THE SWEEP OF THE ELECTORAL POWER.

• Author: Stephanopoulos, Nicholas O.

Congress is on the cusp of transforming American elections. The House recently passed a bill that would thwart voter suppression, end gerrymandering, and curb the undue influence of the rich. Something like this bill could soon become law. In this Article, I provide a multilayered foundation for such sweeping electoral legislation. From a theoretical perspective, first, I argue that Congress poses less of a threat to democratic values than do the states or the courts. It's more difficult for a self-interested faction to seize control of federal lawmaking than to capture a state government or a judicial body. Second, surveying the history of congressional electoral regulation, I contend that it's remarkably benign. Most federal interventions have advanced democratic values--in marked contrast to many of the states' and the courts' efforts.

Third, I show that current law grants Congress the expansive electoral authority that, normatively, it ought to possess. In particular, the Elections Clause, the Guarantee Clause, and the Fourteenth Amendment's Enforcement Clause combine to empower Congress over most electoral levels and topics. And fourth, returning to the House's recently passed bill, I maintain that its most controversial elements are constitutional under the applicable doctrine. In fact, Congress could venture considerably further than, to date, it has tried to go. Together, these points should hearten legislators when they next turn to the project of electoral reform. Not only is aggressive federal action permissible in the American political system--it may be the only way to save it.

INTRODUCTION

Although it came and went without much fanfare, March 8, 2019 was a momentous day in the history of American election law. On that day, the House of Representatives passed the For the People Act, the most sweeping electoral reform bill ever to win the support of a majority of a chamber of Congress. (1) Among (many) other things, the Act would have mandated automatic voter registration, (2) ended felon disenfranchisement, (3) required states to redraw district lines using independent commissions, (4) established a system of public financing for congressional candidates, (5) and restructured the agency responsible for regulating money in politics. (6) This set of proposals was more ambitious than Congress's most recent election laws--the National Voter Registration Act of 1993 (7) and the Help America Vote Act of 2002 (8)--which were limited to relatively minor aspects of registering to vote and casting ballots. The For the People Act was also more far-reaching than the post-Watergate reforms of campaign finance, (9) which didn't offer public funds to congressional (as opposed to presidential) candidates. The For the People Act even swept further than the Voting Rights Act of 1965 (10) and its Reconstruction antecedents a century earlier. (11) Those monumental laws targeted only one evil (racial discrimination in voting) primarily in only one part of the country (the deep South).

The lack of hubbub over the For the People Act--despite its extraordinary content--had a simple explanation. It was just a bill. It wasn't an enacted law. After being passed by the House, it wasn't even debated, let alone ratified, by the Senate. Senate Majority Leader Mitch McConnell declared, "I get to decide what we vote on," and the For the People Act wasn't on his agenda. (12) McConnell's opposition to the bill had a simple legal explanation, too. (13) He thought it exceeded Congress's constitutional authority. In remarks on the Senate floor, he stated, "the Constitution clearly gives State legislatures primary responsibility" for running elections. (14) However, "[d]ecision after decision that our Constitution properly leaves to the States just melts away in this proposal." (15) So it amounts to a "Federal takeover of elections across the nation" that "upsets th[e] constitutional balance." (16)

A chorus of conservative commentators echoed McConnell's view that Congress lacked the power to enact the For the People Act. Former Federal Election Commission member Hans von Spakovsky told a House committee that the bill unconstitutionally "interferes with the ability of states to determine the qualifications of their voters, to secure the integrity of the election process, and to determine the districts and boundary lines of their representatives." (17) Cato Institute scholar Ilya Shapiro labeled the bill "an unconstitutional abomination" because it "undermines basic principles of federalism." (18) For the same reason, former Department of Justice official J. Christian Adams testified that the bill was "grotesquely offensive to the Constitution that vests power in the state legislatures to determine the manner of choosing Representatives." (19) Summing up this position, the National Review, the house organ of contemporary conservatism, editorialized that the bill was "a frontal assault on the Constitution"--"the most comprehensively unconstitutional bill in modern American history." (20)

To say the least, then, the battle has been joined over Congress's authority to pass sweeping electoral reforms like those in the For the People Act. This question of congressional clout is my subject in this Article. Surprisingly, scholars haven't previously examined the full scope of Congress's power to regulate elections, under the whole array of relevant constitutional provisions. (21) These provisions really are an array; they number more than ten, in total, fixing the metes and bounds of Congress's electoral authority in more detail than any other congressional power. Yet the existing literature has mostly neglected this unusual profusion of constitutional text, focusing instead on Congress's ability to legislate under particular clauses or on particular topics. (22) This work is helpful, but it fails to convey the totality of the authority that Congress should and does possess over elections under the entire Constitution. The work tends to shine a narrow beam when what's needed is a floodlight.

You may have noticed my use of the normative: the electoral power that Congress should enjoy. Before addressing the influence that Congress does wield, under current doctrine, I think it's important to explain why, in a vast nation like ours characterized by checks and balances, the separation of powers, and federalism, we should prefer congressional electoral regulation to the alternatives: elections regulated by the states or by the courts. The reason is essentially Madisonian. It's very difficult for a faction, in the Framers' sense of a group that pursues its own interest at the expense of the public interest, (23) to seize control of the federal government. To do so, the group's members would have to win election after election in districts, states, and the country as a whole; and they would have to remain allied despite their cultural, political, and geographic differences.. It's therefore unlikely that Congress would enact factional electoral legislation, suppressing or diluting votes to benefit a certain group. It's more plausible that congressional electoral supervision, when it occurs at all, would arise under more benign conditions: either bipartisan consensus that action should be taken or supermajority control by a single party committed to democratic progress.

In contrast, factional electoral legislation is easier to imagine at the state level. States lack the scale and diversity of the country in its entirety. States' legislative chambers are also both structured on the same basis--equal district population--and usually don't allow minorities to block measures from advancing. These features make states more susceptible to capture by a single group that can then manipulate the electoral process to consolidate its hold on power. Factional control of the courts is more readily achievable, too. It takes just five appointments, in particular, to gain a majority on the Supreme Court. These appointments can't be stopped by the House, the congressional chamber that more accurately reflects the will of the electorate. And when a likeminded President and Senate manage to make these appointments, the Court's consequent decisions are final under all but the most exceptional circumstances. The checks and balances that restrain the other branches of the federal government, that is, mostly don't apply to the Court.

It may seem odd to subject the courts to Madisonian factional analysis. The courts, after all, are the heroes of Carolene Products: the impartial arbiters tasked with intervening when self-interested politicians "restrict[] those political processes which can ordinarily be expected to bring about repeal of undesirable legislation." (24) But one of this Article's goals is to resist this way of thinking. Yes, the courts can step in when elected officials threaten democratic principles. (For example, one Court, the Warren Court, did so regularly. (25)) But the courts don't necessarily heed Carotene's admonition. (In fact, most Courts, including the current Court, have ignored it. (26)) And the courts shouldn't even be expected to do a better job than Congress defending and improving American democracy. Because Congress is less vulnerable than the Court to factional takeover, it's less likely to "restrict[] those political processes," (27) including elections, and more apt to enhance them. So Congress is better suited to playing the role that Carolene once envisioned for the Court.

Madisonian analysis is fine as far as it goes, but more than two hundred years have now passed since the Framing. Does this history substantiate the claim that congressional electoral regulation is generally more constructive than the activities of the states and of the courts? I think it does. The states have been the sources of almost all of America's democratically subversive policies. In earlier periods these included property and gender requirements...