GAO-01-470
Report to the Congress
United States General Accounting Office
GAO
March 2001
ELECTIONS
The Scope of
Congressional
Authority in Election
Administration
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B-287313
March 13, 2001
The President of the Senate
The Speaker of the House of Representatives
Events surrounding the last presidential election have led to intense
national interest in voting processes and the administration of elections.
As part of the broad congressional interest in this issue, we received a
joint inquiry from Senator Trent Lott, Republican Leader; Senator Tom
Daschle, Democratic Leader; Senator Mitch McConnell, Chairman, and
Senator Christopher Dodd, Ranking Member, of the Senate Committee on
Rules and Administration. The Senators asked that we review the current
federal role, and limitations thereof, in the administration of elections.
In order to address the federal role in election administration, we
reviewed: (1) the constitutional framework for the administration of
elections, focusing on Congress’ authority to regulate congressional,
presidential, and state and local elections, as well as its authority to
provide grants to support election processes; and (2) major federal
statutes enacted in the area of election administration.
In summary, the constitutional framework for elections contemplates both
state and federal roles. States are responsible for the administration of
both their own elections and federal elections. States regulate various
phases of the elections process and in turn incur the costs associated with
these activities.
Notwithstanding the state role in elections, Congress has authority to
affect the administration of elections in certain ways. Congressional
authority to legislate in this area derives from various constitutional
sources, depending upon the type of election. With regard to the
administration of federal elections, Congress has constitutional authority
over both congressional and presidential elections.
• Congress’ authority to regulate congressional elections derives
primarily from Article I, Section 4, Clause 1 of the Constitution (known
as the Elections Clause). The Elections Clause provides that the states
will prescribe the “Times, Places and Manner” of congressional
elections, and that Congress may “make or alter” the states’ regulations
at any time, except as to the places of choosing Senators. The courts
United States General Accounting Office
Washington, DC 20548
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have held that the Elections Clause grants Congress broad authority to
override state regulations in this area. Therefore, while the Elections
Clause contemplates both state and federal authority to regulate
congressional elections, Congress’ authority is paramount to that of the
states.
• With respect to presidential elections, the text of the Constitution is
more limited. Specifically, Article II, Section I, Clause 4, provides that
“Congress may determine the Time of chusing the Electors, and the
Day on which they shall give their Votes; which Day shall be the same
throughout the United States.” Despite this limited language, the
Supreme Court and federal appellate courts have upheld certain federal
statutory provisions regulating presidential elections that go beyond
regulating the “time” of choosing the electors. However, because
federal legislation that relates solely to the administration of
presidential elections has been fairly limited, case law on this subject
has been sparse. Consequently, the precise parameters of Congress’
authority to pass legislation relating to presidential elections have not
been clearly established.
For state and local elections, Congress does not have general
constitutional authority to legislate regarding the administration of these
elections. However, Congress has the authority, under a number of
constitutional amendments, to enforce prohibitions against specific
discriminatory practices in all elections, including federal, state and local
elections. For example, constitutional amendments prohibit voting
discrimination on the basis of race, color, or previous condition of
servitude (Fifteenth Amendment), sex (Nineteenth Amendment), and age
(Twenty-sixth Amendment). In addition, the Equal Protection Clause of
the Fourteenth Amendment provides that no state shall “deny to any
person within its jurisdiction the equal protection of the laws.” Each of
these Amendments contains an enforcement clause, allowing Congress to
pass legislation to enforce the substantive rights promised in the
Amendment. In addition to direct regulation of the administration of
elections, Congress may, in the exercise of its spending power, encourage
state action by attaching certain conditions to the receipt of federal funds.
Congress has passed legislation relating to the administration of both
federal and state elections, pursuant to its various constitutional powers.
Federal legislation has been enacted in several major functional areas of
the voting process, as described in more detail below. These areas include
the timing of federal elections; voter registration; absentee voting
requirements; accessibility provisions for the elderly and handicapped;
and prohibitions against discriminatory voting practices.
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The constitutional framework for elections contemplates both state and
federal roles. States, in the first instance, regulate the elections process,
including, for example, ballot access, registration procedures, absentee
voting requirements, establishment of polling places, provision of election
day workers, and counting and certification of the vote. The states in turn
incur the costs associated with these activities. As described by the
Supreme Court, “the States have evolved comprehensive, and in many
respects complex, election codes regulating in most substantial ways, with
respect to both federal and state elections, the time, place, and manner of
holding primary and general elections, the registration and qualifications
of voters, and the selection and qualification of candidates.”
1
While
election policy and procedures are legislated primarily at the state level,
states typically have decentralized this process so the details of
administering elections are carried out at the city or county levels, and
voting is done at the local level.
Although the states are responsible for running elections, Congress has
authority to affect the administration of elections. Congress’ authority to
regulate elections derives from various constitutional sources, depending
upon the type of election. With regard to federal elections, Congress has
constitutional authority over both congressional and presidential
elections. Article I, Section 4, Clause 1, known as the Elections Clause,
provides Congress with broad authority to regulate congressional
elections:
“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, except as to the
Places of chusing Senators.”
Article II, Section 1, Clause 4, pertains to Congress’ power to set the time
of choosing of presidential electors:
“The Congress may determine the Time of chusing the Electors, and the Day on
which they shall give their Votes; which Day shall be the same throughout the
United States.”
In addition, with respect to federal, state and local elections, a number of
constitutional amendments authorize Congress to enforce prohibitions
against specific discriminatory practices.
Constitutional
Framework
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Congress’ authority to regulate congressional elections derives primarily
from the Elections Clause, quoted above. The Elections Clause requires, in
the first instance, that the states are to prescribe the times, places and
manner of holding elections for Senators and Representatives.
2
Congress,
under the Elections Clause, “may at any time by Law make or alter such
Regulations, except as to the Places of chusing Senators.”
3
The Elections Clause is broadly worded and has been broadly interpreted
by the courts. As early as 1879, in Ex Parte Siebold, the Supreme Court
found Congress’ powers to regulate congressional elections to be plenary
and paramount.
4
The Court in Siebold upheld the power of Congress to
impose penalties for the violation of state election laws regulating the
election of members to the House of Representatives. Petitioners in the
case (who were election officials convicted under the statute) argued that
Congress had no constitutional power to make partial regulations intended
to be carried out in conjunction with regulations made by the state. They
argued that, under the Elections Clause, when Congress makes any
regulation on the subject, it must assume exclusive control of the whole
subject.
5
The Court rejected this argument, stating that the power to
regulate congressional elections “may be exercised as and when Congress
sees fit to exercise it” and “[w]hen exercised, the action of Congress, so far
as it extends and conflicts with the regulations of the State, necessarily
supersedes them. This is implied in the power to ‘make or alter.’”
6
Similarly, in 1884, the Supreme Court, in Ex Parte Yarbrough, upheld the
authority of Congress under the Elections Clause to enact federal criminal
code provisions protecting the act of voting in congressional elections
from violence and intimidation.
7
The Court, noting that it was not until
1842 that Congress took any action under the Elections Clause, stated that
“it is only because the Congress of the United States, through long habit
and long years of forbearance, has, in deference and respect to the States,
refrained from the exercise of these powers, that they are now doubted.”
8
Referring to previous actions Congress had taken to protect the integrity
of the elections process, the Court stated that when Congress “finds it
necessary to make additional laws for the free, the pure, and the safe
exercise of this right of voting, they stand upon the same ground and are
to be upheld for the same reasons.”
