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To Regulate in the Last Resort

Does Congress, under the Time, Place and Manner Clause of the Constitution, possess authority to “alter” or otherwise override state laws governing the conduct of congressional elections?

That is the central constitutional question at the heart of the heated political debate surrounding H.R. 1--the “For the People Act”—which will determine whether Congress can protect Americans’ voting rights that have been, or will be, restricted by the passage of some 60 state laws across our nation.

What were the framers of the Constitution thinking when they wrote the Time, Place and Manner Clause? Article 1, Section 4, Clause 1 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, except as to the Places of chusing Senators.”

Alexander Hamilton, author of Federalist No. 59, explained the views, values and conclusions of his fellow delegates to the Constitutional Convention, when he stated that Congress has the constitutional authority “to regulate in the last resort the election of its own members.” He observed that in the entire Constitution, there is nothing “more completely defensible” than this allocation of power, since “every government ought to contain in itself the means of its own preservation.”

The theme of “self preservation” was invoked again and again by the framers of the Constitution, and by those who approved it in the various state ratifying conventions. The concept of an “exclusive” state authority to regulate congressional elections, Hamilton explained, “would leave the existence of the Union entirely at their mercy.” State legislatures, he observed, could “annihilate” it by neglecting to provide for elections.

James Madison, Father of the Constitution, shared Hamilton’s deepest concerns. He told the Constitutional Convention that he feared “uncontrolled” state authority to regulate elections. He warned that it was “impossible to foresee all the abuses that might be made of the discretionary power.” State legislatures might make arbitrary, manipulative decisions based on purely partisan interests.

James Wilson, second in importance to Madison as an architect of the Constitution, was in full agreement and echoed Hamilton’s fear that “some states might make no regulations” on elections, threatening the very existence of Congress and the dissolution of the Union.

Chief Justice Thomas McKean of Pennsylvania, stirred additional fears when he addressed colleagues in the Pennsylvania State Ratifying Convention. Congress, he stated, cannot be deprived of its authority to regulate elections since that would deny its authority to be “the judges of the elections, returns and qualifications of its own members.” Uncontrolled state authority, moreover, might be exercised to annul an “annual Congress,” and destroy congressional power to “determine that elections shall be at convenient and suitable times” and to “prevent corruption or undue influence.”

For a Convention that was animated by the need to strengthen the authority of the federal government in the face of the abysmal performance of The Articles of Confederation, which exalted state over national authority, the preservation of Congress and its ultimate authority to regulate “in the last resort” its own elections, plumbed the depths of the republican enterprise on which it had embarked.

One measure of the founding generation’s understanding of the ultimate constitutional authority wielded by Congress in the regulation of elections, may be seen in the acknowledgment of it by opponents of the arrangement.

Elbridge Gerry, a framer from Massachusetts, writing on October 10, 1787, under the title of “Federal Farmer,” the most prominent series of anti-Federalist papers, explained the import of the Time, Place and Manner Clause in a lawyerly and moderate tone. Congress, he said, has the power to “regulate elections. Were it omitted, the regulations of elections would be solely in the respective states.”

Gerry’s concession was reiterated in various anti-Federalist tracts. Abraham Holmes, also a member of the Massachusetts State Ratifying Convention, was at pains to admit that, by virtue of the Clause, the power of choosing the time and manner of “representatives is wholly at the disposal of Congress.” Luther Martin, a framer from Maryland who campaigned against ratification of the Constitution, agreed: the authority over elections is “entirely left at the mercy” of Congress.

Nearly 20 state legislatures, dominated by Republicans, have passed, or are considering passage, of roughly 60 bills that will make it much more difficult for minorities to vote. The rationale—“securing the vote”—reflects their view, demonstrably false, as we have seen, that the 2020 election was rife with significant fraud, which, in their estimation, requires reform measures to protect the “integrity” of American elections. Democrats, however, believe these measures represent an exercise in voter suppression.

The constitutional issue is one of great moment for our nation. Voting rights—the hallmark of American Democracy—must be preserved lest our system melt into a form of government unrecognizable in our history and law.

Readers may quarrel over the issue of whether the “For the People Act” is politically wise or desirable from a policy standpoint or whether it satisfies the needs of our democracy. But there is no question that Congress, as Hamilton, Madison and the rest of the founders determined, possesses the ultimate constitutional authority to regulate the time and manner of congressional elections.

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