Congressional Authority to Standardize National Election Procedures
Report for Congress
National Election Procedures
Updated February 14, 2003
Kenneth R. Thomas
American Law Division
Congressional Research Service ˜ The Library of Congress
Congressional Authority to Standardize National
Events surrounding the 2000 Presidential election have led to increased scrutiny
of voting procedures in the United States, including efforts to establish national
standards for issues such as the administration of voter registration, balloting,
tabulating and reporting election results. This report focuses on the constitutional
authority and limitations relevant to Congress standardizing these and other election
procedures. A policy evaluation of these different options is, however, beyond the
scope of this report.
The Congress’ authority to regulate a particular election may vary depending on
whether that election is for the Presidency, the House, the Senate, or for state and
local positions. Further, there may be variation in whether a particular aspect of
elections, such as balloting procedures, is amenable to regulation. Consequently,
evaluating the authority to establish uniform election procedures would appear to
require an examination of a variety of different proposals and scenarios.
Although the Constitution is silent on various aspects of the voting process, the
Constitution seems to anticipate that states would be primarily responsible for
establishing election procedures. Federal authority to also regulate federal elections,
however, is specifically provided for in the Constitution. There are two main
provisions at issue – Article I, §4, cl. 1, which provides Congress the authority to set
the “Times, Places and Manner” of congressional elections, and Article II, §1, cl. 4,
which provides that Congress may designate the “Time” for the choosing of
Congress’ power is at its most broad in the case of House elections, which have
historically always been decided by a system of popular voting. Congressional power
over Senate elections, while almost as broad as it is for House elections, contains one
exception - that Congress may not regulate “the Places of chusing Senators.” The
power of Congress to regulate Presidential elections, is not, however, as clearly
established as the power over House and Senate elections. As noted above, the text
of the Constitution provides the Congress only the limited power to designate the
“Time” of the choosing of Presidential Electors. The case law on this issue is,
however, ambiguous, and Congress’s regulatory authority over presidential elections
seems to be more extensive than might appear based on the text of Article II, §1, cl.
The Constitution does not grant the Congress general legislative authority to
regulate the manner and procedures used for elections at the state and local level.
The Congress, however, does have authority under the Civil War Amendments, the
19th, 24th and the 26th Amendments to prevent discrimination in access to voting, and
has exercised that power extensively over state and local elections, as well as federal
elections. The Congress also has expansive authority to spend money for the general
welfare, and allocation of such grant monies could be conditioned on compliance by
state or local officials with national standards for election procedures.
Relevant Constitutional Provisions................................2
State and Local Elections........................................6
Congressional Authority to Standardize
National Election Procedures
Events surrounding the 2000 Presidential election have led to increased scrutiny
of current voting procedures in the United States. For instance, efforts have been
made to establish national standards for the administration of voter registration,
balloting, tabulating or reporting election results. This report focuses on the
constitutional authority and limitations that are relevant Congress standardizing these
and other procedures. A policy evaluation of these and other proposals, however, is
beyond the scope of this report.
In evaluating any such proposals, an initial question to be asked is which
elections will be affected. Traditionally, all voting, whether federal, state or local,
occurs in local precinct polling places, and state or local authorities have a significant
role in regulating such voting. Congress, however, also has authority to regulate
elections, and that authority may vary depending on whether the election is for the
Presidency, the House, the Senate, or for state or local offices. Further, there may be
variation in whether a particular aspect of an election, such as balloting procedures,
is amenable to congressional regulation. Consequently, the authority for Congress to
establish standardized election procedures would appear to require an evaluation of
a variety of different proposals and scenarios.
Various proposals have been made regarding standardizing election procedures,
!Establishing uniform procedures for registration of voters
!Standardizing mail-in and absentee balloting
!Establishing a uniform closing time for polls
!Establishing multiple day elections
!Standardizing the number and accessibility of polling stations
!Standardizing ballot design and technology
!Regulating supervision of voting
!Standardization of vote counting, compilation and publication of
!Allocating electoral votes within state based on popular votes
Relevant Constitutional Provisions
The authority of Congress to legislate regarding these various issues in different
types of elections would appear to derive principally from two constitutional
Article I, §4, cl. 1
The Times, Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the Legislature therof; but
the Congress may at any time by Law make or alter such Regulations, except as
to the Places of chusing Senators.
Article II, §1, cl. 4
The Congress may determine the Time of chusing the [Presidential] Electors, and
the Day on which they shall give their votes; which Day shall be the same
throughout the United States.