9
In the Supreme Court’s 1932 decision in Smiley v. Holm, the Court dealt
with the legislative procedures states must follow in reapportioning
congressional districts.
10
The Court wrote that Congress has a general
supervisory power over the whole subject of congressional elections, and
stated that in exercising this power Congress “may supplement…state
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regulations or may substitute its own.”
11
In frequently quoted dicta, the
Court found the “comprehensive words” of the Elections Clause to:
“ . . . embrace 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 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.”
12
Subsequent decisions have similarly acknowledged Congress’ broad
powers under the Elections Clause. In 1941, the Supreme Court, in United
States v. Classic, construed the Elections Clause, as a means of protecting
the integrity of elections, to grant Congress the authority to regulate
congressional primary elections.
13
The Court in Classic held that where
state law makes the primary election a “necessary step” of choosing
representatives, such an election is an election within Congress’ power to
regulate under the Elections Clause.
14
As recently as 1997, the Supreme Court reiterated in Foster v. Love that
the Elections Clause invests the states with responsibility for the
mechanics of congressional elections, but only so far as Congress declines
to preempt state legislative choices.
15
The Court in Foster found that the
regulation of the time of elections for Representatives and Senators was a
matter on which the Elections Clause explicitly gave Congress the final
say, and thereby voided a conflicting state statutory scheme.
16
It is well
settled, wrote the Court, that the “Elections Clause grants Congress ‘the
power to override state regulations’ by establishing uniform rules for
federal elections, binding on the States.”
17
Federal appellate courts have also interpreted the Elections Clause as
conferring broad authority on Congress, in the context of challenges to the
National Voter Registration Act of 1993 (NVRA), known as the “motor
voter” law.
18
The three U.S. Court of Appeals cases discussed below upheld
the constitutionality of the NVRA, and in doing so addressed the extent to
which Congress may use the states to implement regulations enacted
under the Elections Clause.
The NVRA requires states to establish certain procedures to facilitate the
registration of voters in federal elections, both congressional and
presidential. Among other duties imposed on the states, the Act requires
states to allow registration by mail, in person during application for a
Page 6 GAO-01-470 Elections: Congressional Authority
driver’s license, and in person at various types of state agencies and
offices. Three states—Illinois, California, and Michigan—refused to
comply with NVRA, arguing that Congress overstepped its authority to
regulate federal elections. The appellate courts rejected their claims in
ACORN v. Miller, 129 F.3d 833 (6th Cir. 1997) (Michigan); Voting Rights
Coalition v. Wilson, 60 F.3d 1411 (9th Cir. 1995), cert. denied, 516 U.S. 1093
(1996) (California); and ACORN v. Edgar, 56 F.3d 791 (7th Cir. 1995)
(Illinois).
In all three cases, the courts found that the NVRA was a permissible
exercise of Congress’ broad authority to “make or alter” regulations
regarding federal elections under the Elections Clause.
19
Thus, for
example, the court in Wilson stated that “the Supreme Court has read the
grant of power to Congress in Article 1, section 4, as quite broad,”
20
and
that NVRA, “on its face, fits comfortably within its grasp.”
21
The courts rejected arguments advanced by the states that Congress was
prohibited by the Tenth Amendment
22
from imposing upon states the
burden of administering the federal voter registration program. The states
relied primarily on New York v. United States, in which the Supreme Court
held that Congress was not authorized under the Commerce Clause to
directly compel the states to enact and enforce a federal regulatory
program.
23
In rejecting the Tenth Amendment arguments advanced by the
states, the NVRA courts, in general, distinguished New York on the basis
that the Elections Clause, unlike the Commerce Clause, empowers
Congress to impose on the states precisely the burden at issue.
24
As
described by the court in Edgar,
“[The Elections Clause] does not authorize Congress only to establish a system of
federal voter registration. The first sentence, remember, requires the states to create
and operate such a system and the second authorizes Congress to alter the state’s
system—but it is still the state’s system, manned by state officers and hence paid for
by the state.”
25
The court in Miller likewise observed that the Elections Clause “explicitly
grants Congress the authority to force states to alter their regulations
regarding federal regulations, and does not condition its grant of authority
on federal reimbursement.”
26
The NVRA cases did, however, suggest that Congress’ power under the
Elections Clause may not be limitless. For example, the court in Edgar
recognized that there could be circumstances where Congress might go so
far in regulating state activity that it would be beyond “merely altering the
Page 7 GAO-01-470 Elections: Congressional Authority
state’s regulation of federal elections.”
27
This court posited what it referred
to as the “extraordinarily unlikely” scenario whereby Congress might
conscript “all employees of the state [to be] full-time federal voting
registrars in order to make sure that every eligible federal voter in every
state was registered.”
28
In addition, while the court in Wilson recognized
Congress’ broad powers under the Elections Clause, it expressed
sensitivity to the significant costs that states may incur in carrying out
congressional election regulations.
29
While the Constitution contemplates broad state and federal authority to
regulate congressional elections, Congress’ authority under the Elections
Clause has been interpreted to be paramount to that of the states.
30
The
Supreme Court has clearly stated that the Elections Clause grants
Congress the power to override state regulations by establishing uniform
rules for federal elections, binding on the States.
31
While Congress has the explicit authority under the Elections Clause to
regulate the times, places, and manner of congressional elections, with
respect to presidential elections, Article II, Section 1, Clause 4 simply
provides that the “Congress may determine the Time of chusing the
Electors, and the Day on which they shall give their Votes; which Day shall
be the same throughout the United States.” At the time of the
Constitution’s adoption in 1787, general elections for President were not
contemplated.
32
The Constitution provides, instead, for the election of the
President by electors appointed by each state.
33
The state legislatures are
empowered to direct the manner in which the electors shall be
appointed,
34
and all 50 states and the District of Columbia, in turn,
currently provide that presidential electors be elected by popular vote.
The Supreme Court and federal appellate courts have construed Congress’
authority to regulate presidential elections as being broader than merely
regulating the time of choosing presidential electors.
35
However, as
discussed below, the precise parameters of Congress’ authority to pass
legislation relating to presidential elections have not been clearly
established.
A key ruling in the area of congressional regulation of presidential
elections is the Supreme Court’s 1934 decision in Burroughs v. United
States.
36
In Burroughs, the Court addressed the constitutionality of the
Federal Corrupt Practices Act, which imposed various bookkeeping and
reporting requirements on political committees accepting contributions or
making expenditures to influence presidential elections. The Act also
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Regulate Presidential
Elections
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contained criminal penalties. In upholding a prosecution under the Act,
the Court recognized the power of Congress to regulate certain aspects of
presidential elections, reasoning, in part, that the narrow view of limiting
Congress’ authority to only that of determining the time of choosing the
electors, and the day on which they shall give their votes, “is without
warrant.”
37
In light of the federal functions that presidential electors serve
and the importance of the presidency, the Court reasoned that:
“While 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, whether threatened by
force or by corruption.”
38
The Court also recognized that the legislation did not interfere with the
states’ constitutional powers to determine the manner in which it appoints
presidential electors.
39
In particular, the Court found that “[n]either 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,” but
instead regulated the operation of national political committees, which
were, “if not beyond the power of the state to deal with at all, are beyond
its power to deal with adequately.”
