Annotation 18 - Article I

  Section 4. Elections

Clause 1. Congressional Power to Regulate


Not until 1842 did Congress undertake to exercise the power to regulate the ''times, places and manner of holding elections for Senators and Representatives.'' In that year, it passed a law requiring the election of Representatives by districts. 323 In subsequent years, Congress expanded on the requirements, successively adding contiguity, compactness, and substantial equality of population to the districting requirements. 324 However, no challenge to the seating of Members-elect selected in violation of these requirements was ever successful, 325 and Congress deleted the standards from the 1929 apportionment act. 326 More success attended a congressional resolution in 1866 of deadlocks in state legislatures over the election of Senators, often resulting in vacancies for months. The act required the two houses of each legislature to meet in joint session on a specified day and to meet every day thereafter until a Senator was selected. 327  

The first comprehensive federal statute dealing with elections was adopted in 1870 as a means of enforcing the Fifteenth Amendment's guarantee against racial discrimination in granting suffrage rights. 328 Under the Enforcement Act of 1870, and subsequent laws, false registration, bribery, voting without legal right, making false returns of votes cast, interference in any manner with officers of election, and the neglect by any such officer of any duty required of him by state or federal law were made federal offenses. 329 Provision was made for the appointment by federal judges of persons to attend at places of registration and at elections with authority to challenge any person proposing to register or vote unlawfully, to witness the counting of votes, and to identify by their signatures the registration of voters and election talley sheets. 330 When the Democratic Party regained control of Congress, these pieces of Reconstruction legislation dealing specifically with elections were repealed, 331 but other statutes prohibiting interference with civil rights generally were retained and these were utilized in later years. More recently, Congress has enacted, in 1957, 1960, 1964, 1965, 1968, 1970, 1975, 1980, and 1982, legislation to protect the right to vote in all elections, federal, state, and local, through the assignment of federal registrars and poll watchers, suspension of literacy and other tests, and the broad proscription of intimidation and reprisal, whether with or without state action. 332  

Another chapter was begun in 1907 when Congress passed the Tillman Act, prohibiting national banks and corporations from making contributions in federal elections. 333 The Corrupt Practices Act, first enacted in 1910 and replaced by another law in 1925, extended federal regulation of campaign contributions and expendi tures in federal elections 334 and other acts have similarly provided other regulations. 335  

As we have noted above, although Sec. 2, cl. 1, of this Article vests in the States the responsibility, now limited, to establish voter qualifications for congressional elections, the Court has held that the right to vote for Members of Congress is derived from the Federal Constitution, 336 and that Congress therefore may legislate under this section of the Article to protect the integrity of this right. Congress may protect the right of suffrage against both official and private abridgment. 337 Where a primary election is an integral part of the procedure of choice, the right to vote in that primary election is subject to congressional protection. 338 The right embraces, of course, the opportunity to cast a ballot and to have it counted honestly. 339 Freedom from personal violence and intimidation may be secured. 340 The integrity of the process may be safeguarded against a failure to count ballots lawfully cast 341 or the dilution of their value by the stuffing of the ballot box with fraudulent ballots. 342 But the bribery of voters, although within reach of congressional power under other clauses of the Constitution, has been held not to be an interference with the rights guaranteed by this section to other qualified voters. 343  

To accomplish the ends under this clause, Congress may adopt the statutes of the States and enforce them by its own sanctions. 344 It may punish a state election officer for violating his duty under a state law governing congressional elections. 345 It may, in short, utilize its power under this clause, combined with the nec essary-and-proper clause, to regulate the times, places, and manner of electing Members of Congress so as to fully safeguard the integrity of the process; it may not, however, under this clause, provide different qualifications for electors than those provided by the States. 346  


[Footnote 323] 5 Stat. 491 (1842). The requirement was omitted in 1850, 9 Stat. 428, but was adopted again in 1862. 12 Stat. 572.

[Footnote 324] The 1872 Act, 17 Stat. 28, provided that districts should contain ''as nearly as practicable'' equal numbers of inhabitants, a provision thereafter retained. In 1901, 31 Stat. 733, a requirement that districts be composed of ''compact territory'' was added. These provisions were repeated in the next Act, 37 Stat. 13 (1911), there was no apportionment following the 1920 Census, and the permanent 1929 Act omitted the requirements. 46 Stat. 13. Cf. Wood v. Broom, 287 U.S. 1 (1932).

[Footnote 325] The first challenge was made in 1843. The committee appointed to inquire into the matter divided, the majority resolving that Congress had no power to bind the States in regard to their manner of districting, the minority contending to the contrary. H. Rept. No. 60, 28th Congress, 1st sess. (1843). The basis of the majority view was that while Article I, Sec. 4 might give Congress the power to lay off the districts itself, the clause did not authorize Congress to tell the state legislatures how to do it if the legislatures were left the task of drawing the lines. L. Schmeckebier, Congressional Apportionment(Washington: 1941), 135-138. This argument would not appear to be maintainable in light of the language inEx parte Siebold, 100 U.S. 371, 383 -386 (1880).

