T]he Clause 'was the Framers' insurance against the possibility that a State would refuse to provide for the election of representatives to the Federal Congress.'").
  45. Id. at 30 ("The Framers may not have imagined the modern initiative process in which the people of a State exercise legislative power coextensive with the authority of an institutional legislature. But the invention of the initiative was in full harmony with the Constitution's conception of the people as the font of governmental power.").
  46. Id. at 31, 33 (noting that it would be "perverse" to interpret the term "Legislature" to exclude the initiative, because the initiative is intended to check legislators' ability to determine the boundaries of the districts in which they run, and that a contrary ruling would invalidate a number of other state provisions regarding initiatives and referendums).
  47. Art. I, Sec. 4, Clause 1 Elections Clause.
  48. Id. See Foster v. Love, 522 U.S. 67, 69 (1997) ("[I]t is well settled that the Elections Clause grants Congress 'the power to override state regulations' by establishing uniform rules for federal elections binding on the States.'" (quoting U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 832-33 (1995))).
  49. Smiley v. Holm, 285 U.S. 355, 366 (1932).
  50. Id. at 369.
  51. Roudebush v. Hartke, 405 U.S. 15, 24-25 (1972).
  52. United States v. Classic, 313 U.S. 299, 320 (1941).
  53. Art. I, Sec. 2, Clause 1 Composition; Seventeenth Amendment Popular Election of Senators. See Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 17 (2013) ("Prescribing voting qualifications, therefore, 'forms no part of the power to be conferred upon the national government' by the Elections Clause, which is 'expressly restricted to the regulation of the times, the places, and the manner of elections.'" (quoting The Federalist No. 60 (Alexander Hamilton))). See also Oregon v. Mitchell, 400 U.S. 112 (1970).
  54. Art. I, Sec. 2, Clause 2 Qualifications; Art. I, Sec. 3, Clause 3 Qualifications. See United States Term Limits v. Thornton, 514 U.S. 779 (1995)
  55. United States Term Limits v. Thornton, 514 U.S. 779, 808 (1995).
  56. 2 The Records of the Federal Convention 241 (Max Farrand ed., 1901).
  57. The Federalist No. 59 (Alexander Hamilton). See also Rucho v. Common Cause, No. 18-422, slip op. at 9 (U.S. June 2019) (discussing Congress's authority under the Commerce Clause).
  58. Act of June 25, 1842, ch. 47, 5 Stat. 491. In 1870, Congress passed the first comprehensive federal statute to enforce the Fifteenth Amendment's guarantee against racial discrimination in voting. The Enforcement Act of 1870, ch. 114, 16 Stat. 140.
  59. Under the 1872 Act (17 Stat. 28), Congress provided for congressional districts to contain "as nearly as practicable" equal numbers of inhabitants. In 1901 (31 Stat. 733), Congress required districts to comprise "compact territory."
  60. Foster v. Love, 522 U.S. 67 (1997).
  61. Id. at 69.
  62. Rucho v. Common Clause, No. 18-422, slip op. at 30-34 (U.S. June 2019).
  63. 570 U.S. 1 (2013). Unlike the Arizona law, which required documentary evidence of citizenship, the federal form required only that an applicant wishing to vote in federal elections to swear under penalty of perjury that he or she was a citizen. Id. at 5.
  64. Id. (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947); Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341, 347 (2001)).
  65. United States v. Classic, 313 U.S. 299, 315-321 (1941). The authority of Newberry v. United States, 256 U.S. 232 (1921), to the contrary has been vitiated. Cf. United States v. Wurzbach, 280 U.S. 396 (1930).
  66. United States v. Mosley, 238 U.S. 383 (1915); United States v. Saylor, 322 U.S. 385, 387 (1944).
  67. Ex parte Yarbrough, 110 U.S. 651 (1884); United States v. Mosley, 238 U.S. 383 (1915)
  68. United States v. Saylor, 322 U.S. 385 (1944)
  69. Ex parte Siebold, 100 U.S. 371, 392 (1880) (holding that Congress's power under the Elections Clause "is paramount, and may be exercised at any time, and to any extent which it deems expedient; and so far as it is exercised, and no farther, the regulations effected supersede those of the State which are inconsistent therewith."); Ex parte Clarke, 100 U.S. 399 (1880); United States v. Gale, 109 U.S. 65 (1883); In re Coy, 127 U.S. 731 (1888).
  70. Ex parte Siebold, 100 U.S. 371, 396-97 (1880).
  71. United States v. Bathgate, 246 U.S. 220, 225-26 (1918); United States v. Gradwell, 243 U.S. 476, 485 (1917) ("[T]he policy of Congress for [a] great . . . part of our constitutional life has been . . . to leave the conduct of the election of its members to state laws, administered by state officers, and that whenever it has assumed to regulate such elections it has done so by positive and clear statutes.").
  72. See, e.g., Husted v. A. Philip Randolph Inst., No. 16-960, slip op. at 25-26 (U.S. June 2018) ("We have no authority to dismiss the considered judgment of Congress and the Ohio Legislature regarding the probative value of a registrant's failure to send back a [voter verification] return card.").