The Constitution and Election Law

Previous posts have discussed authoritarian moves by the executive branch.

U.S. District Judge Indira Talwani, found the new Postal Service rule on mail-in ballots is likely unlawful and unconstitutional,

The Elections Clause of the Constitution 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, except as to the Places of ch[oo]sing Senators. U.S. CONST. art. I, § 4, cl. 1. 

“[T]hese comprehensive words 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, [and] counting of votes[.]” Smiley v. Holm, 285 U.S. 355, 366 (1932). “In practice, the Clause functions as ‘a default provision; it invests the States with responsibility for the mechanics of congressional elections, but only so far as Congress declines to pre-empt state legislative choices.’” Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1, 9 (2013) (quoting Foster v. Love, 522 U.S. 67, 69 (1997)). “Because the power the Elections Clause confers is none other than the power to pre-empt, the reasonable assumption is that the statutory text accurately communicates the scope of Congress’s preemptive intent. . . . Unlike the States’ historic police powers, the States’ role in regulating congressional elections . . . has always existed subject to the express qualification that it terminates according to federal law.” Id. at 1415 (citation modified).  

 Accordingly, as to the time, place, and manner of federal elections, the Elections Clause “grants Congress ‘the power to override state regulations’ by establishing uniform rules for federal elections, binding on the States.” Foster, 522 U.S. at 69 (quoting U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 832–33 (1995)).13  

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The Constitution does not grant the President any specific powers over elections.14 Broadly, the Constitution vests the President with “executive Power” and commands him to “take Care that the Laws be faithfully executed[.]” U.S. CONST. art. II, §§ 1, 3. The President “plays no direct role in the process” of appointing electors, “nor does he have authority to control the state officials who do.” Trump v. United States, 603 U.S. 593, 627 (2024). As the Supreme Court has observed, “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” Medellín v. Texas, 552 U.S. 491, 526–27 (2008) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952)).