[Footnote 326] 46 Stat. 13 (1929). In 1967, Congress restored the single- member district requirement. 81 Stat. 581, 2 U.S.C. Sec. 2c.

[Footnote 327] 14 Stat. 243 (1866). Still another such regulation was the congressional specification of a common day for the election of Representatives in all the States. 17 Stat. 28 (1872), 2 U.S.C. Sec. 7.

[Footnote 328] Article I, Sec. 4, and the Fifteenth Amendment have had quite different applications. The Court insisted that under the latter, while Congress could legislate to protect the suffrage in all elections, it could do so only against state interference based on race, color, or previous condition of servitude, James v. Bowman, 190 U.S. 127 (1903);United States v. Reese, 92 U.S. 214 (1876), whereas under the former it could legislate against private interference as well for whatever motive but only in federal elections.Ex parte Siebold, 100 U.S. 371 (1880);Ex parte Yarbrough, 110 U.S. 651 (1884).

[Footnote 329] The Enforcement Act of May 31, 1870, 16 Stat. 140; The Force Act of February 28, 1871, 16 Stat. 433; The Ku Klux Klan Act of April 20, 1871, 17 Stat. 13. The text of these and other laws and the history of the enactments and subsequent developments are set out in R. Carr, Federal Protection of Civil Rights: Quest for a Sword(Ithaca: 1947).

[Footnote 330] The constitutionality of sections pertaining to federal elections was sustained inEx parte Siebold, 100 U.S. 371 (1880), andEx parte Yarbrough, 110 U.S. 651 (1884). The legislation pertaining to all elections was struck down as going beyond Congress' power to enforce the Fifteenth Amendment.United States v. Reese, 92 U.S. 214 (1876).

[Footnote 331] 28 Stat. 144 (1894).

[Footnote 332] P.L. 85-315, Part IV, Sec. 131, 71 Stat. 634, 637 (1957); P.L. 86-449, Title III, Sec. 301, Title VI, 601, 74 Stat. 86, 88, 90 (1960); P.L. 88-352, Title I, Sec. 101, 78 Stat. 241 (1964); P.L. 89- 110, 79 Stat. 437 (1965); P.L. 90-284, Title I, Sec. 101, 82 Stat. 73 (1968); P.L. 91-285, 84 Stat. 314 (1970);P.L. 94-73, 89 Stat. 400 (1975); P.L. 97-205, 96 Stat. 131 (1982). Most of these statutes are codified in 42 U.S.C. Sec. 1971et seq.The penal statutes are in 18 U.S.C. Sec. Sec. 241-245.

[Footnote 333] Act of January 26, 1907, 34 Stat. 864, now a part of 18 U.S.C. Sec. 610.

[Footnote 334] Act of February 28, 1925, 43 Stat. 1070, 2 U.S.C. Sec. Sec. 241-256. Comprehensive regulation is now provided by the Federal Election Campaign Act of 1971, 86 Stat. 3, and the Federal Election Campaign Act Amendments of 1974, 88 Stat. 1263, as amended, 90 Stat. 475, found in titles 2, 5, 18, and 26 of the U.S. Code. SeeBuckley v. Valeo, 424 U.S. 1 (1976).

[Footnote 335] E.g., the Hatch Act, relating principally to federal employees and state and local governmental employees engaged in programs at least partially financed with federal funds, 5 U.S.C. Sec. Sec. 7324- 7327.

[Footnote 336] United States v. Classic, 313 U.S. 299, 314 -315 (1941), and cases cited.

[Footnote 337] Id., 315;Buckley v. Valeo, 424 U.S. 1, 13 n. 16 (1976).

[Footnote 338] United States v. Classic, 313 U.S. 299, 315 -321 (1941). The authority ofNewberry v. United States, 256 U.S. 232 (1921), to the contrary has been vitiated.Cf. United States v. Wurzbach, 280 U.S. 396 (1930).

[Footnote 339] United States v. Mosley, 238 U.S. 383 (1915);United States v. Saylor, 322 U.S. 385, 387 (1944).

[Footnote 340] Ex parte Yarbrough, 110 U.S. 651 (1884).

[Footnote 341] United States v. Mosley, 238 U.S. 383 (1915).

[Footnote 342] United States v. Saylor, 322 U.S. 385 (1944).

[Footnote 343] United States v. Bathgate, 246 U.S. 220 (1918);United States v. Gradwell, 243 U.S. 476 (1917).

[Footnote 344] Ex parte Siebold, 100 U.S. 371 (1880);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).

[Footnote 345] Ibid.

[Footnote 346] But inOregon v. Mitchell, 400 U.S. 112 (1970), Justice Black grounded his vote to uphold the age reduction in federal elections and the presidential voting residency provision sections of the Voting Rights Act Amendments of 1970 on this clause. Id., 119-135. Four Justices specifically rejected this construction, id., 209-212, 288-292, and the other four implicitly rejected it by relying on totally different sections of the Constitution in coming to the same conclusions as did Justice Black.

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