abstract. H.R. 1 is proposed federal legislation that, if enacted, would address issues in voting, campaign finance, ethics, and legislative redistricting. Given its scope, it is unsurprising that the bill has encountered its fair share of critics, who portray the legislation as unprecedented and unduly intruding on the scope of state authority over elections. As this Essay argues, these concerns are unfounded because Congress has broad authority to regulate federal elections under the Elections Clause of Article I, Section 4 of the Constitution. This authority sometimes permits Congress to reach voter-qualification standards and state elections long considered to be the domain of the states. Congress has rarely used its power under the Clause, contributing to its underenforcement and also to misconceptions about the Clause’s reach. But when utilized, the Clause has supported legislation, both enacted and proposed, that was much broader and more intrusive of state authority than H.R. 1. Even if H.R. 1 does not become law, it should serve as a model for future election reform bills enacted pursuant to Congress’s authority under the Elections Clause.

Introduction

In January 2019, the 116th Congress introduced its very first bill in the House of Representatives, H.R. 1, aptly titled the “For the People Act of 2019.” Relying on Congress’s power under the Elections Clause,1 the bill is an ambitious attempt to restructure the federal election system. It addresses campaign spending, expands voter registration, proposes independent redistricting commissions, prohibits felon disenfranchisement, and bolsters election security, among other things.2 The bill has already seen its fair share of opposition. In a recent report, the Heritage Foundation argued that H.R. 1 is unconstitutional because it interferes with the states’ constitutional authority to determine voter qualifications and administer elections.3 The report alleges that H.R. 1 would “[s]eize the authority of states to regulate voter registration and the voting process by forcing states to implement early voting, automatic voter registration, same-day registration, online voter registration, and no-fault absentee balloting.”4

By upending the manner in which federal elections are traditionally regulated—which is primarily through state law—H.R. 1 is one of the most novel and expansive exercises of federal power over elections in decades.5 Congress often encounters substantial opposition when it enacts legislation that has few modern parallels, usually because these laws touch on an area of significant political controversy and do not comfortably fit within Supreme Court precedent. For example, various parties filed litigation challenging the Affordable Care Act (ACA) because, for the first time, uninsured individuals were forced to obtain healthcare or pay a tax. Although the Supreme Court ultimately upheld the ACA as a lawful exercise of Congress’s taxing power, the Chief Justice pointed to the individual mandate’s unique regulation of inaction—here, the failure to obtain health insurance—in finding the Commerce Clause insufficient to justify its scope.6 In advocating for the ACA’s unconstitutionality, the dissenters emphasized its novelty, noting that a scheme in which individuals are forced into commerce embraces “a definition of market participants [that] is unprecedented.”7

Similarly, the Heritage Foundation report foreshadows the challenges that H.R. 1 will face should it ever become law because the bill involves the expansive use of federal power to regulate federal elections, an area of significant controversy that will become even more contested as we enter the 2020 round of redistricting. The Court’s precedents have not definitively resolved many of the objections raised by the report, creating fertile ground for challenges to not only H.R. 1 but also any federal election law that touches on the state’s power over voter qualifications or its own elections.

Congress has regulated federal elections at various points in our history, although federal legislation has become relatively rare in recent decades as the Supreme Court has increasingly rejected the expansive exercise of federal authority. Most famously, the Voting Rights Act of 1965 (VRA), enacted pursuant to the Fifteenth Amendment, prohibits racial discrimination in voting regardless of whether an election is state or federal.8 Congress has also regulated the procedure of federal elections under the Elections Clause, but this power has been utilized far less than the Fourteenth and Fifteenth Amendments (or the Commerce Clause) even though it is not similarly constrained by federalism concerns.9 Such efforts unavoidably affect voter-qualification standards and state elections, generating significant controversy. For example, the Enforcement Acts of 1870 and 1871 created, for the first time, a system of oversight for federal elections that was so controversial that Congress’s attempt to expand the system twenty years later through the proposed Federal Elections Bill of 1890 led to huge Republican losses in the 1892 elections.10 Despite firm footing in the Elections Clause, all of these efforts were challenged as both partisan endeavors and unconstitutional exercises of federal authority.