40
Although the Burroughs case dealt with legislation that regulated third
parties, as opposed to direct regulation of the states, federal courts have
relied on the Supreme Court’s decision for the proposition that Congress
has the authority to regulate presidential elections. The three federal
appellate court cases addressing challenges to the NVRA, discussed above,
each rely on Burroughs for the proposition that Congress has such
authority. For example, the court in Voting Rights Coalition v. Wilson
stated that, under Burroughs, “[t]he broad power given to Congress over
congressional elections has been extended to presidential elections,” while
the court in ACORN v. Edgar cited Burroughs
for the proposition that
Congress’ authority over presidential elections is “coextensive” with
Congress’ Election Clause authority over congressional elections.
41
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The precise parameters of Congress’ authority to pass legislation relating
to presidential elections are not as clearly established as Congress’
authority over its own elections. Congress’ constitutional authority over
presidential elections is textually more limited than its authority over its
own elections. More specifically, whereas Congress’ authority under the
Elections Clause provides for the regulation of times, places, and manner
of congressional elections, its authority over presidential elections, at
Article II, Section 1, Clause 4, simply provides that Congress may
determine the time of choosing presidential electors. Despite this
distinction, Congress’ authority to regulate presidential elections is clearly
not confined only to matters related to timing. However, federal legislation
relating solely to the administration of presidential elections has been
fairly limited and, therefore, federal case law on the subject is also rather
sparse.
Congress does not have general authority under the Constitution to
legislate regarding the administration of state and local elections.
However, Congress has the authority under a number of constitutional
amendments to enforce prohibitions against specific discriminatory
practices in all elections, including federal, state and local elections. These
constitutional amendments prohibit voting discrimination on the basis of
race, color, or previous condition of servitude (Fifteenth Amendment), sex
(Nineteenth Amendment), any poll tax or other tax (Twenty-fourth
Amendment), and age (Twenty-sixth Amendment). In addition, the Equal
Protection Clause of the Fourteenth Amendment provides that no state
shall “deny to any person within its jurisdiction the equal protection of the
laws.” Each of these Amendments contains an enforcement clause, which
grants Congress legislative authority to enforce the substantive rights
promised by the Amendment.
The major piece of federal legislation that prohibits states from engaging
in discriminatory voting practices is the Voting Rights Act of 1965, as
amended.
42
In a string of cases addressing the constitutionality of the
Voting Rights Act, the Supreme Court has mapped out the Fourteenth and
Fifteenth Amendment contours of federal authority to enact
nondiscrimination legislation in the voting context. The Court has upheld
numerous provisions of the Act against federalism challenges. See South
Carolina v. Katzenbach, 383 U.S. 301 (1966) (upholding the requirement for
federal preclearance
43
of state election law changes, the appointment of
federal election examiners, and the suspension of literacy tests as a voting
prerequisite in covered jurisdictions); Katzenbach v. Morgan, 384 U.S. 641
(1966) (upholding the abolition of English-language literacy tests as a
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voting prerequisite); Oregon v. Mitchell, 400 U.S. 112 (1970) (upholding the
suspension of literacy tests nationwide, the abolition of state durational
residency requirements as a prerequisite to voting in presidential elections,
the requirement for absentee balloting in presidential elections, and the
enfranchisement of eighteen-year olds in federal elections);
City of Rome v. United States, 446 U.S. 156 (1980) (upholding a
preclearance requirement that proposed election law changes have neither
a discriminatory purpose nor effect); and Lopez v. Monterey County, 525
U.S. 266 (1999) (upholding a requirement for federal preclearance of
election law changes in covered localities, notwithstanding that a
noncovered state mandated the change). However, the Supreme Court has
invalidated one provision of the Voting Rights Act. In Oregon v. Mitchell,
the Court found that Congress exceeded its authority by enfranchising
eighteen-year olds in state and local (as opposed to federal) elections. A
review of the above decisions indicates that Congress may subject states
and localities to voting legislation, provided that the legislation deters
discrimination of the type contemplated by the Fourteenth and Fifteenth
Amendments.
A recent Supreme Court application of constitutional standards in the
voting rights context is contained in Bush v. Gore.
44
The Court, in
determining whether manual recount procedures adopted by the Florida
Supreme Court were consistent with the obligation to avoid arbitrary and
disparate treatment of the electorate, found a violation of the Equal
Protection Clause of the Fourteenth Amendment. In the 5-4 ruling, the per
curiam opinion stated, “The right to vote is protected in more than the
initial allocation of the franchise. Equal protection applies as well to the
manner of its exercise. Having once granted the right to vote on equal
terms, the State may not, by later arbitrary and disparate treatment, value
one person’s vote over that of another.”
45
However, the opinion explicitly
limited the analysis to the set of facts presented, specifically “the special
instance of a statewide recount under the authority of a single state
judicial officer.”
46
It remains to be seen how far the courts will go in the
future with the application of equal protection in the voting context.
Aside from the direct regulation of election administration, Congress may,
in exercising its spending power,
47
encourage state action by attaching
conditions to the receipt of federal funds.
48
In South Dakota v. Dole, for
example, the Supreme Court held that Congress could withhold federal
highway funds from states failing to adopt Congress’ choice of a minimum
drinking age.
49
The Court found that Congress could act indirectly under
its spending power to encourage state action even if Congress lacked the
Other Congressional
Authorities
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power to regulate directly.
50
The Court, however, in noting that the
spending power is not unlimited, enumerated the following restrictions on
the spending power: (1) the exercise of the spending power must be in
pursuit of the general welfare; (2) such conditional grants must be done in
an unambiguous manner whereby states can exercise their choice
knowingly, cognizant of the consequences of their participation;
(3) conditions on federal grants must be related to the federal interest in
particular national projects or programs; and (4) other constitutional
provisions may provide an independent bar to the conditional grant of
funds.
51
The Court also recognized that “in some circumstances the
financial inducement offered by Congress might be so coercive as to pass
the point at which ‘pressure turns into compulsion.’”
52
Nonetheless, the
Court recognized that “the constitutional limitations on Congress when
exercising its spending power are less exacting than those on its authority
to regulate directly.”
53
Congress has legislated regarding the administration of elections, both for
federal elections and in certain cases at the state level. The authority for
such legislation is grounded in the Constitution, as discussed earlier.
However, attempting to categorize particular election laws according to
their constitutional underpinnings can be challenging, given that more
than one source of authority may potentially apply.
54
Therefore, the
following discussion of major federal election administration statutes is
presented by functional areas in the voting process: (1) timing of federal
elections; (2) voter registration; (3) absentee voting requirements; (4)
accessibility provisions for the elderly and handicapped; and (5)
prohibitions against discriminatory voting practices.
55
Congress has passed several pieces of legislation with respect to the
timing of congressional and presidential elections. In 1872, under its
Elections Clause authority, Congress first set a date for the popular
election of Representatives.
56
After the method of selecting Senators was
changed by the Seventeenth Amendment in 1913 from being chosen by the
state legislatures to being chosen by popular vote, Congress in 1914 set the
same date for the election of Senators.
57
Congress has also established a
date for the selection of presidential electors
58
under its Article II, Section
1 authority to determine the time of choosing of presidential electors.
59
These statutory provisions, in concert, mandate “holding all elections for
Congress and the Presidency on a single day throughout the Union.”
