The article was researched and written by students in Fordham Law’s Democracy Clinic.
Administering the upcoming 2020 presidential election poses unique challenges in light of COVID-19. To say the least, traditional in-person voting at polling sites runs antithetical to social distancing guidelines. Yet the reality is that Election Day will move forward regardless of the pandemic. It is highly unlikely that Congress will vote to cancel or postpone the election. And the Constitution does not grant the president the authority to alter the date of Election Day without congressional approval. The question, then, is how do we ensure that the presidential election occurs safely and smoothly?
There are a variety of proposals for allowing voters to cast their ballots during the pandemic from lawmakers and expert groups, such as the Brennan Center and the Ad Hoc Committee for 2020 Election Fairness and Legitimacy. Proposals typically range from staggered in-person voting, limits on the number of voters per polling site, extended voting hours, increased polling sites, curbside voting options, and enhanced hygiene protocols at polling sites. However, universal access to vote-by-mail is one of the most widely supported proposals. Senators Amy Klobuchar (D-MN) and Ron Wyden (D-OR) have introduced legislation to mandate universal access to vote-by-mail in all states. Under this voting framework, voters would not be required to vote-by-mail, but all voters would be guaranteed access to a mail-in paper ballot.
Expanding vote-by-mail options will encounter political, practical, and legal challenges.
On the political front, President Trump has complained that under Democratic plans for expanding early voting and voting by mail “you’d never have a Republican elected in this country again.” Trump has said he believed vote-by-mail has been abused to hurt Republicans, and that he would “not stand for it.” Republican leaders have also said that they were committed to fighting state-level statutes that could expand absentee balloting in Michigan, Minnesota, Arizona, and elsewhere.
As for the practical challenges, the National Conference of State Legislatures (NCSL) has highlighted some logistical difficulties with holding an election using universal access to vote-by-mail. Among other concerns, the NCSL argues that universal vote-by-mail raises security and financial concerns, and could lead to slower vote counting. The security of an all-mail election may be compromised through coercion by family members or others in voters’ homes. Additionally, all-mail elections increase printing costs and require specific equipment to accurately read the ballots. Beyond the cost, there is a concern about whether it is feasible to print enough ballots for all voters in time for the election. Finally, elections with high numbers of mail ballots may slow down the vote-counting process, especially if a state’s policy is to allow ballots postmarked by Election Day to be received and counted in the days and weeks after the election.
At the root of legal hurdles to Congress taking steps to expand vote-by-mail is the lack of clear constitutional authority for Congress to regulate how votes are cast in presidential elections. Article I, Section 4 gives Congress the power to determine the “Times, Places, and Manner” for choosing members of the House of Representatives and the times and manner of choosing senators. But Congress is not granted the same range of powers over the process for selecting presidential electors. In fact, Article II, Section 1 says the states shall appoint electors in the manner that the state legislatures decide, and that Congress has the power to determine the “time of [choosing]the electors.” The contrast between the provisions for congressional and presidential elections creates an inference that the framers meant to deny Congress broad discretion over how presidential electors were selected. Unfortunately, a robust historical analysis of framing intent is beyond the scope of this article.
The analysis here is focused on four possible approaches to expanding access to mail voting that are consistent with Congress’s powers under the Constitution: (1) relying on Congress’s inherent powers to regulate presidential elections, especially under the Necessary and Proper Clause; (2) finding authority in the Fourteenth Amendment’s Equal Protection Clause; (3) requiring states to implement universal access to vote-by-mail for congressional elections with the expectation that it will lead the states to make the same access available for the presidential contest; and (4) conditioning federal funding on providing universal access to vote-by-mail. Ultimately, the best approach may be the latter option of using funding to incentivize states to expand access to mail voting.
Constitutional Authority Over Presidential Elections
The Supreme Court has at times asserted that Congress has extensive powers over all federal elections, including presidential elections. The Necessary and Proper Clause has provided a basis for many of these pronouncements. But there is not a clean, doctrinal statement about the extent of congressional authority to regulate presidential elections, especially as it relates to mail voting, so the extent of Congress’s power is unclear.
