The 2000 Presidential Election controversy highlighted the problems inherent in the decentralised federal election system. This system relies on a complex interaction between voters and local election officials that operate in over 10,000 electoral
jurisdictions dispersed across the United States.5 The origins of this complex system can be traced to the United States Constitution. According to the Constitution, the conduct of federal elections is a federal function with the states acting as the administrators of those elections.6 The Federal Government does not ‘run’ federal elections. This responsibility has been left to the states, and with few exceptions, the Federal Government has always backed away from expanding its role in shaping federal electoral law, although it has the authority to intervene through the elections clause.
As demonstrated in the 2000 Election Supreme Court cases discussed in chapter two, section 2.2, the elections clause reflects the principle that when states administer federal elections, they do so in large part as agents of the entire nation. Alexander Hamilton noted in Federalist No. 59 that the states could not be given overarching power to
4 The Uniformed and Overseas Citizens Absentee Voting Act of 1986. UOCAVA, Pub. L. 99-410.
5 United States Government Accountability Office. 2007. Elections: Action Plans Needed to Fully Address Challenges in Electronic Absentee Voting Initiatives for Military and Overseas Citizens. GAO 07-774. Washington, D.C.: United States Government Accountability Office, p. 7.
6 The Constitution of the United States, Article 1, Section 4, Clause 1, ‘The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed by 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.’
62
determine all facets of federal elections. To do so would ‘leave the existence of the union entirely at their mercy’.7 Conversely, Hamilton argued that to leave the Federal Government with exclusive power to regulate state elections would have been a
‘premeditated engine for the destruction of the state government’.8 Given this dilemma, the framers of the Constitution offered a remedy in the form of what is known as the elections clause. This clause provides for a sharing of powers that, as Hamilton put, guarantees a mutual dependence ‘that each, as far as possible ought to depend on itself for its own preservation’.9
This mutual power sharing described in the elections clause was problematic in the ratification process of the Constitution as states saw themselves as sovereign entities based on the Articles of Confederation.10 The grant of congressional authority to ‘alter at any time’ suggested overarching power that could be used to force the states to change their election regulations to suit Congress. This would negate state sovereignty and subject the states to potential tyranny.11 Because this debate was so politically charged, Hamilton devoted substantial time articulating the founders’ point of view in order to persuade voters to ratify the proposed constitution.12 Ultimately the rhetoric of Hamilton and his colleagues was sufficiently persuasive in expressing the broader intent of the Constitution: that the sum of the reserved state powers would be greater than the total of the expressed national powers. This sentiment was ultimately enshrined in the Tenth Amendment.13
Zimmerman correctly notes the importance of the Tenth Amendment as incorporating the idea of dual state and federal sovereignty into the Constitution, thereby eliminating a
7 Hamilton, Alexander. Federalist No. 59. ‘Concerning the Power of Congress to Regulate the Election of Members.’ New York Packet, February 22, 1788.
8 Hamilton, ‘Concerning the Power of Congress to Regulate the Election of Members.’
9 Hamilton, ‘Concerning the Power of Congress to Regulate the Election of Members.’
10 ‘Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled’. The Articles of Confederation and Perpetual Union. 1781. Article II.
11In relation to HAVA, this sentiment of rejecting the imposition of federal requirements upon the states has been upheld as recently as 2004. See Sandusky County Democratic Party v. Blackwell, 387 F. 3db 565 (6th Cir 2004) (per Curiam): Sixth Circuit Employs Clear Statement Rule in Holding that the Help Americans Vote Act Does Not require States to Count Provisional Ballots Cast Outside Voters’ Home Precincts. Harvard Law Review, 118(1), pp. 2461-2468.
12 See in particular Federalist Nos. 59, 60 and 61.
13 The Constitution of the United States, Amendment 10, ‘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’.
63
hierarchy of institutions.14 However, in practice this relationship has been challenged by the practice of pre-emptive federal statutes. The Help America Vote Act of 2002
(HAVA) discussed in chapter two, section 2.4 is an example of this practice. In HAVA, the Federal Government prescribed a set of minimum standards for the conduct of elections, yet the states were free to develop their own standards provided they met the federal minimum.15 States have been resistant to this type of federal legislation and as a result state sovereignty and states rights sentiment continues to dominate contemporary political debates. Chapter two, section 2.5, discussed extensively the actions by states to introduce their own legislation to correct the perceived problems stemming from the 2000 Presidential Election. States did this in large part to obstruct any federal
interference in election administration.16 Further, 41 state legislatures have introduced over 190 bills in other policy areas to reassert their states rights since 2008.17 This type of activity has led Russell Hanson to correctly observe that states to a large degree still behave like sovereigns under the Constitution today.18
Even considering the persistence of states rights sentiment, the power of Congress to intervene in the states regarding federal election matters has been consistently upheld by the Supreme Court. In Ex Parte Siebold, the court found that Congress ‘may either make the regulations, or it may alter them’.19 In Smiley v. Holm, the Court further upheld this view by indicating ‘it cannot be doubted that these comprehensive words embrace authority to provide a complete code for congressional elections’.20 And in Foster v. Love, the Court unanimously maintained the authority of the elections clause of the Constitution, noting that ‘thus it is well settled that the Elections Clause grants Congress ‘the power to override state regulations’ by establishing uniform rules for federal elections, binding on the states’.21 Most recently, the Court upheld the congressional ability to override state election regulations as they apply to federal elections, noting that ‘the States may regulate the incidents of such elections, including
14 Zimmerman, Joseph. 1992. Contemporary American Federalism, The Growth of National Power.
Leicester University Press: Leicester, p. 57.
15 Zimmerman, Contemporary American Federalism, The Growth of National Power, p. 59, see also Help America Vote Act of 2002, Pub. L. No. 107-252, 116 Stat 1666 (2002).
16 Palazzolo, Daniel J. 2005. ‘Election Reform after the 2000 Election’ in Palazzolo Daniel J. and Ceaser, James W. (eds.), Election Reform Politics and Policy. Lanham: Lexington Books, p. 4.
17 Help Rescue America. 2011. States Rights Bill List. (http://states-rights.org/, 12 May 2011).
18 Hanson, Russell L. 2008. ‘Intergovernmental Relations’ in Gray, Virginia and Hanson, Russell L.
(eds.), Politics in the American States, A Comparative Analysis, Ninth Edition. CQ Press: Washington D.C., p.33.
19 Ex Parte Siebold, 100 U.S. 371 (1879).
20 Smiley v. Holm, 285 U.S. 355 (1932).
21 Foster, Governor of Louisiana, et al. v. Love et al., 90F 3d 1026 (1997).
64
balloting, only within the exclusive delegation of their Elections Clause power.’22 Despite all the cases confirming the appropriateness of congressional authority over the states pursuant to the elections clause, Congress has yet to exercise its plenary power to completely dictate how federal elections take place.23 This congressional reservation has come much to the chagrin of key stakeholders in the overseas absent voting debate.