The success of a federal system depends to some degree on maintaining the autonomy of its federal and constituent units of governments, and nothing, it seems, could be more threatening to that autonomy than to divest a government of the authority to control its own internal democratic processes. Nevertheless, in a vivid demonstration of the U.S. Constitution’s preference for blending rather than strictly dividing power, the American federal system allocates to each level of government considerable authority to regulate elections conducted by the other.
The Constitution’s original allocation of regulatory authority over elections reflected the framers’ fear that the national government might become dangerously powerful and independent. While taking for granted that states would exercise exclusive control over their own internal democratic processes, the framers provided numerous avenues by which states might indirectly restrain the national government by influencing national political processes. Thus, Article I, Section 2, provides that eligibility to vote in congressional elections is controlled not by federal law, but by state law. Article II, Section 1, authorizes states to determine eligibility to vote for presidential electors, and even permits state legislatures to dispense with popular presidential elections altogether and select the state’s presidential electors themselves, as many state legislatures did during the nation’s first few decades. Under the original constitutional plan, each state legislature also directly appointed the state’s two senators, although the Seventeenth Amendment replaced this system in 1913 with one of direct popular election.
Article I, Section 4, goes even further by providing that the “Times, Places and Manner” of holding congressional elections are to be regulated in the first instance by state law. Although Article I, Section 4, also authorizes Congress to “make or alter” state regulations, Congress has used this authority sparingly. Consequently, virtually every aspect of federal elections has long been regulated principally by detailed state election codes.
Following the Civil War, however, aspects of state electoral processes were regulated increasingly at the national level. Much of the necessary authority was provided in a series of constitutional amendments that restricted states’ regulatory discretion while simultaneously granting Congress explicit enforcement authority. These amendments included provisions curtailing the states’ discretion to deny the franchise on the basis of race, sex, or failure to pay a poll tax, and to set the age of voting eligibility higher than 18.
The Equal Protection Clause of the Fourteenth Amendment also imposes numerous restraints on the authority of states to structure their internal electoral processes as they see fit. Most importantly, the clause requires states to apportion representation in the state legislature and in Congress according to a principle of one person, one vote. This means that states must draw election districts such that, for any particular elected body, each election district contains roughly equal numbers of people. The clause has also been held to prohibit “vote dilution” through gerrymandering or the use in certain circumstances of at-large voting systems, and to limit the authority of states to impose lengthy residency requirements or property ownership as prerequisites to voting. Following the 2000 presidential election, the Supreme Court ruled that the Equal Protection Clause limits the kinds of procedures that states may use in counting ballots. Furthermore, the First Amendment’s protection of free speech severely limits the power of states to regulate political speech, the activities of political parties, age of voting eligibility higher than 18, and the spending and donation of money in political campaigns.
Congress has invoked its constitutional authority to regulate state elections only rarely, but when it has done so its actions sometimes have been powerful and intrusive. By far the strongest of these federal statutes is the Voting Rights Act, enacted by Congress using its power to enforce the Fifteenth Amendment’s prohibition on racial discrimination in voting. The act’s most invasive provision, Section 5, identifies states and counties with significant histories of racial discrimination in electoral processes and prohibits them from adopting any changes to voting practices and procedures without the prior approval of the federal government.
Although the Constitution thus creates a formal system of substantially intermingled state and national authority over elections, an equally significant blurring of the boundaries of intergovernmental power has occurred outside the formal legal system under the auspices of the national political parties. In a development completely unanticipated by the framers, political parties quickly emerged and then organized themselves not into distinct state and national party systems, but into a single unified system in which the major parties coordinate partisan activity at both the state and national levels for the purpose of contesting offices at all levels. In this system, state and national officeholders are often able, in their capacity as party leaders, to exert significant influence on the way elections are conducted throughout the system, even where the formal allocation of authority might seem to deny them any influence. For example, although Congress has formally left the regulation of congressional apportionment to the states, members of Congress nevertheless typically exert significant influence on the way congressional districts, and even in many cases state legislative districts, are drawn by their state legislatures.
The extensive formal and informal interpenetration of state and national authority over elections has led to a certain degree of uniformity in electoral structures and practices around the nation. Nevertheless, states still possess considerable regulatory independence in certain areas, and have occasionally used this independence to grant their own citizens more extensive rights of political participation than the U.S. Constitution grants to Americans generally. Most prominently, states typically make many more offices elective than does the national government, including state-level cabinet posts, judicial positions, and numerous local offices. Many states provide opportunities for direct democracy through the initiative and referendum, and through requirements for popular approval of state or local fiscal measures. Some states impose tighter controls over elected officials than appear on the national level through the use of term limits, rotation in office requirements, or recall procedures. States have also occasionally introduced reforms such as nonpartisanship, alternative voting systems, innovative formats for primary elections, and remote voting electronically and by mail.
Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (New York: Basic Books, 2000); Larry D. Kramer, “Putting the Politics Back into the Political Safeguards of Federalism,” Columbia Law Review 100 (2000): 215–93; and G. Alan Tarr, Understanding State Constitutions (Princeton, NJ: Princeton University Press, 1998).
James A. Gardner
Last updated: 2006