One of the original appeals to the Necessary and Proper Clause for congressional authority over federal elections was in Ex Parte Yarbrough, also known as the Ku Klux Cases. In that case, the Court ruled that the Necessary and Proper Clause authorized a statute under which several people were imprisoned for intimidating a Black man who was attempting to vote in a congressional election. The decision held that congressional regulation was legitimate despite an inability to “place [a] finger on words which expressly grant” congressional power. The Court also based its reasoning on Congress’ power over the “Times, Places, and Manner” of elections for members of the House as well as the Fifteenth Amendment, which protects the voting rights of Black people. The decision asserted that the Fifteenth Amendment was based on the “principle” that Congress had the responsibility to protect all citizens’ right to vote. Although Yarbrough involved a congressional election, the Court suggested that Congress had similar powers to protect the integrity of presidential elections. The Court observed that it was a “necessity of the government … that the votes by which its members of congress and its president are elected shall be the free votes of the electors, and the officers thus chosen the free and uncorrupted choice of those who have the right to take part in that choice.” But the Court’s reference to presidential elections was dicta, not binding precedent.
The Court’s jurisprudence on Congress’s authority over presidential elections is complicated by McPherson v. Blacker, a case decided a mere seven years after Yarbrough. In McPherson, the Court affirmed emphatically that “the appointment and mode of appointment of electors belongs exclusively to the states.”
Four decades later, in 1934, the Court in Burroughs v. United States drew on the reasoning in Yarbrough to find federal regulatory authority over presidential elections. In Burroughs, the Court upheld a statute that required disclosure of donations meant to influence presidential and vice-presidential campaigns. The Court stated that Congress had “clear” authority to protect presidential elections from corruption, given the importance to the presidency in the country’s system of government. Later decisions from the Court expanded the logic of Yarbrough and Burroughs.
That expansion came in the 1970s and appeared to increase congressional power to regulate elections. In Oregon v. Mitchell, the Court rejected a constitutional challenge to a provision of the Voting Rights Act that changed the minimum voting age. The justices in the majority did not sign onto a single opinion, but in Justice Black’s opinion announcing the Court’s ruling he cited the Necessary and Proper Clause as support for Congress’s authority to set a minimum voting age in federal elections. Black reasoned that the national government must have the “ultimate power … to fill its offices under its own laws.” He continued, “It cannot be seriously contended that Congress has less power over the conduct of presidential elections than it has over congressional elections.” Black cited the Act’s requirement for access to absentee ballots as part of Congress’ attempt to “insure a fully effective voice to all citizens in national elections.” Three years later, in Kusper v. Pontikes, the Court favorably cited the assertion in Mitchell that “with respect to elections to federal office, however, the Court has held that Congress had the power to establish voter qualifications.”
Buckley v. Valeo, the landmark campaign finance case that succeeded Mitchell and Kusper, cited Burroughs to observe that the Court had found “broad congressional power to legislate in connection with the elections of the President and Vice President.”
But several concurrences and dissents over the decades have favored reading Article II, Section 1 in the same way the Court did in McPherson. For example, in dissenting from the 1983 decision in Anderson v. Celebrezze, Justice Rehnquist cited McPherson as the keystone to state sovereignty in determining the manner of presidential elections. And the Court’s per curiam decision in Bush v. Gore cited McPherson for the proposition that states have broad authority to determine how their electors are appointed. A successful argument for the constitutionality of a federal law that required mail voting would need to rely on Yarbrough and Burroughs and assert that mail voting was essential to protecting voting rights and warding off a threat to the nation’s system of government and democracy.
Equal Protection of Ballot Access
An alternative argument might assert that Congress has a responsibility to ensure equal access to ballots because COVID-19 threatens some voters more than others. For example, elderly voters are less likely to be able to go to the polls because they are at a higher risk of contracting a severe case of the virus. The same could be said of voters who are pregnant or have high-risk family members at home. The Fourteenth Amendment’s assurance of “equal protection under the laws” could provide the ground for congressional action requiring states to expand mail voting. The Supreme Court has used the Equal Protection Clause before to protect voting rights. For example, in Harper v. Virginia State Board of Elections (1966), the Court struck down a poll tax in Virginia on Equal Protection grounds because it impinged on the right of citizens to vote.
Analysis of vote-by-mail legislation on Equal Protection grounds would need to address whether the proposal was mandatory universal vote-by-mail (where an election is conducted entirely by mail ballots across the country) or universal access to vote-by-mail (where voters have the option of casting their ballots by mail). This distinction is important because an Equal Protection challenge triggers a balancing test based on the level of scrutiny ascribed to a given class. Because the reason that some voters will not be able to access the polls is not within the auspices of an elevated class of scrutiny, such as race, the scrutiny level will be rational basis. That standard means that the state merely needs to provide a rational basis for failing to provide access to mail voting, and the exorbitantly high cost of an all-mail election could likely satisfy this standard. In contrast, merely expanding the absentee option would not be nearly as costly and stands a better chance of surviving the rational basis test should the Equal Protection challenge make it to court.