This Essay argues that when constitutional text is underenforced and has comparatively few governing precedents, there is a high risk that federalism objections to the exercise of this authority appear more credible than they actually are, creating a false equivalence between unprecedented or novel lawmaking and unconstitutional lawbreaking. If enacted, H.R. 1 would be the most expansive exercise of federal power over elections since the VRA and the most aggressive assertion of federal authority under the Elections Clause since Reconstruction. In defending H.R. 1’s constitutionality, this Essay proceeds as follows. Part I briefly discusses the case law to show that the distinction between mannerregulations and voter-qualification standards is arbitrary and can be difficult to distinguish in practice. It concludes that this distinction may not always matter because Congress can regulate voter qualifications in certain limited circumstances under the Elections Clause. In particular, H.R. 1’s provisions reflect that the Constitution permits Congress to approach the regulation of federal elections comprehensively, making it difficult to disaggregate state and federal power over elections. As illustrated in Part II, which discusses the Enforcement Acts of the 1870s as well as the proposed Federal Elections Bill of 1890, history bears out that a law is not de facto unconstitutional just because it is novel and touches on areas of state authority. Federalism objections could nonetheless lead a law’s novelty—and implied unconstitutionality—to be confused with Congress’s prerogative to push the limits of its lawful authority under an otherwise underenforced constitutional provision.11

I. and the two shall never meet?: disaggregating state and federal power over elections

Given increasing concerns about federalism by the most conservative Supreme Court in decades, questions have inevitably arisen as to whether the Court has to account for the practical difficulties of election administration in thinking about the scope of federal power under the Elections Clause.12 States have broad authority to regulate voter qualifications and state elections. The Court typically views our system of federalism as requiring that states be able to regulate these domains free of federal interference, subject only to limited exceptions.13 But the nature of election administration—where states generally use a uniform system of regulation for both state and federal elections—suggests that the Court should be somewhat pragmatic, rather than strictly doctrinal, in considering the scope of federal power over elections. Because federal law under the Elections Clause often touches on voter qualifications and state elections, this can create confusion about which level of government has constitutional authority to legislate. Such confusion tends to inflate federalism concerns, even when it is impossible to disentangle state and federal power in this area. In Arizona v. Inter Tribal Council of Arizona, for example, the Court found that the requirement in the National Voter Registration Act (NVRA) that voters affirm their citizenship in order to register to vote for federal elections preempted Arizona’s documentary proof-of-citizenship requirement.14 Nonetheless, the majority recognized that there could be instances in which the NVRA interfered with state power over voter qualifications, noting that, in those instances, states could use the Administrative Procedure Act to challenge the statute as applied to their elections.15

Despite this concession, some Justices insist that courts should not account for practical implementation when deciding cases under the Elections Clause. At least two Justices believe that any federal interference with the state’s power over voter qualifications is unconstitutional. In Arizona Inter Tribal, Justices Thomas and Alito dissented on the grounds that the NVRA’s affirmation-of-citizenship requirement impermissibly interfered with Arizona’s ability to enforce its own requirement that voters present documentary proof of citizenship, which they deemed a voter qualification. Justice Thomas, in particular, argued that the Voter Qualifications Clause of Article I, Section 2, which allows states to determine the electors for federal elections, prevented Congress from passing any regulation that undermined the states’ “nearly complete control over voter qualifications.”16 Importantly, he dismissed precedents establishing that voter registration falls within the scope of Congress’s power under the Elections Clause, distinguishing them as cases that “involved congressional redistricting, not voter registration.”17

Similarly, Justice Alito rejected the Court’s interpretation of the NVRA by focusing on state, rather than federal, authority under the Elections Clause. Pointing to the NVRA as an untraditional exercise of federal power, he would have imposed the equivalent of a clear-statement rule on Congress should it choose to exercise its authority to regulate the times, places, and manner of federal elections. He “presum[ed] that the States retain this authority [under the Elections Clause] unless Congress has clearly manifested a contrary intent,” in order to protect Arizona’s “compelling interest in preserving the integrity of its electoral process.”18

The crux of these Justices’ objections is that Congress’s power to “make or alter” regulations that govern federal elections should have minimal or no impact on either state elections or the voter qualifications that states have primary authority to stipulate under Article I, Section 2. Like the Heritage report, Justices Thomas and Alito assume that, contrary to how the federal and state electoral systems interact in practice, federalism requires the complete disaggregation of state voter-qualification standards from the time, place, and manner regulations that Congress can enact pursuant to the Elections Clause and, also, that federal power has little or no impact on state elections.

A. The Unworkable Distinction Between Manner Regulations and Voter-Qualification Standards

The above view espoused by Justices Thomas and Alito miscomprehends the case law as well as the constitutional text and structure by trying to distinguish a voter-qualification standard set by the states from a manner regulation subject to federal authority in the absence of clear guidance.19 For example, the Court has looked to the requirements of federal law to validate regulations that apply to both state and federal elections, making few distinctions between state and federal authority in those circumstances. In upholding Indiana’s voter-identification law—a law that is not clearly a voter-qualification standard or a manner regulation20—the Court justified the law by pointing to requirements imposed on the state by the NVRA and the Help America Vote Act (HAVA).21 Both the NVRA and HAVA (which was also enacted pursuant to the Elections Clause) are prime examples of federal statutes that rely on state implementation and cooperation, making it difficult to deploy separate standards for each level of elections or to distinguish based on the category (voter-qualification standard or manner regulation) implicated. The NVRA establishes voter-registration criteria for federal elections and prohibits actions that would needlessly disenfranchise individuals;22 if federal law sets one baseline for voter registration, it is difficult for states to set another. Similarly, HAVA requires state oversight of local election boards to avoid many of the voting problems that arose during the 2000 election.23 H.R. 1 modifies and extends both laws,24 making it even more difficult to limit their reach to only federal elections.