60
Major Federal
Statutes
Timing of Federal
Elections
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The Supreme Court has held that federal laws regulating the time of
elections for Representatives and Senators is a matter on which the
Elections Clause gives Congress the final say. In its 1997 decision,
Foster v. Love, the Supreme Court struck down a Louisiana state statutory
scheme because it conflicted with federal laws regulating the time of
federal elections.
61
The Court noted that its judgment was “buttressed by
an appreciation of Congress’s object ‘to remedy more than one evil arising
from the election of members of Congress occurring at different times in
the different States.’”
62
The Foster Court indicated that Congress was
concerned with both the “distortion of the voting process threatened when
the results of an early federal election in one State can influence later
voting in other States,” and “the burden on citizens forced to turn out on
two different election days to make final selections of federal officers in
Presidential election years.”
63
As discussed earlier, one of the key pieces of federal legislation in the area
of registration is the National Voter Registration Act of 1993 (NVRA).
64
Congress enacted NVRA to establish registration procedures designed to
“increase the number of eligible citizens who register to vote in elections
for Federal office,” without compromising “the integrity of the electoral
process” or the maintenance of “accurate and current voter registration
rolls.”
65
NVRA requires all states to adopt the federal voter registration procedures
detailed in the Act, except for those states that have no registration
requirements or that permit election-day registration with respect to
federal elections.
66
The centerpiece of NVRA is the requirement that states
must allow applicants for driver’s licenses to register to vote on the same
form.
67
In addition, NVRA requires states to provide voter registration
forms and accept completed applications at various state agencies,
including any office in the state providing public assistance, any office in
the state that provides state-funded disability programs, and other
agencies chosen by the state, such as state licensing bureaus, county
clerks’ offices, public schools and public libraries.
68
NVRA also requires
the Federal Election Commission to develop a national mail-in voter
registration form, which states must use and accept.
69
Under NVRA, states
must designate a chief election official responsible for implementing the
requirements of the Act.
70
NVRA also contains detailed requirements regarding when a state may
purge a voter from the federal registration rolls. These requirements are
designed to ensure that any state purge program is uniform,
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nondiscriminatory, and consistent with the Voting Rights Act and does not
exclude a voter from the rolls solely because of his or her failure to vote.
71
Three federal appellate courts, as discussed earlier, have upheld the
constitutionality of the NVRA’s voter registration provisions for federal
elections principally based on Congress’ Elections Clause authority. These
courts each cite the Supreme Court’s decision in Burroughs v. United
States for the proposition that Congress has the authority to regulate
presidential elections.
72
Along with the registration requirements contained in NVRA, states are
also required to follow certain other restrictions related to registration.
For example, Section 202 of the Voting Rights Act permits otherwise
qualified residents of a state to vote in presidential elections regardless of
any state durational residency requirement, provided such residents apply
for registration no later than 30 days prior to the election (or a lesser
period if state law permits).
73
The Act also requires that if a citizen moves
to another state after the 30th day preceeding a Presidential election, that
person may vote in his or her former state.
74
Congress has provided statutory protections for the rights of certain
individuals to register and vote absentee in federal elections. The
Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA)
75
requires states to permit (1) uniformed services voters and all other voters
living overseas, and (2) uniformed services voters and their dependents
within the U.S., but living out of their voting jurisdictions, to vote by
absentee ballot in federal elections. States must process all valid voter
registration applications received 30 days or more before the election.
76
UOCAVA provides for a presidential designee, currently the Secretary of
Defense, to carry out the Act and authorizes the Attorney General to bring
civil actions to enforce its requirements.
77
The Secretary of Defense
implements his UOCAVA responsibilities through the Federal Voting
Assistance Program. Among other things, UOCAVA requires the
designated official to compile and distribute information on state absentee
registration and voting procedures. The official is required to write a
report to the President and the Congress after each Presidential election
evaluating the effectiveness of assistance to voters provided under
UOCAVA, including a statistical analysis of voter participation and a
description of state-federal cooperation.
78
Absentee Voting
Requirements
Page 14 GAO-01-470 Elections: Congressional Authority
UOCAVA requires the designated official to prescribe a federal write-in
absentee ballot for all overseas voters in federal elections. The ballot is to
be used if the overseas voter applies for, but does not receive, a state
absentee ballot.
79
While state law, in general, governs the processing of
these federal write-in ballots, UOCAVA requires that states permit their
use in federal elections.
80
UOCAVA sets forth several federal requirements
concerning federal write-in ballots. First, the ballots may not be counted if
they are submitted from anywhere in the U.S., or if state election officials
have not received an application for a state absentee ballot at least 30 days
before the election, or if state election officials receive a timely state
absentee ballot.
81
Second, the overseas voter may write in a candidate’s
name or political party, and the vote must be counted regardless of minor
variations in the name of the candidate or party if the intent of the voter
can be ascertained.
82
UOCAVA has been challenged, unsuccessfully, on a variety of
constitutional grounds. Most notably, the Act has been challenged in
several cases under the Equal Protection Clause. In each of these cases,
federal courts have looked to whether there is a rational basis for
distinguishing between citizens who move from one state or U.S. territory
to another and citizens who move overseas. See Romeu v. Cohen
, 121
F.Supp.2d 264 (S.D.N.Y. 2000); Howard v. State Administrative
Board of Election Laws, 976 F.Supp. 350 (D.Md. 1996); Igartua de la
Rosa v. United States, 32 F.3d 8 (1st Cir. 1994). In these cases, the courts
concluded that UOCAVA did not violate the Equal Protection Clause
because the distinction between voters who moved outside the United
States versus those who moved within the country was rational, given that
voters who moved overseas could lose their right to vote in federal
elections while voters who moved within the United States were still
eligible to vote at their new place of residence.
In addition, there are other federal requirements with regard to absentee
voting. Section 202 of the Voting Rights Act contains protections for
citizens to vote absentee in elections for President and Vice President.
83
The provision requires, among other things, that each state provide by law
for the casting of absentee ballots in elections for President and Vice
President by qualified residents who may be absent from their election
district on the day of the election, if application is made not later than
seven days immediately prior to the election and the ballot is returned not
later than the time of poll closing in the state on election day.
84
Page 15 GAO-01-470 Elections: Congressional Authority
Congress has passed legislation intended to improve access for elderly and
handicapped individuals to registration facilities and polling places for
federal elections. The Voting Accessibility for the Elderly and
Handicapped Act of 1984 requires, with some exceptions, that political
subdivisions within each state that are responsible for conducting
elections assure that polling places and registration sites are accessible to
handicapped and elderly voters.
85
If the political subdivision is unable to
provide an accessible polling place, it must provide an alternate means for
casting a ballot on election day upon advance request by the voter.
86
The
Act’s requirements also include, for example, that each state or political
subdivision provide a reasonable number of accessible permanent
registration facilities, and that each state make available certain types of
voting and registration aids such as large-type instructions and
information by telecommunication devices for the deaf.
87
The Act has not
been the subject of court challenges related to federalism issues.
Congress has authority under various constitutional amendments to
enforce prohibitions against specific discriminatory practices. The Voting
Rights Act of 1965
88
codifies and effectuates the Fifteenth Amendment
89
guarantee that no person shall be denied the right to vote on account of
race or color. In addition, subsequent amendments to the Act expanded it
to include protections for members of language minority groups, as well as
other matters regarding voting registration and procedures. Some parts of
the Act apply to all elections nationwide, certain provisions apply
nationwide in the context of presidential general elections, and other
provisions apply only to elections in covered jurisdictions.