Although the Constitution is silent on various aspects of the voting process, the
Constitution seems to anticipate that states would be primarily responsible for
establishing election procedures for congressional elections. Federal authority to
regulate congressional elections is specifically provided for in the Constitution. This
power is at its most broad in the case of House elections, which have historically
always been decided by a system of popular voting.1 As noted above, Article I, §4,
cl. 1 states that the Congress may determine “the Times, Places and Manner” for such
elections. The Supreme Court and lower courts have interpreted the above language
to mean that Congress has extensive power to regulate most elements of a
For instance, the Supreme Court has noted that the right to vote for Members
of Congress is derived from the Constitution and that Congress therefore may
legislate broadly under this provision to protect the integrity of this right.2 The Court
has stated that the authority to regulate the “times, places and manner” of federal
embrace[s] [the] authority 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
1 U.S. Const. Art. I, §2, cl. 1 states “[t]he House of Representatives shall be composed of
Members chosen every second Year by the People of the several States . . . .”
2 Smiley v. Holm, 285 U.S. 355 (1932) (Congress may delegate authority to draw member
districts to state legislatures, exclusive of governor’s veto). For a history of Congressional
regulation of federal elections, see Congressional Research Service, Constitution of the
United States, Analysis and Interpretation 119 (1992) (available at
[ ht t p: / / www.l oc.gov/ cr s/ conan/ ar t 01/ 42.ht m] ) .
publication of election returns; in short, to enact the numerous requirements as
to procedure and safeguards which experience shows are necessary in order to
enforce the fundamental right involved . . . . [Congress] has a general supervisory3
power over the whole subject.
Consequently, it would appear that the Congress would have broad authority to
implement the various proposals listed above as regards House elections.
Unlike House elections, Senate elections were, until ratification of the 17th
Amendment, decided not by popular vote, but by a vote of the state legislatures. This
helps explain why congressional power over Senate elections, while almost as broad
as it is for House elections, contains one exception – that Congress may not regulate
“the Places of chusing Senators.” As originally drafted, this language would have
limited the authority of the Congress to designate where state legislatures would meet
for such votes. This deference to the prerogatives of state legislatures would appear
to be obsolete now that all Senate elections are decided by popular vote. However,
nothing in the 17th Amendment explicitly repealed this restriction, and the meaning
of the clause could apply to congressional regulation of establishment of the sites for
Arguably, if Congress attempted to establish legislation regulating where states
must establish polling sites for Senate elections, such legislation might run afoul of
this provision. On the other hand, for practical purposes, most states, if subjected to
federal regulation for House elections establishing the location of polling place,
would be likely to follow such directions for Senate elections occurring at the same
time, if no other reason than administrative convenience.
The power of Congress to regulate Presidential elections is not as clearly
established as the power over House and Senate elections. First, the text of the
Constitution provides a more limited power to Congress in these situations. Whereas
3 285 U.S. at 366. See Roudebush v. Hartke, 405 U.S. 15, 24-25 (1972) (state’s authority
to regulate recount of elections); United States v. Gradwell, 243 U.S. 476, 483 (1917) (full
authority over federal election process, from registration to certification of results); United
States v. Mosley, 238 U.S. 383, 386 (1915) (authority to enforce the right to cast ballot and
have ballot counted); In re Coy, 127 U.S. 731, 752 (1888) (authority to regulate conduct at
any election coinciding with federal contest); Ex parte Yarbrough, 110 U.S. 651, 662 (1884)
(authority to make additional laws for free, pure, and safe exercise of right to vote); Ex parte
Clarke, 100 U.S. 399, 404 (1879) (authority to punish state election officers for violation of
state duties vis-a-vis Congressional elections). See also United States v. Simms, 508
F.Supp. 1179, 1183-85 (W.D. La.1979) (criminalizing payments in reference to registration
or voting does not offend Tenth Amendment); Prigmore v. Renfro, 356 F.Supp. 427, 430
(N.D. Ala.1972) (absentee ballot program upheld as applied to federal elections), aff'd, 410
U.S. 919 (1973); Fowler v. Adams, 315 F.Supp. 592, 594 (M.D. Fla.1970), appeal
dismissed, 400 U.S. 986 (1971) (authority to exact 5 percent filing fee for Congressional
Article I, §4, cl. 1 allows regulation of the “time, place and manner” of congressional
elections, Article II, §1, cl. 4 provides only that Congress may determine the “time”
of choosing presidential electors. Further, despite modern state practice providing for
popular voting for electors, the appointment of presidential electors was historically
and remains today a power of the state legislatures.4 Consequently, principles of
federalism might incline the Supreme Court to find the appointment of presidential
electors less amenable to federal regulation. The exception to this would be
congressional authority under the Civil War Amendments (13th, 14th and 15th); these
powers are addressed in the following section on regulating state and local elections.
