Constitutional Barriers to Nationalizing Elections

In the run-up to the midterms, President Trump continues to call for nationalizing congressional elections. He has sought to initiate the process through executive orders, such as one proposing to set “a ballot receipt deadline of Election Day for all methods of voting.” The words and spirit of the United States Constitution—the bedrock textualism and originalism of conservative constitutional interpretation—say he can’t nationalize elections.

Unlike some consequential constitutional questions, it’s not a close call.

The Constitution’s framers and ratifiers weighed the idea and firmly rejected it. For example, Pennsylvania arch-nationalist Gouverneur Morris was appalled that his state did not impose minimum property-ownership qualifications for voting. As a delegate to the Constitutional Convention, he pressed for their imposition nationwide for congressional elections. Morris drew James Madison into his camp but failed to persuade many others, leaving a notable paper trail of his failure.

The Virginia Plan, which served as a starting point for the convention’s deliberations, did not include qualifications for suffrage. But, as the delegates worked through its various provisions, one of them suggested adding property-ownership requirements for members of Congress. Morris proposed instead imposing them on voters. “If qualifications are proper,” Madison reports Morris saying, “he would prefer them in the electors rather than the elected.” Although several delegates objected, Morris managed to have the issue of nationalizing congressional elections referred to a committee charged with drafting a constitution from the various resolutions passed by delegates for their final consideration.

Reflecting Morris’s concerns, the drafting committee’s records include debate over a proposal that the qualifications of voters would be the same nationally with regard to citizenship, manhood, sanity of mind, and possession of real property. At the time, ten of the thirteen states imposed property-ownership qualifications for voting in their legislatures. Most of these states imposed lower qualifications for elections to their assemblies or larger branches and higher qualifications for elections to their senates or upper chambers. No state allowed enslaved people to vote, and three southern states barred free Blacks from voting. Only New Jersey then allowed women to vote, but only single women could satisfy the state’s property-ownership requirement.

Rather than accept Morris’s proposal to impose uniform national qualifications for voting in congressional elections, the committee took the opposite approach. In all states, the first article of the committee’s draft states, the qualification of the electors for congressional elections “shall be the same … as those of the electors [for] the most numerous branch of their own legislatures.” In other words, in any state, those eligible to vote in elections for the state’s assembly could also vote in federal elections. This provision clearly and expressly left the matter to the states.

When this provision reached the full convention for consideration, Morris moved to strike it in favor of empowering Congress to set uniform national voting standards for federal elections. Madison and Delaware’s John Dickinson backed Morris’s motion, but a rising chorus of delegates from right, left, and center spoke against it.

Pennsylvania’s representative on the committee, the scholarly conservative James Wilson, reportedly declared, “This part of the Report was well considered by the Committee, and he did not think it could be changed for the better.” Virginia libertarian George Mason warned, “A power to alter the qualifications would be a dangerous power in the hands of [Congress].” Benjamin Franklin added that he did not think “the elected had any right in any case to narrow the privileges of the electors.”

Ultimately, only one state, Dickinson’s Delaware, supported Morris’s motion, and the final Constitution retained language virtually identical to the committee’s draft. Delegates then added a further clause to the Constitution expressly entrusting the time, place, and manner of holding congressional elections to the states, subject only to subsequent regulation by Congress. There is thus no express role for the president in congressional elections, let alone a grant of power for the president to act unilaterally.

The issue of national authority over congressional elections resurfaced during the ratification debates. Federalists assured supporters of states’ rights that the Constitution reserved such matters to the states. Even Madison followed the party line. In the Federalist Papers, he writes that nationalizing voting rights, “to have reduced the different qualifications in the different states to one uniform rule, would probably have been as dissatisfactory to some of the states, as it would have been difficult to the convention.” Responding to states-rights advocates at the Virginia Ratifying Conventions regarding the authority of Congress to regulate the time, place, and manner of voting, he added that such control “will very probably never be exercised.”

Following these clear constitutional strictures, subsequent nationalizing mandates on voting in federal elections have required either constitutional amendments or valid legislation. One bar states from restricting suffrage on account of race. Another does so on account of sex. A separate constitutional amendment prohibits states from imposing poll taxes in federal elections. Another provides that states may not bar persons age 18 or older from voting on the basis of age. Congress, meanwhile, has passed legislation governing the timing and manner of voting, such as setting a uniform date for congressional elections.

All of this makes one thing abundantly clear: under any mode of constitutional interpretation, presidents may not unilaterally impose their will on congressional elections. Absent express constitutional amendments or legislation on specific issues, the states run the show. Should the states or courts allow President Trump to usurp this central pillar of American federalism, elections will become yet another example of how the Constitution isn’t working.

Edward J. Larson is a Pulitzer Prize-winning legal historian.

William Cooper is the author of How America Works … And Why It Doesn’t.