H.R. 1 is a constitutional disaster in the making

The Constitution does not give Congress any power to regulate elections “alone.” Contrary to Abrams’ claim, Congress has only a secondary, concurrent power over congressional elections, an even smaller role in presidential elections and no specific role in state elections at all. H.R. 1 greatly undermines this structure. If enacted, it would be a Washington, D.C. takeover of elections on a collision course with the Constitution’s text, structure and principles—all of which put the states in the driver’s seat…

The Elections Clause that Abrams references appears in Article I, Section 4. Rather than putting “the Congress alone” in charge of elections, the Elections Clause reads: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof” (emphasis added). Thus, Supreme Court Justice Neil Gorsuch wrote last year, “The Constitution provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules.” Justice Brett Kavanaugh separately noted that the state legislative judgments about election rules “reflect[] our constitutional system of federalism.”

It is true that Article I, Section 4 says Congress “may at any time by Law make or alter such Regulations” for the elections of senators and representatives, but this power is second in text and reserved in principle. By way of text, “such Regulations” refers to those “time, place and manner” rules that a state legislature enacts in the first instance. By way of principle, in The Federalist No. 59, Alexander Hamilton described Congress’s role in regulating its own elections as a “last resort”—a power reserved for “extraordinary circumstances.”

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