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Congress will soon decide whether to changethe American electoral system. Several privatecommissions—one headed by former presidentsGerald Ford and Jimmy Carter—have alreadyreached their conclusions and proposed changesto the way we run our elections.Since the founding of this country, state andlocal governments have had primary responsibil-ity for running congressional elections. Congresshas the authority to override state and local reg-ulations regarding congressional elections,although the Founders foresaw this power beingused only in “extraordinary circumstances.” Theevents of 2000 were not “extraordinary.”Congress should preserve the primacy of thestates in electoral administration. If Congressdecides to spend federal tax money on elections,the funds should go to the states without anystrings attached. Nationalizing electionsthrough federal mandates would be a constitu-tional and policy mistake.Until now the election reform debate hasignored the need to preserve the integrity of elec-tions. Voters have at least the obligation to regis-ter and to be informed enough to cast a ballotsuccessfully. Seeing election reform as a collec-tive problem to be solved solely by collectiveaction is a profound error that may harm theRepublic.The states should be free to make their owndecisions about voting equipment and voter reg-istration systems. Congress should reform theMotor Voter law by removing the obstacles thathave ruined many voting lists. States should con-sider sharply limiting absentee and other votingoutside the polling place. Provisional voting willprove costly both in direct outlays and in delay-ing election results. Election Day should not be anational holiday. Media projections of electionresults do little harm and should not be banneddirectly or indirectly by government. Voters needmore education, a goal served by more competi-tive elections and an end to current restrictionson campaign finance.
Election Reform, Federalism, and the Obligations of Voters 
by John Samples
 _____________________________________________________________________________________________________
John Samplesisdirector of the Cato Institute’sCenter for Representative Government.
Executive Summary
No. 417October 23, 2001
 
Introduction
Following the disputed presidential elec-tion of 2000, Congress seemed ready to movequickly to reform American elections. Conflictsoon replaced consensus, however, especiallyin the House of Representatives, and other,more pressing issues filled the congressionalagenda. Congress is now expected to addresselection reform in the fall of 2001.While Congress worked on other issues, sev-eral commissions examined the putative short-comings of American elections and proposedreforms. A commission headed by former pres-idents Gerald Ford and Jimmy Carter reportedfirst,
1
followed shortly by reports from a loosealliance of liberal organizations
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and from theNational Council of State Legislatures,
3
theNational Council of Secretaries of State,
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andstate and local election administrators.
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Thefindings of these groups may well inform poli-cymaking in Congress.Until now, most of the debate about elec-tion reform has focused on technical details,perhaps because of Florida’s legacy of hang-ing chads and residual votes.
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This paper willtake a broader look at election reform.Improving America’s elections is more than amatter of buying better machinery for regis-tration and voting. Election reform, likemuch of our politics, involves our deepestconstitutional and political values. Thispaper will examine proposals to reform elec-tions in light of those values.
ConstitutionalConsiderations
Most reformers look to the federal gov-ernment to improve elections. However, fromthe beginning of the Republic, state and localgovernments have had primary responsibilityfor electing the president. In Article II, sec. 1,the Constitution grants state legislatures thepower to decide how to select presidentialelectors. Although much of the controversyin 2000 concerned the presidential election,most of the debate about election reform willfocus on the power of Congress to regulateelections throughout the nation. The stateshave also traditionally administered electionsto the House and the Senate. Nationalizingadministration of congressional electionswould depart from settled practice. Would itcontravene the Constitution? Answering thatquestion requires a clear and distinct idea ofthe constitutional basis of congressionalauthority to regulate the administration offederal elections.
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The Constitution confers authority onCongress to regulate congressional electionsin Article I, sec. 4, clause 1 (the so-calledElections Clause):The Times, Places and Manner ofholding Elections for Senators andRepresentatives, shall be prescribedin each State by the Legislaturethereof; but the Congress may at anytime by Law make or alter suchRegulations, except as to the Placesof chusing Senators.The second section of the clause allowsCongress to override the states in regulatingelections. This override was controversialfrom the start. During the ConstitutionalConvention, two delegates tried and failed tostrike the section that begins “but theCongress may at any time. . . .” Speakingagainst that deletion, James Madison said thecongressional override assumed “the StateLegislatures will sometimes fail or refuse toconsult the common interest at the expenseof their local conveniency or prejudices.”
