As we have seen over the past few months, there has been a lot of debate as to who is eligible to vote and where the power belongs. However, in federal elections, it is up to the states to make these rules. While most people are familiar with the first three sections of Article 1 of our Constitution, the parts we all hopefully learned about in civics class, what is hardly ever discussed and rarely covered in high school are the next seven sections. These are some of the most important sections to understanding the role of Congress as well as what the Legislative Branch can and cannot do.
Take Clause I of Section 4, the Election Clause. This clause 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.”
States oversee every aspect of elections and make their own voting laws, even when voting for federal offices. A good example of this was in 1869 when Wyoming passed a law allowing women to vote in all elections. Even though Wyoming was the only state to allow women to vote, only about 600 of state’s women were eligible. It was reported that 289 Wyoming women voted in the 1870 midterm election, possibly swaying the vote in favor of the Republican Party. By the 1890 midterm election—the first election after Wyoming statehood—about 7,000 Wyoming women were eligible to vote, according to U.S. Census records.
In 1932, the U.S. Supreme Court ruled that the Election Clause also gave states power over, “registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns.” Later, in 1941, the Court extended this law to cover primary elections as well. This is evidence that our Founders feared too much power in the federal government and wanted to make sure the states still retained their influence in who and how states could choose their representatives, but it does not mean the states have complete power. States are not allowed to go against the Constitution and add extra qualifications to run for office or make different rules on who can vote for different offices.
Our Founders feared states could use this power to cripple the federal government and so they added the controversial line, “but the Congress may at any time by Law make or alter such Regulations.” Alexander Hamilton justified this line in Federalists No. 59, arguing that states could not hold the federal government hostage by refusing to call elections or by calling them at times or places that would prove difficult for most voters. Hamilton claimed Congress would only use this power under “extraordinary circumstances,” but that it was necessary for protection.
A good example of Congress exercising its altering power was the Voting Rights Act of 1965. This law banned unfair voting rules and allowed the federal government to oversee elections in places that had a history of discrimination. In the past, some Southern states used things like literacy tests and poll taxes to exclude Black, poor and illiterate voters from the polls. Under this clause, the federal government stepped in and made changes.
Another example came in 2013 in Arizona. The National Voter Registration Act of 1993 required all states to use the same registration form to vote, but Arizona created their own that asked about citizenship. The Court ruled that the Arizona form trumps federal law and deemed it illegal.
The second clause of Section 4, the Assembly Clause, states, “The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.” These dates are odd. If members of Congress are elected in November and do not take office until January, then the first time the new Congress will meet is over a year in the following December. This is understandable when you factor in travel time as well as new state legislatures had to have time for new senators (remember senators were elected by state legislatures not by popular votes). The reason for the clause was to guarantee that Congress met at least once a year. While the date in the winter seemed difficult, it would not interfere with the representatives’ farming schedule which was important as the majority still worked the land in one way or another with some relying on farming as their principal income.
In 1933 the 20th Amendment was ratified and changed the timing. By that point the 17th Amendment had made it so that senators were elected by a popular vote, and so traveling was much simpler. Section 2 of the 20th Amendment reads, “The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.” Now instead of waiting a full year to meet for the first time, Congress only has two months.
While this section seems unimportant compared to previous ones, it continues to show the balance our Founders made between national and state power and guaranteed that Congress had to show up and do its job.
James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He can be reached at HistoricallySpeaking1776@gmail.com.