Using Congress’s Authority Over Congressional Elections
If Congress used its power over the “Times, Places, and Manner” of elections of members of Congress to expand vote-by-mail in congressional elections, states would probably find it easier administratively to provide the same access to mail voting for the presidential election. As one commentator on the Help America Vote Act put it, “[S]tates will presumably continue to conduct presidential elections in the same way, at the same time, with the same personnel, at the same places, and using the same equipment and procedures as they administer elections for Congress. Thus, changing the rules for congressional elections does so for presidential ones as well, and the power Congress possesses over the former operates as a de facto power over the latter.” This approach to expanding mailing voting would probably be effective, but it would stop short of guaranteeing that voters would have the choice to cast mail ballots in the presidential election.
Incentivizing States to Expand Mail Voting
Given Congress’ uncertain constitutional authority to regulate the manner of conducting presidential elections, legislation requiring states to expand mail voting could be vulnerable to a challenge based on the Tenth Amendment in that it encroaches on states’ authority. But the legislation could probably withstand such a challenge if it incentivized states to expand access to mail voting in exchange for federal funding.
The Tenth Amendment states “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In New York v. United States (1992), the Supreme Court held that the Tenth Amendment and the limits on the scope of Congress’ powers under Article I prevent the federal government from compelling states to enact or administer a federal regulatory program. If a federal law compels state legislative or regulatory activity, the statute is unconstitutional even if there is a compelling need for federal action. And the Court subsequently observed that a statute that commandeers state governments to implement a federal mandate undermines political accountability and blurs the separation of powers.
The United States has a highly decentralized election administration system. The entities that do the rubber-meets-the-road functions of running an election are typically on the county or city level, with the state and the federal government occupying roles as well. The result is that no state administers elections in exactly the same way as another state, with variation in election administration even within the states.
It follows that any federally mandated universal vote-by-mail system would be implemented at the state, county, or city level. State governments would be responsible for carrying out the federal universal vote-by-mail program.
The Seventh Circuit in ACORN v. Edgar (1995) rejected an argument that directing states to implement federal election regulations would violate the “anti-commandeering” requirements of the Tenth Amendment. ACORN upheld the validity of congressional regulation of registration procedures for federal elections under the National Voter Registration Act of 1993. The court asserted that the Constitution’s Article I, Section 4 clearly contemplates that states have the burden of administering federal elections. It would follow, then, that the clause is direct authority for Congress to regulate states as to the “Times, Places and Manner” of congressional elections.
However, this “direct” constitutional authority is only explicit as to the manner of holding congressional elections—not presidential elections. Therefore, federal legislation mandating the manner of holding presidential elections may be vulnerable to a Tenth Amendment challenge in a way that regulation of congressional elections is not.
While Congress cannot direct states to implement a federal program outright, it is not powerless. To the extent that there are gaps in Congress’s power to regulate presidential elections, Congress might use the Spending Clause to condition the receipt of federal monies upon compliance with federal regulation. The Court in New York held that Congress can attach strings on grants to state governments and through these conditions induce state action that it cannot directly compel. In South Dakota v. Dole (1987), the Court said that the purpose of the program must be related to the general welfare and the condition must be clear, unambiguous and wholly related to the federal interest. Congress generally has broad power to set conditions of receipt of federal funds in areas it might not be able to regulate, but, the Court recently stated, when “pressure turns into compulsion,” the legislation is unconstitutional.
Congress has repeatedly employed the power to further broad policy objectives by conditioning the receipt of federal money upon compliance with federal statutory and administrative directives. The power of Congress to authorize expenditure of public money for public purposes is not limited by the direct grants of legislative power found in the Constitution, as the Court in South Dakota observed. Objectives not thought to be within Article I’s enumerated congressional powers may nevertheless be attained through the use of the spending power and conditional grants of federal funds. In considering whether a particular expenditure is intended to serve general public purposes, the Supreme Court has indicated that courts should defer substantially to the judgment of Congress.
Therefore, Congress can probably condition the receipt of federal funds on the adoption of universal access to vote-by-mail. The vote-by-mail mandate is certainly in the federal interest: The purpose of the program is to keep the public safe and in their homes in the midst of a pandemic. The condition (expansion of vote-by-mail) is wholly related to this interest. So long as the conditional language is stated clearly and unambiguously, such federal legislation could likely withstand a Tenth Amendment challenge.
Congress must consider ways to ensure that no citizen is disenfranchised by COVID-19. Fortunately, universal access to vote-by-mail offers a promising pathway forward for the presidential election. In spite of the aforementioned legal challenges, Congress can implement it by conditioning the state receipt of federal funds on the adoption of universal vote-by-mail.