Practical concerns also muddy the scope of federal power over federal elections, which compounds the significance of these doctrinal gray areas.25 Should the federal government want to impose a regulation that affects voter-qualification standards, it can only do so in limited circumstances.26 If a state wants to regulate the time, place, and manner of federal elections, the federal government has significantly more authority to displace or alter state law. But what if a regulation has implications for both voter qualifications and the manner of federal elections? Proof-of-citizenship requirements to register for federal elections have presented this issue in a particularly stark fashion. After Arizona Inter Tribal, Kansas experienced difficulty trying to run parallel election systems when it sought to require proof of citizenship for voter registration but could only do so for state elections.27 As the D.C. Circuit recognized, documentary proof-of-citizenship requirements that apply to state and local elections make it difficult to register voters for federal elections as well.28 The Supreme Court has nonetheless upheld the NVRA’s requirement that voters affirm their citizenship under the Elections Clause even though it inevitably affects voter qualifications and state elections,29 creating another doctrinal gray area that contributes to the difficulty in delineating voter-qualification standards from manner regulations.

B. Congress’s Limited Power to Regulate Voter Qualifications Under the Elections Clause

The artificial boundary between manner regulations and voter-qualification standards should not prevent Congress from using its authority under the Elections Clause to address a state’s attempt to purposely circumscribe its electorate through its authority over voter qualifications. As I have argued in prior work, there are limited circumstances in which Congress can reach voter qualifications under the Elections Clause, including instances in which state regulations discourage voter turnout in federal elections.30 For example, H.R. 1 prohibits the disenfranchisement of felons in federal elections after they have been released from custody, probably one of the most controversial parts of the bill.31 Felony status has long been considered a voter qualification that states can use to exclude otherwise eligible voters. The Court has interpreted Section 2 of the Fourteenth Amendment to sanction felon disenfranchisement because it exempts felony status from the penalty of reduced representation imposed on any state that abridges or denies the right to vote.32

However, the Court has not resolved whether Congress can regulate felon disenfranchisement under the Elections Clause if states have abused their power in a way that, like documentary proof-of-citizenship requirements, affects turnout and participation in federal elections. Critics have attacked felon-disenfranchisement laws as being overbroad attempts to disenfranchise minority voters beyond what the framers of Section 2 envisioned.33 Many states prohibit felons from voting long after they have been released from custody or, alternatively, require them to petition the state for the restoration of their voting rights after a term of years.34

Recently, Florida voters approved a state constitutional amendment that would have restored the voting rights of those previously incarcerated, but the state legislature passed a law that would curb its effectiveness by requiring all fines and fees to be paid prior to the restoration of voting rights.35 H.R. 1 would prohibit states from barring individuals who are no longer in custody from voting, thereby deterring broad felon-disenfranchisement laws intended to indefinitely disenfranchise a significant percentage of the electorate. As the Court has recognized, Congress has the power under the Elections Clause to “protect the elections on which its existence depends”36 and “to protect the citizen in the exercise of rights conferred by the Constitution of the United States essential to the healthy organization of the government itself.”37 Regulations like Florida’s statute requiring the payment of fines and fees regardless of ability to pay, as well as instances in which states disenfranchise based on an overly broad category of offenses, have significant implications for turnout and participation in federal elections, such that these efforts fall within the limited instances in which Congress can reach voter qualifications under the Clause.

Exceptions must exist because, unlike the Fourteenth and Fifteenth Amendments, federalism does not function as a constraint on congressional authority under the Elections Clause. Concerns about federalism have hampered voting-rights enforcement in recent decades, famously culminating in Shelby County v. Holder’s invalidation of Section 4(b) of the VRA, which subjected mostly southern jurisdictions with abysmal records on voting rights to federal oversight.38 In contrast, the Supreme Court has interpreted the Elections Clause’s text as allowing Congress to “make or alter” state regulations, and to implement “a complete code for congressional elections” that can displace state law for any reason or no reason.39 Though the Elections Clause defaults to state power as an initial matter—which invites the conclusion, embraced by Justices Alito and Thomas, that congressional power is constrained—the text and structure of the Clause point to federal power that is robust, significant, and, most importantly, unencumbered by federalism.40

II. laws are not unconstitutional because they are novel or unprecedented

Despite the Elections Clause’s untapped potential, it has not been a source of much election-law legislation, which contributes to the perception that H.R. 1 is unprecedented and therefore unconstitutional. While the NVRA is the most recent regulation of voter registration under the Elections Clause, it is significantly less far-reaching than its predecessors, both proposed and enacted. The same is true of H.R. 1.

