By Kareem Caryll, J.D.
By many measures, the 2020 general election for federal, state, and local positions was a success in terms of an efficient and lawful administration of election infrastructure. In response to the ongoing COVID-19 pandemic, the laws and rules governing election administration in many states were changed to make voting safe and more accessible amid the health crisis. Some of the most prevalent changes enacted include increasing access to mail-in voting by mailing actual ballots or applications, expanding in-person early voting opportunities, increasing the number of ballot drop boxes available, and relaxing deadlines and requirements. As a result, the 2020 presidential election had the highest turnout for a presidential election in 120 years. Two-thirds of the voting-eligible population — 157 million Americans — voted in the presidential election and 98% of counties in the United States experienced an increase in participation over 2016. While turnout was high, available data shows that the number of rejected mail-in / absentee ballots was generally lower than in the 2016 and 2018 elections.[1]
Despite the success, these changes, many of which had been proposed by voting rights advocates for years, were met with significant resistance. As of January 5, 2021, over 600 lawsuits have challenged pandemic-related changes. President Trump and his presidential campaign have consistently cast doubt on the legitimacy of election results with allegations of fraud based on little to no documented evidence. While courts and election officials have repeatedly rejected these claims, their impact on Republican state legislatures and voters — as well as prominent Republican politicians who have seized on this issue — should not be underestimated. In fact, as state legislatures craft their agenda for 2021, Republican lawmakers in Georgia and Pennsylvania have stated their intention to roll back pandemic-related voting changes and increase burdens on the right to vote through policies such as additional photo ID requirements. There is a lot of data that show these burdens disproportionally fall hardest on minorities as well as low income communities.
Following the 2020 election, at least 30 states will have a Republican majority in both of their respective state legislative chambers. This, coupled with narrow Democratic majorities in the House of Representatives and the Senate, leaves the recent pandemic-related advances in voting rights in a precarious position. While traditional means of protecting voting rights through state action remain available, Congress has constitutional mechanisms at its disposal to strengthen access to the franchise. This post will focus on the federal congressional elections rather than presidential, state, and local elections, which entail other constitutional provisions.[2] Specifically, it will review the Elections Clause and Article I, Section 5, Clause 1, the latter of which has rarely been invoked as a tool against voter suppression, if at all.
The Elections Clause
State governments enjoy the primary responsibility of managing the “time, place, and manner” of elections. This has resulted in a highly decentralized and heterogenous election system that is often justified as a traditional deference to state government and the desire to allow states to experiment and drive innovation that may later inform national policies.[3] Notwithstanding this power, the federal government has the ability to “make or alter” regulations related to federal congressional elections through the Elections Clause. There is little debate over the expansive abilities of Congress in this space. Supreme Court jurisprudence has reaffirmed that Congress’ power over rules related to federal elections is quite expansive, acknowledging that “it is well settled that the Elections Clause grants Congress ‘the power to override state regulations’ by establishing uniform rules for federal elections, binding on the States.”[4] In addition to the Elections Clause, Congress can exercise its authority to regulate elections, including federal congressional elections, through several complementary constitutional provisions (e.g., the 14th and 15th Amendments).[5]
Since the 19th century, Congress has used its power pursuant to the Elections Clause and other constitutional provisions to enact laws with the purpose of making it easier for eligible voters to exercise their right to vote, including items such the Help America Vote Act (HAVA) of 2002, which created minimum standards on voter education, registration, and ballots; the National Voter Registration Act (NVRA) of 1993, which created new ways to register to vote; and of course, the landmark Voting Rights Act of 1965, which prohibited voter discrimination based on race, color, or membership in a language minority group through the enforcement power of the 15th Amendment.
While the For the People Act of 2019 (H.R. 1), which was passed in the House of Representatives, is clearly a starting point for reforms that can be sought out in this new congressional session, the recent elections provide us with data that justify additional possibilities. For example, Congress can mandate all states to allow no-excuse absentee ballots for federal elections, an idea that Senator Ron Wyden introduced in March 2020 given the uncertainty during the early days of the pandemic. While this bill did not ultimately become law, several states temporarily implemented variations of this policy. It played a role in the record-breaking turnout we saw in states like Massachusetts (71.6%) and South Carolina (64%). Increased voter participation is a good thing that we should strive for. Policies like no-excuse absentee ballots that help to increase participation should not be classified as a pandemic response. Rather, it can and should be considered as a universal rule for all states in all federal elections, as is already the law in 34 states and Washington, D.C.