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During the ratification debate, the anti-Federalist opposition to the Constitutionattacked the Elections Clause, arguing that apredatory Congress would assume full con-trol over all elections to rig the continual elec-tion of “the wealthy and well-born.”
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Thatcritique forced James Madison, AlexanderHamilton, and others to justify and explicatethe Elections Clause.In
Federalist 
no. 59, Hamilton notes thatthe Constitutional Convention could have
2
ImprovingAmerica’s elec-tions is more thana matter of buy-ing bettermachinery forregistration andvoting.
 
given authority to regulate elections to thenational government alone, to the statesalone, or to both. Hamilton recounts theconvention’s decision:They have submitted the regulationof elections for the FoederalGovernment in the first instance tothe local administrations; which inordinary cases, and when no improp-er views prevail, may be both moreconvenient and more satisfactory;but they have reserved to the nation-al authority a right to interpose,whenever extraordinary circum-stances might render that interposi-tion necessary to its safety.
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The Constitution clearly establishes a pre-sumption that the state governments are toregulate congressional elections largelybecause, as Madison said at the Virginia rati-fication debate, the states are “best acquaint-ed with the situation of the people.”
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Thatpresumption could be overcome, Hamiltonsaid, in “extraordinary circumstances.”According to the original understanding, theConstitution did not establish an unrestrict-ed right of the national government to over-ride state regulation of elections; it could doso only in “extraordinary circumstances.”What were those circumstances in the view ofthe founding generation?On this question, Madison and Hamiltonoffer slightly different answers. For the latter,the federal override prevents the state govern-ments from destroying the union. He worriedthat if the states had exclusive control, a few“might accomplish the destruction of theUnion, by seizing the opportunity of somecasual dissatisfaction among the people (andwhich perhaps they may themselves haveexcited) to discontinue the choice of membersfor the Foederal House of Representatives.”
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Madison later gave a similar account of thereasoning of the convention on this point atthe Virginia ratification debate.
13
Madison supplemented Hamilton’s view ofthe Elections Clause. The convention, Madisonsays, “thought that the regulation of time,place, and manner, of electing the representa-tives, should be uniform throughout the conti-nent.” By this he did not mean that the nation-al government should impose a detailed blue-print on states and localities. Instead, Madisonbelieved the national government should over-ride state regulations to avoid gross injustices:“Should the people of any state by any meansbe deprived of the right of suffrage, it was judged proper that it should be remedied by thegeneral government.”
14
In sum, the founding generation did notbelieve Congress had plenary power to regu-late state elections. Defenders of theConstitution, not to mention their anti-Federalist opponents, saw the ElectionsClause as favoring state primacy in almost allsituations, save for Hamilton’s and Madison’sexceptions. A Congress attentive to the origi-nal understanding of the Constitution wouldavoid federal control over elections absentextraordinary circumstances.
15
In retrospect, the presidential election in2000 was simply a close contest dependenton a recount in one state. National unity didnot come into question nor do we have con-vincing evidence that officials denied anyonethe right to suffrage, though someAmericans, as always, did not successfullycast ballots.
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Moreover, survey data indicateAmericans were more satisfied with theirdemocratic process after the 2000 electionthan after the 1996 contest.
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Neither theelection nor the electoral systems used by thestates constitute the “extraordinary circum-stances” foreseen by the Founding genera-tion.
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Accordingly, the constitutional basisof a federal override of the states is absent.Without that foundation, Congress shouldnot set about regulating state elections.It should also be recognized that thecourts have asserted broad de facto constitu-tional authority for Congress to override vir-tually any state regulations on elections. In1880 the Supreme Court stated:If Congress does not interfere, ofcourse [electoral regulations] may be
3
The foundinggeneration didnot believeCongress had ple-nary power toregulate stateelections.
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