The case law on this issue is ambiguous, although Congress’ regulatory
authority over presidential elections does seem to be more extensive than it might
appear based on the text of the Constitution. For instance, the Court has allowed
congressional regulation of political committees which seek to influence Presidential
elections, arguing that such legislation is justified by the need to preserve the
integrity of such elections. In Burroughs v. United States,5 the Supreme Court
[w]hile presidential electors are not officers or agents of the federal government,
they exercise federal functions under, and discharge duties in virtue of authority
conferred by, the Constitution of the United States. The President is vested with
the executive power of the nation. 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,6
whether threatened by force or by corruption.
A question arises, however, whether Burroughs, which involves the regulation
of third parties to elections, can be distinguished from the regulation of states directly
regarding their administration of presidential elections. In Burroughs, the Court
distinguished the legislation under consideration (regulation of political committees)
from legislation more directly dealing with state appointment of electors, noting that:
The congressional act under review seeks to preserve the purity of presidential
and vice presidential elections. Neither in purpose nor in effect does it interfere
with the power of a state to appoint electors or the manner in which their
appointment shall be made. It deals with political committees organized for the
4 U.S. Const. Art. II, §1, cl. 2 provides that “Each State shall appoint, in such Manner as the
Legislature thereof may direct, a Number of Electors, equal to the whole Number of
Senators and Representatives to which the State may be entitled in the Congress: but no
Senator or Representative, or Person holding an Office of Trust or Profit under the United
States, shall be appointed an Elector.”
5 290 U.S. 534 (1934). See also Buckley v. Valeo, 424 U.S. 1, 67, 91 (1976)(upholding
regulation of campaign financing by the Federal Election Campaign Act of 1971).
6 290 U.S. at 544-545.
purpose of influencing elections in two or more states, and with branches or
subsidiaries of national committees, and excludes from its operation state or local
committees. Its operation, therefore, is confined to situations which, if not
beyond the power of the state to deal with at all, are beyond its power to deal7
with adequately. It in no sense invades any exclusive state power.
Under this language, procedures within the province of states, such as the
allocation of electors by a state, would appear to fall outside of the doctrine
established in Burroughs. Although the Court was not asked to evaluate whether
Congress had the power to establish the manner in which the presidential electors
were appointed, the language above would appear to indicate that the Court in
Burroughs had not intended its decision to extend Congress’ authority to regulate
presidential elections so that it was coextensive with the power to regulate
Surprisingly, however, three United States Courts of Appeal, relying on
Burroughs, reached precisely the opposite result. In upholding the validity of
congressional regulation of registration procedures for federal elections under the
National Voter Registration Act of 1993 (Motor Voter Act),8 three federal circuits
appeared to find that the Congress had the same authority to regulate presidential
elections as it did House and Senate elections.9 However, of the three opinions, two
made only passing references to the issue, and only the Seventh Circuit discussed it
at any length. In ACORN v. Edgar, Chief Judge Posner of the Seventh Circuit wrote
Article I, §4 [providing authority over congressional elections]. . . makes no
reference to the election of the President, which is by the electoral college rather
than by the voters at the general election; general elections for President were not
contemplated in 1787. . . . But these turn out not to be [a] serious omission so
far as teasing out the modern meaning of Article I, §4 is concerned. Article II
provides [congressional authority over the Time of choosing Electors.] Article
II, §1 . . . has been interpreted to grant Congress power over Presidential
elections coextensive with that which Article I ,§4 grants it over congressional10
elections. Burroughs v. United States, 290 U.S. 534 (1995).
It should be noted that the federal registration standards developed under Motor
Voter could probably have been decided under Congress’ power over congressional
elections, so that the reasoning of these cases would not appear essential to their
holdings. These broad holdings, however, do stand as some of the few modern
interpretations of Article II, §1, cl. 4 and Burroughs.11 Those cases’ interpretations,
7 290 U.S. 543-544.
8 42 U.S.C. §§1973gg et seq.