Section 2 of the Voting Rights Act establishes a nationwide ban against any
state or local election law that results in the denial or abridgement of any
citizen’s right to vote on account of race, color, or membership in a
language minority group.
90
The Voting Rights Act provides that plaintiffs
may establish a violation of Section 2 by demonstrating that “the political
processes leading to nomination or election” deny members of the
protected classes an equal opportunity to participate in the political
process and to elect representatives of their choice. A court, under the
Voting Rights Act, may also consider the extent to which members of the
protected class have been elected to office in the jurisdiction, though
Congress made clear that Section 2 does not confer upon protected
classes a right to proportional representation.
91
Section 201 of the Voting Rights Act prohibits all states and localities from
using any “test or device” to establish voter eligibility.
92
The Act generally
Accessibility Provisions
for the Elderly and
Handicapped
Prohibitions Against
Discriminatory Voting
Practices
Page 16 GAO-01-470 Elections: Congressional Authority
defines a “test or device” to mean proof of literacy, other educational
achievement, or good moral character.
93
Unlike the above sections, which are permanent provisions that apply to
all jurisdictions, Section 5 of the Voting Rights Act only applies to
“covered” jurisdictions for a specified duration. The jurisdictions targeted
for coverage are those evidencing discriminatory voting practices, based
upon a triggering formula, as defined in Section 4. According to this
formula, a jurisdiction is covered if it maintained “any test or device” as a
prerequisite to voting as of November 1, 1964, 1968, or 1972, and if less
than half of its electorate either registered or voted in that year’s
presidential election.
94
The Act presumes that a jurisdiction used a literacy
test on November 1, 1972 if more than 5 percent of its electorate
comprised a single language minority and the jurisdiction did not provide
bilingual election materials and assistance.
95
The Attorney General and the
Director of the Census have responsibility for determining which
jurisdictions are covered by the triggering formula, and their
determinations are not reviewable in any court and are effective upon
publication in the Federal Register.
96
Under Section 5 of the Act, “covered” jurisdictions may not change their
election practices or procedures until they obtain federal “preclearance”
for the change. The Act provides for either judicial or administrative
preclearance. Under the judicial mechanism, covered jurisdictions may
seek declaratory judgment from the United States District Court for the
District of Columbia that the change has neither the purpose nor the effect
of discriminating against protected minorities in exercising their voting
rights. Under the administrative mechanism, covered jurisdictions may
seek the same determination from the Attorney General. The Attorney
General may deny preclearance by interposing an objection to the
proposed change within 60 days of its submission.
97
The Voting Rights Act provides for the appointment of federal examiners
to enforce voting rights and federal observers to oversee the conduct of
elections. Federal examiners help to register voters by determining
whether a citizen meets state eligibility requirements and must be included
in the registration rolls.
98
States and localities may only challenge an
examiner’s eligibility determination through a federal review procedure.
99
Federal election observers monitor elections and report whether persons
entitled to vote were allowed to vote and whether their votes were
properly counted.
100
Page 17 GAO-01-470 Elections: Congressional Authority
A federal court, under the Voting Rights Act, may order the appointment of
federal examiners to any jurisdiction sued for a voting rights violation
under the Fourteenth or Fifteenth Amendment.
101
“Covered” jurisdictions
are also subject to the appointment of examiners where the Attorney
General certifies that he has received at least twenty meritorious written
complaints of voting discrimination or that he otherwise believes that the
appointment of examiners is necessary to protect voting rights.
102
Observers may be appointed in any jurisdiction where an examiner is
serving, upon request of the Attorney General.
103
Covered jurisdictions may seek release (“bail-out”) from coverage by filing
a declaratory judgment action in the United States District Court for the
District of Columbia.
104
To prevail in such an action, the jurisdiction must
establish that it has met specific conditions during the previous ten
years.
105
Regardless of whether a jurisdiction is released from coverage, the
Voting Rights Act does not impose coverage indefinitely on targeted
jurisdictions. Rather, the special restrictions applicable to covered
jurisdictions (i.e., the requirement for federal preclearance of election-law
changes and the imposition of federal election examiners and observers at
the authorization of the Attorney General) expire in 2007, unless Congress
amends the Act to extend coverage.
106
The Voting Rights Act contains another requirement that, absent
amendment, will expire in 2007: a requirement for bilingual elections in
selected jurisdictions.
107
Under Section 203 of the Act, certain states or
localities must provide bilingual election materials and assistance,
depending upon the concentration and literacy level of the language
minorities residing within the jurisdiction.
108
A state or locality may obtain
release from coverage in federal court by showing that the illiteracy rate of
the applicable language minority group is equal to or less than the national
illiteracy rate.
109
Regardless of whether the Act’s bilingual-election requirements apply, all
jurisdictions must comply with another provision of the Voting Rights Act,
which protects the rights of certain foreign-language voters. Under Section
4(e) of the Act, states may not deny, based on an English-language literacy
requirement, voting rights to any person who has successfully completed
the sixth grade in a foreign-language, American-flag school.
110
As discussed earlier, the Supreme Court has upheld numerous provisions
of the Voting Rights Act against federalism challenges. The Court first
addressed the constitutionality of the Voting Rights Act in South
Carolina v. Katzenbach, in which South Carolina challenged various
Page 18 GAO-01-470 Elections: Congressional Authority
provisions of the Act, including the suspension of literacy tests in states,
such as South Carolina, with a legacy of voting discrimination.
111
South
Carolina argued that it had the right to enforce its election laws absent a
determination that these laws violated the Fifteenth Amendment, and that
the power to make such a determination rested with the federal courts,
not with Congress, as it had effectively done through the Voting Rights
Act. The Court disagreed, finding that the enforcement clause of the
Fifteenth Amendment gave Congress the power to enact appropriate
legislation to guarantee voting rights. The Court held that the basic test to
be applied when Congress exercised its enforcement power under the
Fifteenth Amendment was whether the legislation was plainly adapted to
carry out the objects of the Amendment. Applying this test, the Court
found evidence that South Carolina and other states had used literacy tests
to disenfranchise racial minorities and that Congress had appropriately
exercised its enforcement power to suspend such tests in these states,
without the need for case-by-case adjudication.
112
In Katzenbach v. Morgan, the Supreme Court upheld Congress’ authority
under the Fourteenth Amendment enforcement clause to prohibit states
from imposing an English-language literacy requirement to disenfranchise
citizens educated in foreign-language, American-flag schools (in Morgan,
Puerto Rican schools).
113
As in South Carolina v. Katzenbach, the Supreme
Court rejected New York’s argument that Congress could not exercise its
enforcement power until the judicial branch determined whether the
specific state law was unconstitutional. The Court held that the
constitutionality of the English-language literacy ban turned on whether it
was legislation plainly adapted to carry out the objects of the Equal
Protection Clause. The Court further observed that the enforcement clause
represented a “positive grant of legislative power authorizing Congress to
exercise its discretion in determining whether and what legislation is
needed to secure the guarantees of the Fourteenth Amendment.”
114
The
Court then held that the English-language literacy ban was an appropriate
enactment under the Fourteenth Amendment because it served to enhance
minority political power and thus minority access to nondiscriminatory
public services.
