Above: Noah Webster supported the Constitution, but warned that Congress should have no power over its own elections
This essay originally appeared in the March 11, 2021 Epoch Times
H.R. 1, the bill that would seize control of federal elections from the states, comes with an unusual twist. It supposedly promotes “access.” But it says anyone challenging its constitutionality is barred from every court in the nation but a single federal trial court in Washington, D.C.!
Under H.R. 1, some citizens get more access than others.
Mark Twain is said to have quipped that history doesn’t repeat itself, but often rhymes. And here’s one of those rhymes: Limiting challengers to one court in the nation sounds a lot like Founding-Era warnings that if Congress could regulate its own elections it might limit voters to one polling place per state. More on that shortly.
As my last essay noted, H.R. 1 claims to rely on three sections of the Constitution, two of which probably are irrelevant. The third is the Elections Clause (Article I, Section 4, Clause 1)—more appropriately called the Times, Places, and Manner Clause. It reads as follows:
“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 ….”
H.R. 1 quotes some out-of-context Supreme Court language to the effect that the italicized wording gives Congress broad authority to overrule state election law.
But the text of the Elections Clause tells a very different story, as does its history.
The text tells us that Congress’s power applies only to congressional elections. It doesn’t apply to presidential contests, as the drafters of H.R. 1 pretend.
In addition, the text focuses principally on the power of state legislatures. It adds Congress’s authority only in a subordinate clause. This subordinate clause is what lawyers and judges—both in the Founding Era and in modern times—call a “proviso.” Provisos traditionally are interpreted narrowly, leaving the earlier language (the state legislatures’ power) to be interpreted broadly. In this case, narrow interpretation means that if there’s reasonable doubt about whether Congress has authority, the issue is decided against Congress.
Now let’s look at the history:
When the Constitution was publicly debated, the proviso giving Congress power to revise state election laws was highly controversial. Even many of the Constitution’s supporters wanted it taken out. Dr. James McClurg of Virginia, who had served at the Constitutional Convention, was one of these. Another was Noah Webster, later famous for his American dictionary. Webster wrote an influential pamphlet strongly supporting the Constitution—but demanding that the proviso be removed.
Why the concern? They understood the danger of allowing incumbent politicians to dictate the laws governing their own re-election. Experience shows that if incumbents write the rules, they write the rules to suit themselves. A glaring example is how the Democrat sponsors of H.R. 1 seek to alter state voter registration systems to their own advantage.
Skeptical Founding-Era writers explained in detail how the proviso could be abused. They pointed out, for instance, that if Congress could fix a “Place” for election, it might severely limit the number of polling places and locate them to benefit incumbents. Thus, a congressman from Philadelphia might induce his colleagues to locate only one polling place in Pennsylvania—in the congressman’s own neighborhood in Philadelphia.
Sound familiar? It’s a lot like Democrat partisans providing that the one court where H.R. 1 can be challenged is in heavily Democrat Washington, D.C.
During the constitutional debates, there was so much public resistance to the proviso that advocates became very concerned. What if these few words led the public to reject the entire Constitution?
So advocates assured the public that Congress’s power over congressional elections would be extremely limited. They said the proviso was designed only for emergencies. As I reported in my 2010 study of the Elections Clause:
“[T]he proponents’ decisive argument … was one that had first been raised at the federal convention: that the Times, Places and Manner Clause was needed to enable Congress to preserve its own existence. In absence of a congressional power to regulate congressional elections, a group of states could destroy the House of Representatives by refusing to provide for those elections or by creating regulations designed to sabotage them. As a precedent, the Federalists alleged that Rhode Island had damaged the operations of the Confederation Congress by refusing to send delegates to that body. The Federalists made this argument over and over, using it to sway votes in crucial states.”
“In Maryland, convention delegate James McHenry added that … an insurrection or rebellion might prevent a state legislature from administering an election. As James Iredell told the North Carolina ratifying convention, ‘[a]n occasion may arise when the exercise of this ultimate power in Congress may be necessary … if a state should be involved in war, and its legislature could not assemble, (as was the case of South Carolina, and occasionally of some other states, during the late war).’”
Maryland’s famous jurist, Alexander Contee Hanson, added that Congress would exercise its “times, places, and manner” authority only in cases of invasion, legislative neglect, or obstinate refusal to pass election laws, or if a state crafted its election laws with a “sinister purpose” or to injure the general government. “It was never meant,” he wrote, “that congress should at any time interfere, unless on the failure of a state legislature, or to alter such regulations as may be obviously improper.”
Based on these assurances, the public accepted the proviso and ratified the Constitution.
Of course, the Constitution doesn’t actually say the proviso is limited to emergencies. But courts routinely consider the history behind a document’s words when deciding how broadly to interpret them. I explained above that the text tells us to construe the proviso narrowly. History backs this up.
Here’s an illustration of how the courts should apply Congress’s Election Clause authority. Suppose the question arises of whether “the manner of holding Elections” extends only to mechanics such as the form of the ballot, or also includes regulating campaigns. Narrow construction would give force to the Founding-Era evidence that “manner of holding” does not include campaigns.
Bottom line: The drafters of H.R. 1 were wrong to proclaim unlimited power to regulate federal elections and campaigns. On the contrary, the Elections Clause grants Congress only limited authority. A runaway Congress should never be permitted to seize more power than the Constitution gives it.
Post Script: After this essay was published, I was reminded of the following comment by James Madison in Federalist No. 44. It confirms the representation that Congress’s power to govern its own elections was to be used sparingly:
“And the election of the House of Representatives will equally depend on the same authority [officials of state governments] in the first instance; and will, probably, forever be conducted by the officers according to the laws of the States.“
And in Federalist No. 59, Alexander Hamilton said that Congress’s secondary power under the proviso merely gave “the national authority a right to interpose, whenever extraordinary circumstances might render that interposition necessary to its safety.”
In other words, this was a power to be used in “extraordinary circumstances” to protect the federal government from dissolution. It was not designed to massively alter election rules for the benefit of one political party.
Finally, regarding H.R. 1’s provision giving felons the right to vote: In Federalist Nos. 59 and 60, Hamilton addressed possible abuses of Congress’s power to override state congressional election law. He pointed out that Congress’s power did not include authority to change the qualifications of voters. They were fixed at the state level because they were tied to qualifications for voting for the lower house of the state legislature. In Federalist No. 60 he wrote,
But this forms no part of the power to be conferred upon the national government. Its authority would be expressly restricted to the regulation of the times, the places, the manner of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.
Section 1403 of H.R. 1, purporting to force states to allow felons to vote, is unconstitutional.
(No doubt the sponsors would argue that it is constitutional under the 14th amendment, but the amendment has never been interpreted so broadly as to allow Congress to disregard other specific constitutional rules.)