9 ACORN v. Edgar, 56 F.3d 791 (7th Cir. 1995); Voting Rights Coalition v. Reno, 60 F.3d
10 56 F.3d at 793.
11 Further support for this position is seen in Oregon v. Mitchell, where Justice Black wrote
“. . . it is the prerogative of Congress to oversee the conduct of presidential and
however, would appear to be at odds with the limiting language of Burroughs quoted
Resolution of this issue may ultimately be important to any determination of
whether proposals to standardize election procedures could be specifically applied
to presidential elections. Where congressional and presidential election procedures
are likely to overlap, such as requirements for absentee balloting, uniform closing
times, multiple day elections, number and accessability of polling stations, etc.,
regulation of congressional elections may be for practical purposes sufficient.
However, where the issue at hand is unique to presidential elections, e.g. allocation
of electors based on popular vote, the resolution of this issue may become essential.
State and Local Elections
Congress does not have general legislative authority to regulate the manner and
procedures used for elections at the state and local level. The Congress, however,
does have extensive authority under the Civil War Amendments,13 the 19th
Amendment,14 the 24th Amendment,15 and the 26th Amendment16 to prevent
discrimination in access to voting, and it has exercised that power extensively over
state and local, as well as federal, elections.17 Thus, to the extent that national ballot
standards could be established as a means to avoid disenfranchisement, regulation of
state and local elections could be established.
Such power does, however, have limits. For instance, the Fourteenth
Amendment provides that states shall not deprive citizens of "life, liberty or
property" without due process of law nor deprive them of equal protection of the
vice-presidential elections and to set the qualifications for voters for electors for those
offices. It cannot be seriously contended that Congress has less power over the conduct of
presidential elections than it has over congressional elections.” 400 U.S. 112, 124
(1970)(upholding federal statute lowering minimum age for voters). Although Justice Black
wrote the opinion of the Court, no other Justice joined this portion of his opinion, as theth
other Justices instead focused on Congress’ power under the 14 Amendment.
12 In fact, a careful reading of Burroughs reveals that the opinion is not even an
interpretation of Article II, §1 at all (as presumed in the ACORN case and by Justice Black
in Oregon v. Mitchell), but rather an interpretation (albeit uncited) of Article I, §8, cl. 18,
the Necessary and Proper Clause. See quoted text accompanying note 6.
13 U.S. Const., Amend. XIII (prohibiting slavery), Amend. XIV (due process and equal
protection) and Amend. XV (voting rights).
14 “The rights of citizens to vote shall not be denied . . . on account of sex.”
15 “The rights of citizens to vote . . . shall not be denied . . . by reason of failure to pay a poll
tax . . . .”
16 “The right of citizens . . . to vote shall not be denied . . . on account of age.”
17 See, e.g., Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (codified as
amended at 42 U.S.C. §§ 1971, 1973-1973bb-1 (1992)). For background on the Voting
Rights Act, see Whitaker, L. Paige, The Voting Rights Act of 1965: A Legal Overview
(CRS Report 91-736A).
laws, and section 5 of that Amendment provides that the Congress has the power to
legislate to enforce its provisions. Thus, in Katzenbach v. Morgan,18 the Court held
that §5 of the Fourteenth Amendment authorized Congress not just to enforce the
provisions of the Fourteenth Amendment as defined by the courts, but to help define
its scope. In Katzenbach, the Court upheld a portion of the Voting Rights Act of
1965 which barred the application of English literacy requirements to persons who
had reached sixth grade in a Puerto Rican school taught in Spanish.
In Flores v. City of Boerne,19 however, the Court limited the reach of this
authority. In Flores, the Court struck down the Religious Freedom Restoration Act
(RFRA)20 as beyond the authority of Congress under §5 of the Fourteenth
Amendment. RFRA, passed in response to the 1990 Supreme Court case of Oregon
v. Smith,21 was an attempt by the Congress to reinstate the compelling governmental
interest test which had been used to challenge the application of generally applicable
laws to religious institutions.
The Flores case arose when the City of Boerne denied a church a building
permit to expand, because the church was in a designated historical district. The
church challenged this action, asserting that the city had not demonstrated a
compelling interest in applying its zoning legislation to the church as required by
RFRA. In striking down RFRA, the Supreme Court held that there must be a
"congruence and proportionality" between the injury to be remedied and the law
adopted to that end. RFRA focused on no one area of alleged harm to religion, but
rather broadly inhibited the application of all types of state and local regulations to
religious institutions. Since the Court found no pattern of the use of neutral laws of
general applicability to disguise religious bigotry and animus against religion, it
found RFRA to be an overbroad response to a relatively nonexistent problem.
