In the event that there’s unified Democratic government in Washington next year, electoral reform is likely to be high on the agenda. Debates about such reform revolve around not just its policy merits but also its constitutionality. In that vein, I’ve just posted an article, forthcoming in Constitutional Commentary, whose thesis is that Congress should and does possess sweeping authority to regulate federal and state elections. The abstract is below.
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.