The Enforcement Act of 1870, typically categorized as Fifteenth Amendment legislation but also enacted pursuant to the Elections Clause, criminalized violations of state law that governed federal elections.41 This exposed state officials to dual liability, created a category of nationally protected rights, and, in the process, raised significant questions about the scope of federal authority. Under the Act, election officials could be charged under federal law if they “hinder, delay, prevent, or obstruct, any citizen from doing any act required to be done to qualify him to vote or from voting at any election.”42 This provision was a much more aggressive statement of federal power than the NVRA’s requirement that states offer voter registration at all state offices that provide public assistance or, alternatively, H.R. 1’s proposed requirement that states offer online voter registration.

The Enforcement Act of 1871 went further than its counterpart enacted a year earlier, instituting a system of federal oversight for congressional elections. This oversight system was designed to ferret out voter fraud and other behavior that prevented individuals from voting and had been prohibited by the 1870 Act.43 Unlike the preclearance provisions of Sections 4(b) and 5 of the VRA, which applied to mostly southern jurisdictions, the 1871 Act applied to congressional districts nationwide. In contrast, the only oversight that would be created by H.R. 1 is a committee to oversee presidential inaugurations, a far cry from the system of oversight created by the 1871 Act. Effectively, both Enforcement Acts oversaw state elections and voter qualifications even though, by their terms, the oversight applied only to federal elections. These provisions were extremely controversial, with opponents questioning the statute’s use of criminal penalties, its broad application to any denial of the right to vote, and its interference with state election systems.44 Nonetheless, the Supreme Court upheld criminal prosecutions under the 1870 and 1871 Acts, reading broadly congressional power under the Elections Clause to enact this legislation.45

The proposed Federal Elections Bill of 1890, which failed by only one vote, further suggests that the nature of the objections raised by the Heritage report (and Justices Thomas and Alito) are not reflective of how Congress generally viewed its power under the Elections Clause.46 Extending the reach of the 1870 and 1871 Enforcement Acts, the Federal Elections Bill would have instituted federal supervision of congressional elections, from registration to certification of the winners, if one hundred people within any given congressional district requested federal intervention.47 Critics called the legislation the “Lodge Force Act,” a reference to one of its chief sponsors, Representative Henry Cabot Lodge, and the controversy surrounding the proposal.48 The New York Times noted that the bill was so controversial that major issues were being neglected to focus on its potential passage.49

With the Federal Elections Bill, Congress sought to build on the earlier Enforcement Acts and favorable Supreme Court precedents that, in sustaining portions of the Acts, had explicitly recognizing that Congress has broad authority under the Elections Clause to protect federal elections.50 Congress had ample support for its belief that the bill was constitutionally sound. Nonetheless, critics argued that the bill was not a regulation of the manner of federal elections that its sponsors contended; rather, they framed it as a usurpation of and unconstitutional interference with state power.51 The controversy over the Acts and the Federal Elections Bill reveal that there are political risks attendant to legislating toward the outer limits of constitutional power, risks that tend to manifest at the ballot box, rather than within the legal system. Republicans would enact five enforcement acts in the early 1870s, which contributed to the 1874 defeat that cost them control of Congress for the first time since the Civil War.52 Similarly, Republicans’ support for the Federal Elections Bill cost them in the 1890 elections, with fissures in the Republican caucus ultimately leading to the bill’s defeat in 1891, followed by huge Republican losses in the 1892 elections.53 Democrats may face a similar fate with H.R. 1, but ultimately it should be the people, and not the Court, who determine the fate of novel federal legislation.

Conclusion

It is undisputed that the broad and comprehensive exercise of federal power over elections has been controversial. However, the juxtaposition of the controversy over H.R. 1 with the responses to its historical counterparts reveals that objections to broad federal power are often based on misplaced federalism concerns. Arguably, Congress has broad power under the Elections Clause to regulate federal elections, unchecked by the federalism concerns that have stymied enforcement under the Fourteenth and Fifteenth Amendments. While Congress has used this authority sparingly, leading to confusion about its actual scope, there are historical precedents that go beyond H.R. 1 in their assertion of federal power. In any case, unprecedented or novel exercises of federal power should not be confused with unlawful uses of federal authority.

Vice Dean for Faculty and Academic Affairs and Professor of Law, University of Southern California Gould School of Law. I am grateful to participants in the Election Law Roundtable at the Southeast Association of Law Schools Annual Conference for their feedback on the ideas featured in this Essay. Thanks to the editors of the Yale Law Journal for their terrific work on previous drafts.