Academic journal article Northwestern University Law Review


Academic journal article Northwestern University Law Review


Article excerpt

ABSTRACT-Many states have delegated substantial authority to regulate federal elections to entities other than their institutional legislatures, such as independent redistricting commissions empowered to determine the boundaries of congressional districts. Article I's Elections Clause and Article II's Presidential Electors Clause, however, confer authority to regulate federal elections specifically upon State "legislatures," rather than granting it to States as a whole. An intratextual analysis of the Constitution reveals that the term "legislature" is best understood as referring solely to the entity within each state comprised of representatives that has the general authority to pass laws. Thus, state constitutional provisions or laws creating independent redistricting commissions that purport to limit a state legislature's power to draw congressional districts or otherwise regulate federal elections violate the Elections Clause.


The Elections Clause of the U.S. Constitution is the Swiss army knife of federal election law. Ensconced in Article I, it provides, "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."1 Its Article II analogue, the Presidential Electors Clause, similarly specifies that "[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors" to select the President.2 The concise language of these clauses performs a surprisingly wide range of functions implicating numerous doctrines and fields beyond voting rights, including statutory interpretation,3 state separation of powers and other areas of state constitutional law,4 federal court deference to state court rulings,5 administrative discretion,6 and preemption.7

States lack inherent power to regulate federal elections. Thus, when a state does so, it is acting "by virtue of a direct grant of authority" under the Elections Clause or Presidential Electors Clause.8 These constitutional provisions are "express delegations of power"9 that confer upon state legislatures the authority to "provide a complete code" for federal elections, including but not limited to laws concerning "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."10

At first blush, the meaning of the term "legislature" in the Elections Clause and Presidential Electors Clause appears quite clear: it refers to the entity within each state comprised of elected representatives that enacts statutes. The Supreme Court, however, has taken a somewhat different view. In Ohio ex rel. Davis v. Hildebrant, the Court held that the Elections Clause allows a state's citizens to use the referendum process established by the state constitution to nullify a law enacted by the legislature concerning federal redistricting.11 It tersely rejected the argument that the state legislature had exclusive power under the Elections Clause to enact or repeal laws governing congressional elections, dismissing it as "plainly without substance."12 Hildebrant permits a state to enact laws concerning congressional elections through any process that the state constitution includes within the state's "legislative power," even if the state legislature itself is not involved.13

The Supreme Court explored the issue in greater depth in Smiley v. Holm, in which it permitted a state governor to veto a federal redistricting bill passed by the state legislature because the state constitution included vetoes as part of the legislative process.14 It explained that a legislature's exercise of its power under the Elections Clause to enact laws governing congressional elections "must be in accordance with the method which the State has prescribed for legislative enactments. …

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