Symposium

Article excerpt

Q: Should Congress assert more control over local voting standards in elections?

YES: Our founding Fathers gave Congress the power to ensure that federal elections are conducted fairly.

Why do we need federal standards for federal elections? Consider this: When the Florida presidential election results were certified, they were neither complete nor verified as accurate. This much is certain because the date for certifying the election was before the date for all absentee ballots to be counted. In other words, the election was certified even though the votes of thousands of voters, including those who serve in our nation's military, had not been counted.

The results of the 2000 presidential election, more generally, illustrate the need for federal standards for the conduct of federal elections. The actions of a few state and local officials in a very small number of election jurisdictions can affect the outcome of an election that will affect all Americans.

Before asking if the federal government should regulate federal elections, it first is necessary to consider if they can regulate them. The answer is a complete and unambiguous "yes." Although elections historically have been viewed as a state activity, the federal government can, for the most part, play as large or small a role as it desires. As Article I, Section 4, of the Constitution states, "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."

What does it mean to be able to regulate the "times, places and manner" of elections? The U.S. Supreme Court noted last year that the ability to regulate the manner of elections "encompasses matters like `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.'" Thus, the federal role can be as broad as the election process itself, from determining if voters are eligible to vote at the beginning of the process to the certification of election results at the end.

And the federal role in elections does not end with the selection of senators, representatives or the president. As long as the purpose of even a part of the election is to select a federal official, Congress has the right to ensure that elections are conducted fairly and the right to ensure that the integrity of an election is not compromised. The elections clause to the Constitution is another example of the prescience of the Founding Fathers. They designed a system of election to be administered by the states and localities, allowing them to tailor procedures to meet their local needs. At the same time, however, they also provided Congress with the powers to ensure that federal elections would not be at the mercy of the idiosyncrasies of local election officials.

We already have many federal standards on the books because, historically, a small but significant number of state and local governments have not placed importance on ensuring that every American had access to the polls. In fact, until the 1960s several states had laws that explicitly were designed to disenfranchise large segments of the population. Congress passed the Voting Rights Act in 1965 to ensure that minorities are not subject to discrimination. In 1984, Congress passed the Voting Accessibility for the Elderly and Handicapped Act to establish standards for ensuring that the disabled have access to the polls. A decade later, Congress enacted the National Voter Registration Act (NVRA), which creates standards for voter registration and provisional voting. The 2000 presidential election pointed out both weaknesses in the existing federal-election standards and the need for standards in four new areas: provisional balloting, voter registration, voting technology and enforcement of civil rights. …