Defining “duly elected” under Article I, Section 5, Clause 1
As evidenced by the failure of the 116th Congress to successfully pass significant election reforms as part of the For the People Act of 2019 (H.R. 1) and the John R. Lewis Voting Rights Act of 2020 (H.R. 4), the 117th Congress may similarly find it difficult to secure filibuster-proof bipartisan support for reforms that build on the success of the 2020 elections to protect the right to vote. Can Congress, instead, use Article I, Section 5, Clause 1 if its members believe that an individual’s election was the result of widespread voter suppression, for example?
Under Article I, Section 5, Clause 1 of the Constitution, both the Senate and the House of Representatives are the “judge of the elections, returns, and qualifications of its own members.” While the Supreme Court has stated that the qualifications for a person serving in Congress are limited to the requirements denoted in the Constitution, both chambers may be constitutionally entitled to judge whether a member is “duly elected.”[6] This determination is non-justiciable by federal courts.[7]
For House of Representatives, the process to exclude a member-elect is explained by the Federal Contested Elections Act of 1969. Under this Act, elections challenged by either the losing candidate or the House itself are referred to the Committee of House Administration. Following an investigation, the Committee can issue recommendation(s) for action, which may be approved by the House with a simple majority vote. A possible recommendation includes declaring a seat vacant and requiring a new election to be held. Unlike the House, the Senate’s procedures are dictated by precedent rather than statute, with the Rules Committee investigating and the full chamber voting on the recommendation. In past instances, actions have required a filibuster-proof majority. This was the case, for example, in 1974-75 election of the senator from New Hampshire, which ended with John Durkin taking the seat after a special election.
While Article I, Section 5, Clause 1 has not been used explicitly to combat voter suppression, it does not appear that there are any restrictions that would prevent such an exercise of constitutional authority. Per Supreme Court jurisprudence in Powell v. McCormack, Roudebush v. Hartke, and their progeny, each chamber could craft a definition of “duly elected” that incorporates its voting rights priorities. Both chambers of Congress could, for example, state that members cannot be seated if voter suppression techniques were used. The House of Representatives could find, for example, that “duly elected” representatives need to come from districts that were crafted in accordance with traditional districting principles rather than ones that are overly gerrymandered for partisan advantage. Such a definition would be especially impactful following the Supreme Court’s holding in Rucho v. Common Cause that partisan gerrymandering claims are non-justiciable in federal courts.[8]
The determination that a member should not be seated is one of great consequence, and if abused, there is a risk that the actions of the respective chambers could be construed as anti-democratic. In order to prevent this, the definition of a “duly elected” member should be made before elections are held. When the Article I, Section 5, Clause 1 is used ex ante, which is allowable, states can and necessarily will have changed their own policies in order to ensure their representatives are seated. Elections will thus be held appropriately, which would reduce the possibility of seemingly subverting the will of the people.
Congress has other tools at its disposal to further prevent abuse of Article I, Section 5, Clause 1 power. For example, each chamber could decide a supermajority is required to determine that a member should not be seated for reasons not articulated in the ex ante definition of “duly elected.” In fact, this would be in line with the power to “expel” a member of Congress for “disorderly behavior” under Article I, Section 5, Clause 2. Such a requirement may prevent against anti-democratic ex post abuse of the constitutional provision.
Conclusion
This recent election season has provided us with the valuable data for election reforms that greatly bolster access to the franchise. This should not go to waste. Before an unprecedented effort forces us back to the status quo, Congress can and should work to enshrine many of these reforms in order to move us closer to the promise of every person having their voice heard.
Thank you to Professor Nicholas Stephanopoulos for his helpful input for this post.
[1] Additional state level information is available at Ballotpedia. Last accessed on January 20, 2021.
[2] For a thorough discussion of the electoral power of Congress over elections, see Stephanopoulos, Nicholas, The Sweep of the Electoral Power (October 20, 2020). Constitutional Commentary, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3715826.
[3] Kathleen Hale, Et al., Administering Elections: How American Elections Work 53 (2015) (“The states have typically been the sources of innovation; most national policies have copied innovations already existing in some states and extended them to all states.”).
[4] Foster v. Love, 522 U.S. 67, 69 (1997).
[5] Stephanopoulos, supra at 52.
[6] Powell v. McCormack, 395 U.S. 486, 522 (1969).
[7] Roudebush v. Hartke, 405 U.S. 15, 19 (1972).
[8] Rucho v. Common Cause, 139 S. Ct. 2484, 2507 (2019).
Kareem Caryll graduated from Harvard Law School in May,
This post was originally published on the COVID-19 and the Law blog.