115
In addition, the Court held that the ban was an
appropriate method of ending an invidious discrimination in establishing
voter qualifications.
116
In Oregon v. Mitchell, the Supreme Court addressed challenges to various
provisions of the Voting Rights Act Amendments of 1970.
117
Among other
things, the 1970 Amendments reduced the minimum voting age in any state
or local election from twenty-one years to eighteen years of age. Congress
claimed authority to enact this requirement under the Fourteenth
Page 19 GAO-01-470 Elections: Congressional Authority
Amendment, asserting that state laws setting the franchise at twenty-one
years of age denied due process and equal protection rights to eighteen-
year olds. While there was no single or majority opinion of the Court in
Mitchell, five of the Justices (in a 5-4 split) struck down the minimum
voting age provision as applied to state and local elections.
118
These
Justices found that the Constitution reserved to the states the power to
determine voter qualifications in state and local elections, subject only to
the express limitations imposed by constitutional amendments. These
Justices further found that the Equal Protection Clause does not protect
people between eighteen and twenty-one years from voting discrimination
and that Congress lacked authority to create a substantive constitutional
right on behalf of such a class.
119
In City of Rome v. United States, the Supreme Court turned its attention to
the standard of proof for obtaining federal preclearance of a proposed
election law change.
120
The Voting Rights Act requires covered jurisdictions
to establish that a proposed election law change has neither a
discriminatory purpose nor effect prior to implementation. The Court
stated that, even if the Fifteenth Amendment prohibited only purposeful
discrimination, Congress could still prohibit election law changes that
were unintentionally discriminatory. The Court stated that Congress, in
enforcing the Fifteenth Amendment, may prohibit practices that do not
themselves violate the Amendment, so long as the prohibition is an
“appropriate” method of promoting the Amendment’s purposes.
121
The
Court further held that the Fourteenth and Fifteenth Amendments were
“specifically designed as an expansion of federal power and an intrusion
on state sovereignty,” such that Congress’ power to enforce those
Amendments overcame principles of federalism that might otherwise
apply.
122
Finally, in Lopez v. Monterey County, the Supreme Court again considered
a matter related to the constitutionality of the federal preclearance
requirement.
123
Lopez involved an election law change proposed by a
noncovered state (California) to be effective in a covered locality
(Monterey County), and the Court determined as a threshold matter that
Congress intended the covered locality to seek preclearance, even though
a noncovered state proposed the change.
124
Upon reaching this conclusion,
the Court then considered whether such an interpretation violated
principles of federalism, given that the state was noncovered and was
therefore not guilty of voting rights discrimination. The Court nevertheless
concluded that such an intrusion on state power was constitutionally
permissible. Citing South Carolina v. Katzenbach and City of Rome
, the
Court noted that it had previously upheld Congress’s authority to impose a
Page 20 GAO-01-470 Elections: Congressional Authority
federal preclearance requirement upon covered jurisdictions and to
protect against election law changes that have a discriminatory effect in
those jurisdictions. As a result, the Court found no merit to the argument
that Congress lacked Fifteenth Amendment authority to require federal
preclearance of a state law that may have a discriminatory effect in a
covered county.
125
Please contact me on (202) 512-5400, or Lynn Gibson, Associate General
Counsel, on (202) 512-5156, if you have any questions concerning this
analysis. Jan Montgomery, Assistant General Counsel, and Geoffrey
Hamilton, Christine Davis, and Judy Clausen, Senior Attorneys, also made
key contributions to this analysis.
Anthony H. Gamboa
General Counsel
Page 21 GAO-01-470 Elections: Congressional Authority
ENDNOTES
1
Storer v. Brown, 415 U.S. 724, 730 (1974). State regulation of the elections
process must involve “generally applicable and evenhanded restrictions that
protect the integrity and reliability of the electoral process itself.”
Anderson v. Celebrezze, 460 U.S. 780, 788 n.9 (1983). The states are empowered
by Article I, Section 2, and the Seventeenth Amendment, to establish voter
qualifications determining who may vote in congressional elections. See generally
Katzenbach v. Morgan, 384 U.S. 641, 647 (1966). The states generally require U.S.
citizenship as a condition of voting.
2
U.S. Const. art. I, sec. 4, cl. 1. The policy of entrusting the conduct of elections to
state laws, administered by state officers, according to some of the Framers of the
Constitution, was deemed necessary because the fixing of the time, place, and
manner of such elections in the Constitution was found to be impossible. See
United States v. Gradwell, 243 U.S. 476, 484 (1917), citing to the Records of the
Federal Convention, Farrand, vol. 3, p. 311. A reply of Madison to Monroe in the
debates in the Virginia Convention further elaborates that, “It was found
necessary to leave the regulation of these, in the first place, to the state
governments, as being best acquainted with the situation of the people, subject to
the control of the general government, in order to enable it to produce uniformity,
and prevent its own dissolution.” Id.
3
U.S. Const. art. I, sec. 4, cl. 1. With respect to Senators, the Constitution
originally provided that Senators were to be chosen by state legislatures. U.S.
Const. art. I, sec. 3. The ratification of the Seventeenth Amendment in 1913
changed the method of choosing Senators to that of being chosen by popular vote.
The Seventeenth Amendment did not, however, repeal the language excepting the
“Places of chusing Senators” from congressional regulatory authority.
4
Ex Parte Siebold, 100 U.S. 371, 384, 388 (1879).
5
Id. at 382-84.
6
Id. at 384.
7
Ex Parte Yarbrough, 110 U.S. 651 (1884).
Page 22 GAO-01-470 Elections: Congressional Authority
8
Id. at 662. The Yarbrough Court noted that it was not until 1842 that Congress
took any action under the Elections Clause to regulate elections for the House of
Representatives by requiring the election of Representatives by districts. Id. at
660-661. This law ended a practice in some states “of electing on a single state
ticket all of the Members of Congress to which the State was entitled.”
United States v. Gradwell, 243 U.S. at 482.
9
Ex Parte Yarbrough, 110 U.S. at 662.
10
Smiley v. Holm, 285 U.S. 355 (1932).
11
Id. at 366-67.
12
Id. at 366.
13
United States v. Classic, 313 U.S. 299 (1941).
14
Id. at 320. The Court has noted, on occasion, that Congress’ Election Clause
authority to regulate congressional elections is augmented by the Necessary and
Proper Clause. The Court did so in Classic, stating that in addition to Congress’
authority under the Elections Clause, under the Necessary and Proper Clause,
“Congress is given authority ‘to make all laws which shall be necessary and proper
for carrying into execution the foregoing powers and all other powers vested by
this Constitution in the Government of the United States.’” Id. (quoting U.S.
Const. art. I, sec. 8, cl. 18).
15
Foster v. Love, 522 U.S. 67 (1997).
16
Id. at 72.
17
Id. at 69 (quoting U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 832-833
(1995)).
18
National Voter Registration Act of 1993, 42 U.S.C. 1973gg to 1973gg-10.
19
In addition, as discussed below, the courts noted that Congress’ authority to
regulate elections also extends to presidential elections.
20
Voting Rights Coalition v. Wilson, 60 F.3d at 1413.
21
Id. at 1414.
Page 23 GAO-01-470 Elections: Congressional Authority
22
The Tenth Amendment provides that, “The powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people.”
