What role does the Constitution set out for Congress in elections?

0:04For me, it's easy to think about the Constitution as covering two areas, voter qualification standards and time, place, and manner regulations. If we just want to talk about it from a purely U.S. constitutional perspective, that is how the Constitution divides up election regulation. When we talk about time, place, and manner regulations, particularly as it applies to federal elections, Congress has a lot more power in that space than it does in the context of voter qualification standards. With respect to voter qualification standards, usually Congress can regulate pursuant to the 15th Amendment. If a state has discriminated on the basis of race, or if a state has discriminated on the basis of age or sex, those provisions of the Constitution empower Congress to act, is very similar with individual litigants as well. Individual litigants have the power to bring claims

0:54pursuant to the Constitution to protect their voting rights. If they feel like they have been discriminated against, pursuant to any of those provisions, they can also sue. With respect to election administration, when it comes to state elections, states have much broader authority in that space. The Constitution doesn't explicitly say, states have control over their own elections under the Constitution.

1:16That's just how the Supreme Court has interpreted the Tenth Amendment. This is power that the states retain over their own elections. In some ways, the 14th and 15th Amendments are really broad incursions into that power because they apply to both state and federal elections in a way that the elections clause doesn't because it only applies to federal elections. To sum up, congressional power is at as high as ebb when we're talking about federal elections and in particular, when we're talking about regulate in time, place, and manner.

1:45Under that umbrella, could be any number of things. When states set voter registration systems, when states draw congressional districts. These are examples of manner regulations that Congress can come in and say, We don't want to do that, we want to do something else, and they can pass a new law. But when a state says that someone has to live in a state for two weeks before they can register to vote or 30 days or whatever, it's very difficult for Congress to come in and disturb that. Really, it's a mix of Supreme Court decisions, constitutional texts, individual litigants trying to protect their own voting rights as it applies to them, Congress's ability to pass broad laws like the Voting Rights Act to impose a uniform national standard on some issues. No race discrimination in voting is a uniform national standard that we have all gotten behind because our view is that our electorate should be inclusive. But there are still things that states and states alone determine.

2:41But I think that's like the general structure.