The Constitution of the USA gives states the authority and delegates them the power to conduct elections. However, despite this, there are certain federal requirements that not only shape but also constrain a state’s authority and power to regulate.
The main aspect of the Constitution’s electoral regulation is that of protection. It makes sure that the rights of all those citizens who are qualified to vote are protected, in both federal and state-wide elections. Most specifically, Constitutional amendments prohibit:
- The denial of the right to vote due to race, color or previous condition of servitude vide the 15th Amendment;
- The denial of the right to vote due to sex vide the 19th Amendment;
- The denial of the right to vote due to any failure to pay a tax vide the 24th Amendment;
- The denial of the right to vote due to age vide the 26th Amendment, provided that the voter has franchise (18 years or older).
Constitutional amendments further go on to allow the following:
- Vide the 14th Amendment, a state’s congressional representation can be reduced if voters are denied access to the right to vote due to any reason excluding being a part of a rebellion or crime, and
- Vide the 17th Amendment; US Senators can be directly elected by voters of a state’s legislative branch with the most strength.
Other guarantees provided to voters by the Constitution include:
- Freedom of expression, speech, press, association;
- Protection by the Due Process and Equal Protection clauses;
Furthermore, the Supreme Court has described ‘voting’ to be a fundamental right; however, the state is allowed to infringe this right in special circumstances.
The Constitution further goes on to delineate between the duties of the Congress (i.e. federal government) and states when it comes to conducting elections. States are authorized to decide the place, manner and time of elections for Representatives and Senators, while in turn, the Congress has the power to decide the overall outcome of the elections. Even in presidential elections, states decide themselves how they will select their presidential electors and the Congress decides the day when all states make that selection.
Any challenge to a state’s regulatory authority in elections will very rarely involve the rights granted in the 15th, 17th, 19th, 24th or 26th Amendments discussed above. Challenges usually arise under the 1st Amendment which in particular affords rights of association and/or under the clauses that provide for Due Process or Equal Protection.
Federal Statutory Regulations
Help America Vote Act, 2002 (HAVA)
HAVA was passed to deal with problems such as voter access, integrity and technology. It provides both discretionary and mandatory changes to a state’s administrative powers during elections. Some of its key features include:
- For states wanting federal funding under HAVA, it enforces certain compulsory administrative procedures;
- Creation of the Election Assistance Commission (EAC), which encourages states to develop their own ‘best practices’, such as implementing a standard definition of what a valid vote is in each voting system;
- Provision of grants to those states that want to change their machinery used for voting;
- Irrespective of whether states chose to receive funding under HAVA, it provides them all with standards to detect errors in all technology used in federal elections (from 01.01.2006);
- HAVA also lays down the circumstances in which states have to provide provisional voting for federal elections;
- Provides a uniform and centralized voter registration database for all states; and
- Provides a determination on voter identification for federal elections.
Furthermore, under HAVA, all states have to develop and maintain a voter registration list which must be statewide and also computerized.
Voting Rights Act, 1965 (VRA)
The most controversial piece of federal statutory legislation that is always making headlines come election-season is the Voting Rights Act of 1965. The VRA prohibits any form of discrimination on the basis of race, color, or previous condition of servitude barring which there is nothing to disqualify a voter from any election. The VRA contains many provisions that affect all states, however, not all provisions do.
Furthermore, it provides that all states have to allow any disabled voter to receive assistance of his/her choice. States must also allow those voters who have moved to another state to cast a vote in-person at their previous polling station, if they moved less than 30 days before the presidential election. This can only be done, however, with voting for the President and Vice- President.
States must also provide bilingual ballot boxes, registration forms, etc, to those minority groups of a specific size who do not possess English proficiency and/or have high illiteracy rates in comparison to the rest of the country. Furthermore, all states must have all changes in voting processes or laws approved and vetted by the Justice Department or the U.S. District Court of the District of Columbia.
National Voter Registration Act, 1993 (NVRA)
States are required, under the NVRA, to make ‘reasonable’ effort in eliminating ineligible people voter registration lists. It also sets about a procedure that each state must follow including putting restrictions on states wanting to eliminate registered voters from the list only because they failed to vote (which many states have wanted to exercise).
Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA)
The UOCAVA demarcates federal and state duties towards uniformed members and overseas citizens who are absent during elections by ensuring that they can vote by an absentee ballot.
Voting Accessibility for the Elderly and Handicapped Act, 1984 (VAEHA)
The VAEHA is intended to provide improved access for elderly and handicapped voters to voting facilities.
Who runs the show?
Although one may be inclined to think that due to all these constraints, the federal government not only controls state election regulation but in the process also greatly limits a state’s democratic mandate, reality remains that control vests almost entirely in the hands of the state-governments and it is in fact the federal legislative machinery that perpetuates the democratic process further. The federal government has fairly limited powers, despite what the aforementioned examination of statutes may indicate and this is due to the Constitution itself. And it is due to this control of the states that results in the maladministration of the American electoral system. This is because states are poorer in comparison to the federal government, for obvious reasons, and therefore, also less capable of handling projects of such magnitude (such as elections). In turn, states then go on to sub-delegate elections to local counties, which are in an even less of a position to conduct elections of any level. And since states are always run pre-dominantly by one party only, elections are more likely to be politically manipulated than in the federal government. This obviously opens the door for a lot of abuse. . As long as states control elections, the system will always be prone to problems.
There has been some effort by non-partisan groups such as the Brennan Center at New York University to work on the system using the criticisms leveled against the 2012 elections. However, until the federal government takes over the running of elections, the structural problems of the American electoral system will continue to exist, because.
Works Cited
Bureau of International Information Programs- U.S Department of State. "USA Elections in Brief." n.d.
Douglas, Joshua A. "The Supreme Court's Conflicting Approach to Federal and State Regulation of Elections." The Huffington Post 8 October 2013.
Jones, Douglas W. "Problems with Voting Systems and the Applicable Standards." Testimony before the U.S House of Representatives' Committee on Science. Washington D.C, 22 May 2001. Document .
Toobin, Jeffrey. "Why Americans Can't Vote." The New Yorker 4 December 2012.
