Election Regulations

Addressing the meaning of “legislature thereof” and noting that “[t]he text, context, drafting history, contemporaneous interpretations, and history of subsequent judicial interpretation of the numerous other constitutional provisions referring to legislatures collectively confirm that the term refers exclusively to the elected body of representatives within each state that exercises general lawmaking authority.”

Looking to Framers’ intent for the proposition that “although the states’ power over elections is extensive, Congress’s ability to ‘make or alter such regulations’ is essentially a veto authority over state electoral mechanisms to prevent abuse.”

Concluding that “the intended scope of the power was wide enough to authorize most modern congressional election statutes, but not wide enough to support modern federal campaign finance laws.”

Noting Antifederalist concerns about abuse of the Elections Clause and that Madison foresaw the Clause’s use as regulating district size according to “one person, one vote.”

Quoting Madison as stating that “a matter so vital to the federal government’s survival could not be left within the exclusive control of the states, and specific electoral regulations could not be ‘fixed in the Constitution’ because they would need to be ‘adjust(ed) . . . to the changes of circumstances.’”

Engaging in intratextual analysis comparing the elections clause (“times, places, and manner”) to the electoral college clause (only the “time” of choosing electoral college members).

Analyzing original public meaning of “regulate,” “make,” and “alter.”

Discussing the meaning of the phrase “prescribed in each state by the legislature thereof.”

Concluding that the Framers’ understood the Elections Clause to be fairly broad.

Arguing that “although the Elections Clause makes no reference to districts, James Madison and other Framers assumed that states would adopt a districting system.”

Discussing the meaning and purpose of the word “regulate” and arguing that “even the ardent nationalist Hamilton was willing to cede to the federal government power to regulate elections only as a ‘means of its own preservation.’”

Discussing founding era evidence of meaning of “time,” “place,” and “manner.”

Discussing meaning of “places.”