23
New York v. United States, 505 U.S. 144 (1992) (holding that a provision of the
Low-Level Radioactive Waste Policy Amendments Act of 1985 violated the Tenth
Amendment in that it commandeered the legislative processes of the States by
directly compelling them to enact and enforce a federal regulatory program).
24
ACORN v. Miller, 129 F.3d at 836-37; Voting Rights Coalition v. Wilson, 60 F.3d
at 1415; ACORN v. Edgar, 56 F.3d at 794.
25
ACORN v. Edgar, 56 F.3d. at 795.
26
ACORN v. Miller, 129 F.3d at 837. In addition, the states argued that the NVRA
violated state sovereignty under the Tenth Amendment, asserting that the NVRA’s
federal voter registration procedures would necessarily affect state procedures
which are within the states’ exclusive domain. The court in Miller rejected this
argument, stating that the NVRA does not require any change to state or local
election procedures, nor does it prohibit states from adopting separate
procedures for the election of state officials. ACORN v. Miller, 129 F.3d at 837.
The courts in Edgar and Wilson did not dismiss the states’ arguments outright, but
instead found that the states had not shown that NVRA’s impact on state or local
election procedures was so burdensome as to impinge on the legitimate retained
sovereignty of the states. Voting Rights Coalition v. Wilson, 60 F.3d at 1415-16;
ACORN v. Edgar, 56 F.3d at 794-95.
27
ACORN v. Edgar, 56 F.3d at 796.
28
Id.
29
The court in Wilson, in discussing implementation of the NVRA, noted that the
costs to the states could be significant. Voting Rights Coalition v. Wilson, 60 F.3d
at 1415-16. The court stated that the significance of the cost burden does not
“change the principle which is embodied” in the Elections Clause, but that it does
“dictate that the implementation of the Act be done sensitively.” Id. at 1415.
30
As noted earlier, while the Seventeenth Amendment changed the method of
choosing Senators from being chosen by State legislatures to being chosen by
popular vote, it did not, however, repeal the language excepting the “Places of
chusing Senators” from congressional authority.
Page 24 GAO-01-470 Elections: Congressional Authority
31
See, e.g., Foster v. Love, 522 U.S. at 69.
32
See generally ACORN v. Edgar, 56 F.3d at 793.
33
U.S. Const. art. II, sec. 1.
34
Id.
35
For example, Section 202 of the Voting Rights Act contains certain minimum
residency requirements for both registration and absentee voting in the context of
presidential elections. 42 U.S.C. 1973aa-1. These provisions were upheld by the
Supreme Court in Oregon v. Mitchell, 400 U.S. 112 (1970). Although it was an 8-1
ruling, the Justices applied various rationales. Justice Black cited to Congress’
authority under the Court’s decision in Burroughs v. United States, 290 U.S.
534(1934) and the Necessary and Proper Clause; Justices Brennan, White and
Marshall relied on the Enforcement Clause of the Fourteenth Amendment as a
legitimate basis to protect citizens’ rights to unhindered interstate travel and
settlement; Justice Douglas relied on the Enforcement Clause of the Fourteenth
Amendment as a legitimate basis to protect the right to vote for national offices as
a privilege and immunity of national citizenship; and Chief Justice Burger and
Justices Stewart and Blackmun relied on the Necessary and Proper Clause.
36
Burroughs v. United States, 290 U.S. 534 (1934).
37
Id. at 544.
38
Id. at 545.
39
Id. at 544. Article II, Section 1, Clause 2 of the Constitution 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.”
40
Burroughs v. United States, 290 U.S. at 544-45.
41
Voting Rights Coalition v. Wilson, 60 F.3d at 1414; ACORN v. Edgar, 56 F.3d at
793. The court in ACORN v. Miller, also citing Burroughs, wrote that “[w]hile
Article I section 4 mentions only the election of Senators and Representatives,
Congress has been granted authority to regulate presidential elections.” 129 F.3d
at 836 n.1.
Page 25 GAO-01-470 Elections: Congressional Authority
42
The Voting Rights Act of 1965, as amended, 42 U.S.C. 1971, 1973 to 1973bb-1.
43
Preclearance is a federal review process, discussed in more detail in the section
on federal statutes.
44
Bush v. Gore, 531 U.S. __, No. 00-949, slip op. (U.S. Dec. 12, 2000).
45
Id. at 6 (per curiam).
46
Id. at 10 (per curiam).
47
Article I, Section 8, Clause 1 of the Constitution provides, in part, 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….”
48
New York v. United States, 505 U.S. at 167; South Dakota v. Dole, 483 U.S. 203,
206 (1987).
49
South Dakota v. Dole, 483 U.S. at 210-12.
50
Id. at 206, 212. The state, citing to the Twenty-first Amendment’s prohibition of
direct regulation of drinking ages by Congress, argued that Congress could not
use the spending power to regulate that which it is prohibited from regulating
directly.
51
Id. at 207-208. The Court stated that the “independent constitutional bar”
limitation on the spending power “is not a prohibition of the indirect achievement
of objectives which Congress is not empowered to achieve directly,” but instead
“stands for the unexceptionable proposition that the power may not be used to
induce the States to engage in activities that would themselves be
unconstitutional.” Id. at 210. In addition, some commentators have noted that the
doctrine of unconstitutional conditions, which, with respect to individuals,
operates to prohibit the government from offering certain benefits conditioned
upon the recipient foregoing a constitutionally protected right, could possibly be
applied in the future to place additional limitations on the exercise of the
spending power in influencing states’ policy choices. See Angel D. Mitchell,
Conditional Funding to the States: The New Federalism Demands a Close
Examination for Unconstitutional Conditions
, 48 Kan. L. Rev. 161 (1999); see also,
Lynn Baker,
Conditional Federal Spending After Lopez
,
95 Colum. L. Rev. 1911
Page 26 GAO-01-470 Elections: Congressional Authority
(1995); Kathleen M. Sullivan,
Unconstitutional Conditions
, 102 Harv. L. Rev. 1415
(1989).
52
South Dakota v. Dole, 483 U.S. at 211 (quoting Steward Machine Co. v. Davis,
301 U.S. 548, 590 (1937)).
53
Id. at 209.
54
For example, in Oregon v. Mitchell, 400 U.S. 112 (1970), the Supreme Court
upheld an amendment to the Voting Rights Act that eliminated state residency
requirements for presidential elections. However, as discussed in endnote 35, the
justices cited various rationales for why the law was constitutional.
55
This description of federal statutes regarding election administration does not
include analysis of applicable criminal provisions or campaign finance laws. For a
description of the criminal statutes related to elections, including campaign
financing fraud violations, see “Federal Prosecution of Election Offenses,”
U.S. Department of Justice, Criminal Division, Public Integrity Section (6
th
ed. Jan.
1995). There are numerous criminal provisions which apply to election-related
conduct. For example, the National Voter Registration Act (NVRA) contains
criminal prohibitions on fraudulent registration and voting. 42 U.S.C. 1973gg-
10(2).
56
2 U.S.C. 7.
57
2 U.S.C. 1.
58
3 U.S.C. 1.
59
Article II, Section 1 of the Constitution provides that, “Congress may determine
the Time of chusing the Electors, and the Day on which they shall give their Votes;
which Day shall be the same throughout the United States.”
60
Foster v. Love, 522 U.S. at 70.