Similarly, it might be difficult to justify an overall regulation of state and local
elections based on the Fourteenth Amendment, absent a strong showing of systemic
disenfranchisement of voters. Rather, Flores would seem to dictate that the Congress
would need to establish narrow proposals showing that particular voting procedures
threatened constitutional rights, and that the legislation was a congruent and
proportional response to such threat.
For instance, the question has been raised as to whether the recent case of Bush
v. Gore,22 which found Equal Protection concerns regarding the disparate treatment
of voters, would support congressional legislation to standardize voting technologies
and procedures. A close examination of that case, however, would seem to indicate
that the Supreme Court did not intend to significantly extend the application of the
18 384 U.S. 641 (1966).
19 521 U.S. 507 (1997).
20 42 U.S.C. §2000bb et seq.
21 494 U.S. 872 (1990)(neutral generally applicable laws may be applied to religious
practices even if the law is not supported by a compelling governmental interest).
22 121 S. Ct. 525 (2000).
Equal Protection Clause, and consequently the Court may not be amenable to the
expansion of congressional authority in this area.
In Bush v. Gore, a dispute arose regarding, among other things, how to count
punch-card election ballots where the paper “chads” had not been fully dislodged.
The Supreme Court held that the failure of the Florida Supreme Court to set
standards for evaluating these ballots violated the Equal Protection Clause of the 14th
Amendment. On its face, this would appear to make it more likely that Congress
could pass legislation under §5 of the 14th Amendment to avoid these or similar
problems. Under the previously discussed case law, such laws would be valid if
Congress could establish that disparity in the use of voting technologies and
procedures has historically resulted in violations of the Equal Protection Clause.23
In fact, it would be likely that Congress could establish a record of disparity in
the application of voting technologies and procedures, as states have historically
delegated authority over elections to lesser subdivisions such as electoral districts.
These subdivisions, in turn, choose voting methods and procedures appropriate to
their size, density and budget, with only general guidance from the state legislatures.
Thus, significant variations in voting technologies and procedures probably do occur
in most states. There is language in Bush v. Gore, however, which would make it
unlikely that such variations would be found to be a violation of the Equal Protection
Clause. In essence, this language appears to limit the holding in Bush v. Gore to only
those election procedures that are under the control of a judicial officer.
“The recount process, in its features described here, is inconsistent with the
minimum procedures necessary to protect the fundamental right of each voter
in the special instance of a statewide recount under the authority of a single
state judicial officer. Our consideration is limited to the present
circumstance, for the problem of equal protection in election processes
generally presents many complexities . . . . The question before the Court is
not whether local entities, in the exercise of their expertise, may develop
different systems for implementing elections. Instead, we are presented with
a situation where a state court with the power to assure uniformity has
ordered a statewide recount with minimal procedural safeguards. When a
court orders a statewide remedy, there must be at least some assurance that
the rudimentary requirements of equal treatment and fundamental fairness be
Based on the above language, disparity in voting procedures is only likely to rise
to the level of constitutional violation when such disparate procedures are under the
authority of single judicial officer, such as during a recount. It is not clear that the
Congress could establish a history of voting discrimination in these circumstances.
Nor is it likely that the Court would find significant intrusions on state or local
election district authority to set technology or procedure standards to be
proportionate and congruent to such violations as have existed. Consequently, it
would appear that the impact of the case of Bush v. Gore on the issue of
congressional authority over elections would be minimal.
23 See University of Alabama v. Garret,148 L. Ed. 2d 866 (2000).
The Congress has expansive authority to spend money for the general welfare,
which would encompass making monies available to state and local governments to
modify their election procedures.24 Further, the allocation of such grant monies could
be conditioned on compliance by state or local officials with national standards for
election procedures.25 Such grant conditions need not be limited by the authority of
Congress discussed above to directly legislate on the issue, but could address election
procedures regardless of whether they were for the House, Senate, Presidency, state
or local elections.26
24 U.S. Const., Art. I, §8, cl. 1. provides that “The Congress shall have Power To lay and
collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common
Defence and general Welfare of the United States. . . .”
25 South Dakota v. Dole, 483 U.S. 203 (1987)(Congress may condition grants to states based
on criteria related to the underlying grant scheme).
26 483 U.S. at 208-09.