Article 1 §4.1 on Elections and Districts

Democracy is hard, but it helps if you know what you’re doing. I want to be better at democracy so I’m studying the Constitution, and blogging what I learn.

The Constitution contains seven articles. I am reading Article One, which deals with the legislative branch of government and has 10 sections. Section One establishes a bicameral Congress and Section Two deals with the House of Representatives. Section Three deals with the Senate. Last week I read Clause 7, which placed limitations on impeachment. Today I am beginning Section Four.

Here is Clause 1:

Article 1 §4.1

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.

This seems straightforward, as most clauses of the Constitution do when read the first time. But sometimes things get complicated quickly. How does Article 1 §4.1 fare?

Well, we’re still dealing with the delegation of legislative power. In this case it’s the election of federal-level representatives. The clause gives states the power to determine their own election procedures, but allows the Congress (so… either chamber? Each chamber respective to its own election rules? Both working together?) to overrule those decisions, except for the designation of polling places, which states have an absolute right to.

We’ve already dealt with clauses overruled by Constitutional amendment. Article 1 §3.1 gave state legislatures the right to select federal Senators, and Article 1 §3.2 gave state executives the right to fill vacancies until the legislature got around to doing it. Amendment XVII established the popular vote for Senators, and allowed states to determine their own procedures for filling vacancies.

Historical Effects

Starting on page 126, the Annotated Constitution gives a bit of history on how this has played out so far. Turns out, applying Article I, § 4 is not straightforward. States did their own thing, unhindered by Congress, until 1842, when Congress passed a law requiring states to establish election districts. Over the years, Congress built on the requirements for districts with additional laws that attempted to ensure the districts were drawn fairly – requiring contiguity, compactness, and substantial equality of population.

There was some back-and-forth with these rules over the next century. In 1843, the majority of a divided Congressional committee determined Article I, § 4 gave Congress the power to create the districts itself, but did not authorize Congress to tell the state legislatures how to create districts if they were left the task of drawing the lines. In 1880 Ex parte Siebold, 100 U.S. 371, 383–86 called bullshit on this decision, but Congress eliminated the districting standards in 1929 anyway. Further complicating the matter, districting issues intertwined with the issue of filling Senatorial vacancies, which seems to have been of more pressing concern to Congress, maybe because it’s hard to work when the office is half empty.

From the Annotated Constitution:

The first comprehensive federal statute dealing with elections was adopted in 1870 as a means of enforcing the Fifteenth Amendment’s guarantee against racial discrimination in granting suffrage rights. Under the Enforcement Act of 1870, and subsequent laws, false registration, bribery, voting without legal right, making false returns of votes cast, interference in any manner with officers of election, and the neglect by any such officer of any duty required of him by state or federal law were made federal offenses. Provision as made for the appointment by federal judges of persons to attend at places of registration and at elections with authority to challenge any person proposing to register or vote unlawfully, to witness the counting of votes, and to identify by their signatures the registration of voters and election talley sheets. When the Democratic Party regained control of Congress, these pieces of Reconstruction legislation dealing specifically with elections were repealed, but other statutes prohibiting interference with civil rights generally were retained and these were used in later years. More recently, Congress has enacted, in 1957, 1960, 1964, 1965, 1968, 1970, 1975, 1980, and 1982, legislation to protect the right to vote in all elections, federal, state, and local, through the assignment of federal registrars and poll watchers, suspension of literacy and other tests, and the broad proscription of intimidation and reprisal, whether with or without state action.

Sorry for that solid block of quoted text, but I’m dealing with a cold this week and my brain is too foggy to write up my own historical summary. But if you’re the type to skip big text blocks, here’s the TL;DR –

Within fifty of years of the nation’s founding, a divide in attitudes about representation became evident. On one side, there was the effort to maintain some kind of… well, I guess the word would be purity, in the election rolls. On the other side was the effort to preserve the civil rights of individuals to elect their own representatives. The battlefield was districting. Or maybe districting was just one front in the war, but work with me here.

Relevance Today

This battle continues today, under the banners of “voter fraud” and “voter suppression.” Since this post is getting long and I feel crappy, I’ll link to my own paid work on the subject. Spoiler: large scale voter fraud is a myth; voter suppression is real, and one party is really into it. In all the hullabaloo over one lady’s emails and one man’s horrible … (I can’t pick one thing)… horribleness, I personally think the gerrymandering story is the elephant in the living room.

If you’re one of the millions of Americans with a sinking feeling in your gut and no idea what to do about it, electoral reform is an underlying issue to almost every shocking headline replacing the one that horrified us yesterday. Check out Independent Lines Advocacy and see what you think.