61
Id. at 69. The Court found that the state statute, in essence, allowed for the final
selection of United States Representatives and United States Senators prior to
federal election day whereby “[a]fter a declaration that a candidate received a
majority in the open primary, state law requires no further act by anyone to seal
the election; the election has already occurred.” Id. at 73.
62
Id. at 73 (citing Ex Parte Yarbrough, 110 U.S. at 661).
Page 27 GAO-01-470 Elections: Congressional Authority
63
Id.
64
National Voter Registration Act of 1993, 42 U.S.C. 1973gg to 1973gg-10.
65
Id. 1973gg(b). In the House Report accompanying the final bill, the House
Administration Committee wrote that the Voting Rights Act of 1965 “eliminated
the more obvious impediments to registration, but left a complicated maze of
local laws and procedures” that continued to deter eligible citizens from
registering, particularly racial minorities and the disabled. H.R. Rep. No. 103-9, at
3 (1993), reprinted in
1993 U.S.C.C.A.N. 105, 106-107. The Committee wrote that
NVRA was to continue the election reforms begun by the Voting Rights Act by
giving eligible citizens who wished to register ready access to registration
applications. Id. at 3, 5, reprinted
in 1993 U.S.C.C.A.N. 105, 107, 109. In addition,
the Senate Report addressed the constitutional authority to regulate federal voter
registration, citing the Elections Clause, the Necessary and Proper Clause, and the
Fourteenth Amendment as the basis for Congress’ power to enact federal election
laws. S. Rep. No. 103-6 (1993), at 3-4.
66
42 U.S.C. 1973gg-2.
67
Id. 1973gg-3(a).
68
Id. 1973gg-5(a)(2), (a)(3), (a)(4), (a)(6)(A)(i).
69
Id. 1973gg-4(a)(1); 1973gg-7(a)(2).
70
Id. 1973gg-8.
71
Id. 1973gg-6(b).
72
See Burroughs v. United States, 290 U.S. 534 (1934).
73
42 U.S.C. 1973aa-1(d). These limitations on state residency requirements in
presidential elections were upheld by the Supreme Court in Oregon v. Mitchell,
400 U.S. 112 (1970).
74
42 U.S.C. 1973aa-1(e).
Page 28 GAO-01-470 Elections: Congressional Authority
75
The Uniformed and Overseas Citizens Absentee Voting Act of 1986, 42 U.S.C.
1973ff to 1973ff-6. Several federal laws have been enacted since the 1940’s
designed to protect the federal voting rights of the military. In addition, the courts
have, on occasion, reviewed state restrictions on voting by members of the armed
services. For example, in 1965, the Supreme Court struck down as
unconstitutional a provision of the Texas Constitution that prohibited any
member of the Armed Forces who moved his home to Texas during the course of
military duty from ever voting in any election in Texas as long as he was a
member of the Armed Forces. Carrington v. Rash, 380 U.S. 89 (1965). The Court
found that the provision violated the Equal Protection Clause of the Fourteenth
Amendment.
76
Id. 1973ff-1.
77
Id. 1973ff(a); 1973ff-4.
78
Id. 1973ff(b)(5), (6). The report is due not later than the end of each year after a
Presidential election year.
79
Id. 1973ff-2(a).
80
Id. 1973ff-1(3).
81
Id. 1973ff-2(b).
82
Id. 1973ff-2(c).
83
42 U.S.C. 1973aa-1.
84
Id. 1973aa-1(d).
85
The Voting Accessibility for the Elderly and Handicapped Act of 1984 (VAEHA),
42 U.S.C. 1973ee to 1973ee-6. VAEHA defines a “federal election” subject to the
Act as including a general, special, primary, or runoff election for the office of
President or Vice President, or of Senator or Representative in, or Delegate or
Resident Commissioner to, the Congress. Id. 1973ee-6(3).
86
Id. 1973ee-1(b)(2)(B)(ii).
87
Id. 1973ee-2, 1973ee-3.
88
The Voting Rights Act of 1965, 42 U.S.C. 1973 to 1973bb-1.
Page 29 GAO-01-470 Elections: Congressional Authority
89
The Fifteenth Amendment provides, in part, “The right of citizens of the United
States to vote shall not be denied or abridged by the United States or by any State
on account of race, color, or previous condition of servitude.”
90
42 U.S.C. 1973, 1973b(f)(2).
91
Id. 1973.
92
Id. 1973aa.
93
Id. 1973b(c).
94
Id. 1973b(b).
95
Id. 1973b(f)(3).
96
Id. 1973b(b).
97
Id. 1973c.
98
Id. 1973e.
99
Id. 1973g(a).
100
Id. 1973f.
101
Id. 1973a(a).
102
Id. 1973d.
103
Id. 1973f.
104
Id. 1973b(a)(1).
Page 30 GAO-01-470 Elections: Congressional Authority
105
The jurisdiction, in general, must establish that during the previous ten years it
has: (1) not used a discriminatory test or device to establish voter qualifications;
(2) not been judged in a court case to have denied or abridged voting rights, nor
agreed through a consent decree to discontinue any discriminatory voting
practices; (3) obtained federal preclearance for all election law changes; (4) not
received any federal objections to an election law change submitted for
preclearance; (5) not been assigned a federal examiner; (6) promoted political
participation by racial or language minorities; and (7) presented evidence of
minority registration, voting, and other political participation. Id. 1973b(a).
106
Id. 1973b(8).
107
Id. 1973aa-1a(b)(1).
108
Id. 1973aa-1a(b)(2).
109
Id. 1973aa-1a(d).
110
Id. 1973b(e).
111
South Carolina v. Katenbach, 383 U.S. 301 (1966). Congress later amended the
Voting Rights Act to ban literacy tests nationwide. The Supreme Court upheld
this nationwide suspension in Oregon v. Mitchell, 400 U.S. 112 (1970).
112
South Carolina v. Katzenbach, 383 U.S. at 324-327. The Court also upheld
Congress’ authority to require federal preclearance of any election law changes
and its authority to appoint federal election examiners to covered jurisdictions.
As with the suspension of literacy tests, the Court found that Congress could
adopt remedies that anticipated possible voting discrimination in these
jurisdictions, without the need for case-by-case adjudication. Id. at 334-337.
113
Katzenbach v. Morgan, 384 U.S. 641 (1966).
114
Id. at 650-51.
115
Id. at 652.
116
Id. at 654-656.
117
Oregon v. Mitchell, 400 U.S. 112 (1970).
Page 31 GAO-01-470 Elections: Congressional Authority
118
In contrast, a differently composed majority of Justices (in a 5-4 split) upheld
the Act’s minimum voting age provision as applied to federal elections. However,
there was no majority regarding the constitutional justification for this result.
119
Oregon v. Mitchell, 400 U.S. at 125-126, 130 (Black, J., announcing the judgment
of the Court), 212-213 (Harlan, J., concurring in part, dissenting in part), and 294-
296 (Stewart, J., Burger, C.J., Blackmun, J., concurring in part and dissenting in
part). Following Mitchell, Congress proposed, and the states ratified, the
Twenty-sixth Amendment to the Constitution, which guarantees that neither the
United States nor any state may deny or abridge the right to vote of any citizen
older than eighteen years on account of age.
120
City of Rome v. United States, 446 U.S. 156 (1980).
121
Id. at 177.
122
Id. at 179.
123
Lopez v. Monterey County, 525 U.S. 266 (1999).
124
Id. at 282.
125
Id. at 282-284.
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